R v Tooth [2013] NSWDC 120

District Court New South Wales

Medium Neutral Citation: R v Tooth [2013] NSWDC 120 Hearing dates: 08/02/2013 Decision date: 11 February 2013 Jurisdiction: Criminal Before: S Norrish QC Decision: Sentenced to a term of imprisonment of 2 years and 1 week with a non parole period being 12 months. Catchwords: CRIME - Sentencing, deal with proceeds of crime, plea of guilty, cooperation, parity, special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Ehrlich [2012] NSWCCA 38 SZ v The Queen [2007] NSWCCA 19 The Queen v OPA [2004] NSWCCA 464 R v AMT [2005] NSWCCA 151 R v Sukkar [2006] NSWCCA 92 Lowe v The Queen 1987 Green v The Queen [2011] HCA 49 R v Jimmy (2010) NSWLR 540 Wong v The Queen (2001) 207 CLR 584 Pearce v The Queen (1998) 194 CLR 610 R v JCE (2000) 120 A Crim R 18 R v Zamagias [2002] NSWCCA 17 R v Douar [2005] NSWCCA 455 Category: Sentence Parties: Director of Public Prosecutions - Crown William Richard Tooth - Offender Representation: Director of Public Prosecutions Ms Mendes - Offender Director of Public Prosecutions Mr C Murnane - Legal Aid NSW File Number(s): 2010/ 370548

SENTENCE 1HIS HONOUR: Mr Tooth, my practice is to tell people in advance what sentence I propose to impose. In your case I do propose to impose a term of full-time custody. That term of full-time custody will be two years and one week and your non-parole period will be twelve months. I will give my reasons for that. I make it very clear, had the ultimate sentence with the relevant discount which I am prepared to give you been two years or less, I still would not have been persuaded to suspend the term of imprisonment, having regard to the features of the case that I will refer to in my remarks. 2William Richard Tooth appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and continued his plea of guilty in this Court in respect of a breach of s 193B(3) Crimes Act 1900. 3The particulars of the charge are that on 22 July 2010 at Sydney in the State of New South Wales he did deal with the proceeds of crime, to wit, $1,102,384, being reckless as to whether it was the proceeds of crime. 4This offence carries a maximum penalty of ten years imprisonment and has no standard non-parole period. 5I have told the prisoner, as is my practice, what sentence I propose to impose in this matter and my earlier remarks to the prisoner should be incorporated into these remarks on sentence. Ultimately, for the reasons I am about to outline, I determine that the starting point of the sentence to be imposed on the prisoner before any discount for the plea of guilty and the cooperation of the prisoner should be four years six months. I have determined that the combined discount for the cooperation and the utilitarian benefit of the prisoner's plea of guilty should be fifty-five per cent and in that regard its component parts are respectively twenty-five per cent for the plea of guilty, twenty per cent for past cooperation and ten per cent for future cooperation, given the guarded evidence that was given to me concerning Mr Tooth's requirement, if any, to give evidence in the trial of the co-accused. 6The background to the matter with which I am concerned requires me to point out that in May of last year I sentenced Bashrun Bothra to a term of imprisonment in respect of the offences to which he pleaded guilty. Mr Bothra was an employee of the Westpac Bank and he pleaded guilty to an offence contrary to s 193B(1) Crimes Act 1900 in respect of dealing with the proceeds of crime that I have already identified, knowing that it was the proceeds of crime, and intending to conceal that it was the proceeds of crime. That offence carried a maximum penalty of twenty years imprisonment. The prisoner's plea of guilty was entered at the first reasonable opportunity and I thus gave him a discount of twenty-five per cent for the utilitarian benefit of the plea and I gave him a discount of twenty-five per cent for his past and future cooperation, it being the case at that point that he was to give evidence in the matter, his evidence particularly concerned with the activities of a Mary Ji, who was a fellow bank employee. 7The remarks on sentence in relation to Mr Tooth will need to take into account in part the remarks on sentence I made in relation to Mr Bothra, particularly in respect of various facts and circumstances that provide a context or a background to the facts that directly relate to this accused. 8I pause for a moment to note that there are currently three people who are awaiting trial in Sydney. Andrew Musamici, who I will hereinafter refer to Musamici, Mary Ji and Maroon Kabbout. These three, I am informed, are to face a joint indictment alleging a breach of s 193B(1) Crimes Act 1900, respect of the transaction in which the prisoner was involved, and also will be facing other charges such as participating in a criminal group contrary to s 93T Crimes Act 1900, dishonestly assisting another person to obtain a financial advantage pursuant to s 192E(1)(b) of that Act and other matters. 9I also point out that I have appointed today as the date for the sentencing of this prisoner, the plea having been conducted last Friday, on the basis that I understood that the trial of the co-accused was scheduled to start in the Sydney District Court today. Whilst I accept that all relevant material has been tendered or provided to the parties, the parties have not been informed yet of any intention to call the prisoner. 10May I pause for a moment Mr Crown? I did raise this matter in the absence of Ms Mendes. What's happened with the trial? 11QUEENAN: I did make inquiries. It's been stood over until Wednesday. 