R v Ahmed ARJA [2011] NSWDC 131

District Court New South Wales

Medium Neutral Citation: R v Ahmed ARJA [2011] NSWDC 131 Hearing dates: 8 April 2011 and 15 July 2011 Decision date: 15 July 2011 Jurisdiction: Criminal Before: Judge Haesler SC Decision: Count 1 - Proceeds of crime offence. Section 12 suspended sentence 15 months. Catchwords: CRIMINAL - Recklessly deal with proceeds of crime - Operation Schoale Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Sentence Parties: Regina Ahmed Arja Representation: Mr A Hallas (Offender) Ms F Gray (Director of Public Prosecutions) File Number(s): 2007/16670

SENTENCE 1The offender, Ahmed Arja, stands for sentence today having pleaded guilty to an offence pursuant to s 193B(3) of the Crimes Act 1900. That offence indicates that on 28 February 2007 at Hexham and elsewhere he did, together with another person who I will not name because his trial is due to commence in this complex shortly, dealt with the proceeds of crime in the sum of $814,000, being reckless as to whether it was the proceeds of crime. 2There are Agreed Facts and I will summarise them very briefly. 3Operation Schoale was a major New South Wales Crime Commission and New South Wales Police Force operation in relation to the importation and supply of cocaine. Two persons in particular were senior principals in this operation. Both have been charged. One was recently sentenced by me to a lengthy term of imprisonment. The other comes to trial in this complex, as I have said, shortly. Other members of the syndicate or those involved with the two principals have been charged with various offences, including those of dealing with the proceeds of crime. 4It would appear that the man whose trial is to come up shortly was a long-term school friend of the present offender. He had, for a period of time, chosen to live under the radar so far as authorities were concerned. Given what I understand to be the possible criminal charges against him, that is perhaps understandable from his point of view. He sought to utilise his friendship with the offender to assist him in moving a large quantity of cash from Queensland to New South Wales. He did not himself have a credit card. It would appear that he rang the offender and put to him a proposition about going to Queensland. The offender agreed and provided his credit card details to this other man. A flight was booked. They drove to an expensive hotel on the Gold Coast. It would appear that this night out with his friend was the reward the offender received. 5While they were at those premises police, who had the principal under surveillance and had been lawfully intercepting his telephone calls, noted that two men came to the hotel, one of whom arrived with two bags and left without them. Arrangements were made on the following day by this offender to hire a car. He did so in his own name. That car was driven from Queensland to New South Wales. Police stopped the vehicle on the Hexham Bridge just outside of Newcastle. The offender and his principal were arrested. The vehicle was searched. A bag was found and in that bag was found a total of $814,000 in cash. He was then arrested and bailed. 6The Crown accepts that the role of this offender was limited to assisting his principal with the transport of cash from Queensland into New South Wales. They also accept that, so far as his criminality is concerned, it falls below that of others who have been sentenced following Operation Schoale. They include Ms Saliba and Mr Peisley. 7In her written submissions to the Court Ms Gray, for the Director of Public Prosecutions, summarises the role of the offender in terms which are accepted by the defence and accord with the Agreed Facts: "The offender's role was that of a person assisting with the transportation of money. The money was not his. The offender was assisting the principal in moving the funds interstate by renting a car in his name and paying for it. The principal did not have any bank accounts or credit cards in his name at the relevant time". 8The offender's conduct had the potential to enable the principal to avoid detection for his role in the offence. The telephone calls indicate that this offender was participating in the enterprise, albeit it with some reluctance. The co-offender states in the call that they will need to get a car and that he required this offender's credit card. It was therefore already planned that they would be returning the next day by another means of transport than flying. 9Whilst the offence is a serious offence, the conduct of this offender was over a limited period of time (two days) and of a limited nature, being confined to the arrangements for the transportation of money. 10The present offender has some criminal antecedents. Because of them he is not entitled to leniency that would otherwise be extended to a first offender but they do not in any way aggravate the sentence that I impose. 11During the course of his bail he committed one offence, possession of a drug, for which he was fined $225. That matter does not aggravate the offence but it is of concern when I come to consider the disposition of this matter. 12There is before me in Exhibit 1 evidence that the offender suffered serious back injuries following a motor vehicle accident. I am sufficiently familiar with the nature of those injuries to appreciate that he would have been, and remains, in considerable pain. The use of illicit drugs to alleviate such pain, while not in any way condoned, is perhaps understandable. Otherwise, it would appear that he used his time on bail to lead a law-abiding life. He has a wife and three children. He has not been able to work and has accumulated debts but I am informed that he now has the capacity to resume work. 13When I consider matters such as this I have to take into account that the offence to which he pleaded guilty involves dealing with a large amount of currency. The rationale for offences such as this is aimed at stopping not only those involved in the commission of serious offences but also of associates who assist in dealing with such funds. Anyone willing to assist in the dealing of such funds are, in effect, acting as accessories to the very serious crimes committed. Here, I know that the money involved in these offences came from serious drug supply and importation matters. The impact of such crimes on the community can be immense. They are of real concern as they cause substantial harm, both economic and otherwise. 14While this offence falls towards the bottom of the range of the type of matters covered by the part of the Crimes Act 1900 concerned with dealing with proceeds of crime, it still remains a serious offence. That seriousness is reflected in the ten year maximum penalty provided. 15While "recklessness" is generally regarded as a less serious aspect of the crime than those committed by people who know the source of the funds dealt with, it is still a matter that would, given the amount of funds involved, result in a custodial penalty. Because of the offender's record, it is still in my opinion, having considered all possible alternatives, a matter that does call for a custodial penalty. 16The plea came late but I am informed from the bar table, and accept, that it still had considerable utilitarian value as the Crown had problems with witnesses. I am also aware that because of the resources required to investigate and pursue the prosecutions that arose out of Operation Schoale, those who fell to the periphery of the operation were not given, understandably, the priority accorded the principals. In those circumstances, more than a ten per cent reduction in penalty is required. When I do some rough calculations it would be less than fifteen per cent but significantly more than ten. 17In the circumstances, I can recognise the seriousness of the crime by imposing a custodial penalty but when I step back and look at the antecedents of the offender, his prospects for rehabilitation and the need to encourage that rehabilitation in the community, this is a sentence that can be suspended. 18Were it not for your plea of guilty a sentence of eighteen months would have been imposed upon you. 19You are convicted and sentenced to a term of imprisonment of fifteen months. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, I order that the execution of the sentence be suspended upon you entering into a good behaviour bond for a period of fifteen months, commencing today, 15 July 2011 with the following conditions: (a) to appear before the Court to be sentenced if called upon to do so at any time during the term of the bond; (b) to be of good behaviour; and (c) to advise the Registrar of the District Court of any change of address. 20That can be entered in the Registry on Level 3 as soon as it is taken out. 21In relation to the two goods suspected of being stolen matters on the s 166 certificate, on the application of the Director, those matters are withdrawn and dismissed.