12HIS HONOUR: Until Wednesday, I see. Thank you. 13In order to understand the facts of this matter, I was provided with a facts sheet similar to but in some respects different from the facts that were provided in relation to Mr Bothra's sentencing. I accept in light of information that has come to the notice of the Crown since I sentenced Mr Bothra, there has been some change in the character of the facts as they might relate to Mr Tooth. 14I must say - and this is no disrespect to the learned Crown Prosecutor who appears in this matter - the facts that I was provided, to my mind, were not complete and I could be excused for feeling a little misled as to the import of those facts, particularly once I had the benefit of the evidence of the Inspector who is in charge of the investigation whose contribution to the proceedings before me shed some light on the matter, in fairness favourable to the prisoner that might not otherwise have been picked up from the facts provided. 15The matters that concern this Court at the moment arise out of the fact that a Westpac Bank customer named Michaela King, who was a customer of the Bank, who, as I understand it, attended regularly the Neutral Bay branch, had taken from her bank account without her knowledge and without her approval, the sum of $1,102,354, and transferred to an account in the name of the prisoner, William Richard Tooth. 16How this came about in terms of what occurred at the bank is set out in considerable detail in the judgment relating to Mr Bothra. But to summarise the matter, Bothra was an employee of Westpac Bank at Neural Bay under the supervision, as I would understand it, certainly under the influence to some extent, of Mary Ji, who I have earlier referred to. 17The Crown case is that Ji particularly had entered into an agreement with the two people who are identified otherwise as the organisers of the criminal activity with which I am concerned to remove money from an account or the accounts of a Westpac customer, and as it transpired launder those funds by transferring them to the account of Mr Tooth who, under instruction from Mr Kabbout, on one version of the facts available to me, or under the instruction of Mr Prasdie, moving those funds to different sources in circumstances I will outline. I do not propose to reiterate much of the detail that appears up until the monies were transferred on 22 July 2010. 18On that date, a person who police believe to be Rosalind Knappet, attended upon the bank and went directly to the office of Mr Bothra. Mr Bothra clearly knew what was about to happen. This person posed as Ms King and purportedly authorised the telegraphic transfer of the sum of money set out in the charge brought against the accused to a bank account under the control of the prisoner. 19The funds that were deposited in the accused's account were disbursed to several other banks. Five hundred and fifty thousand dollars was remitted to the National Australia Bank to pay out a mortgage over a property in the name of the prisoner's then partner. I will come back to the prisoner's explanation for this transfer. 20The statement of facts presented to this Court assert that Mr Tooth was earlier involved in using valueless cheques to try and pay out the same mortgage, the details of which, as I would understand it in the convoluted way the matter came before me, in para 87 of the Agreed Statement of Facts. 21There is no criminal allegation against the prisoner in relation to that matter and all that can be gleaned from the attempts by the prisoner to pay out the mortgage, given the financial circumstances in which he and his partner were at the time, is that it exemplified the prisoner's desperation in a financial sense. 22However, a further $500,000 was transferred to a CBA account in the name of William Tooth and then $110,000 was transferred to an account in the name of Matthew Fuller. According to the statement of facts I was given: "Fuller is the owner of a finance company and he had been contacted by and spoken to Tooth on a number of occasions. It was his understanding that Tooth was going to lend him the funds so he could lend those on for a profit." 23After passing the funds to Fuller, the prisoner sent a fax to Fuller requesting that he transfer the funds to the account in the name of Bresem. Bresem is referred to an "alternate remittance dealer" based in Auburn. 24I went to the statement the prisoner gave which is the basis of the evidence to be given by Mr Tooth should he be called upon to give evidence. That makes clear, as it sheds light upon the facts with which I am concerned, a number of matters, firstly, as I said earlier, to explain the circumstances in which the prisoner committed the subject offences. The prisoner was desperate to overcome the financial difficulties arising from business arrangements between himself and his partner, particularly concerning a café that was located in Mount Victoria NSW that they had been running for some period of time beforehand. His desperation led him to attending the Flemington Markets to endeavour to find people that might assist him in relation to his financial woes. 25He said in his induced statement: "I went to the markets and walked around asked a few people about getting some money, about borrowing some money. I asked the people behind the stalls. I know how to talk to these people, I've been in gaol and I guess I look shifty enough for them to trust me. By shifty I mean not a 'square head', that is a person who always follows the rules a hundred per cent like a normal person does, but a person who kind of lives on the edge of doing things properly. There's no way they would trust me if they thought I was a square head. They would probably think I was a policeman or something - something, trying to catch them out. Anyway, I walked over to Fresh Express. That's where these guys had told me to go and speak to Andrew." 26'Andrew', of course, is Andrew Musamici who, as I said earlier, along with, on the facts available to this Court, Kabbout, and to a lesser extent along with Prasdie - although I am told by the prisoner, and I do not doubt it, that Prasdie was merely an acolyte of Musamici - were the architects of the scheme. It would appear that the architects of the scheme had recruited Ji at the bank and she had recruited Bothra. 27The prisoner's statement goes on to explain the circumstances in which the transfers were made by the prisoner. Of the $500,000 transferred to the CBA account, the prisoner took out a cheque he said for $390,000. That was made payable to Sashan Maske saying that Prasdie asked him to do that, obviously at the instigation of Musamici. 28So far as the $110,000 was concerned, the prisoner's account is that he told Prasdie about a 'bloke he knew' - I am using his words - in South Australia called Andrew Eustice, a man he had been in gaol with earlier. He went on to explain that Andrew Eustice put him on to his father, Ken Eustice, who the prisoner described as "a bit of an old scallywag" and ultimately he got back to Prasdie who was told about people that the prisoner knew in South Australia and he, that is, the prisoner, was told to fly to South Australia to "sort it out". 29The prisoner went on to tell the police in the induced statement that: "Ken has a second-hand car yard and he introduced me to a bloke called Matthew Fuller. Fuller runs a finance business in South Australia - he does finance for the car yard that Ken owns. I spoke to Fuller and he was happy to sort things out so I transferred $110,000 into his NAB account from my CBA account. Prasdie had a change of heart. All of a sudden he didn't want Fuller to have the money but it was too late, I'd already transferred it to him." 30Thus it came to pass that disputes arose as to the circumstances in which the prisoner had dealt with $500,000 of the $1,100,000-odd that had been transferred from the victim's account into his account. 31What emerges from all these facts, including taking into account the prisoner's evidence and accepting it at its highest, is that the accused, who I accept had no knowledge of the manner in which the money had been transferred into his account and certainly was not involved in planning that part of the operation, had agreed to launder money provided from a source, that he was reckless to its integrity and that $550,000 went to his personal benefit for a year, as a loan from the organisers, that was expected to be paid back. The other $500,000 was transferred at the direction of the "architects" of the scheme. But the prisoner had in fact facilitated at least $110,000 being transferred to Fuller as a person who might be able to, in the short term at least, use the money, one would have expected, for the purposes of those who claimed that they were 'entitled' to it. That is, the architects of the scheme. 32The prisoner gave evidence before me that he did not receive any direct fee or sum of money that was to be permanently his. What he got was the benefit of the $550,000 to be used to pay off the mortgage held by his partner and relief from the pressures that had caused him to commit this crime for a year. This was a very significant advantage indeed, as no doubt the objective facts speak. The prisoner had no means directly to repay the money at the time that it was transferred to the NAB, however, in his induced statement he spoke of the hope that he and his partner would be able to sell properties and the like to acquit the loan when required. 33As it has turned out, although I do not have direct evidence of this, the NAB and the Westpac Bank have fallen to commercial blows so to speak as to who is entitled to that money. Clearly it is the case that there has been occasioned to the Westpac Bank the loss of the funds transferred from the victim's account. She, of course, has not suffered any permanent loss because the bank, given its employees' criminality, would be obliged to compensate her for the ostensible loss. And apart from the $9,000 that I referred to that had been recovered from Mr Bothra, which was in his possession at about the time of his arrest, no moneys have been recovered. 34So whether it is Westpac bearing the loss or NAB bearing the loss, through agreeing to pay back the money to Westpac having received the money for the purposes of the discharge of the security or securities linked to Mr Tooth and his partner, the loss is significant. 35The prisoner in his statement did not provide any details as to who paid for his airfare to fly to South Australia to 'sort it out' with Mr Fuller or matters of that nature. But perhaps they are matters of little importance in the detail and ultimately they are not matters of any great concern to me. 36What I am prepared to accept, of course, from the evidence contained within the documents that have been tendered and from the evidence of the officer in charge of the matter, who gave extensive evidence before me last Friday, is that the prisoner was in contact with police some weeks before 31 October 2010. It is quite clear in the statement of facts and from the evidence of the officer in charge that the prisoner's connection with this fraud, of which the prisoner had no knowledge directly, was easily established once his identity was established from the account into which the money that was the proceeds of crime had been deposited. 37The prisoner gave a very lengthy record of interview which the officer in charge said was full and frank and the details of the information he provided and the details then of the various things that he did to assist the police investigation are set out in the statement of facts from para 81 through to para 121, by and large. 38When one read those facts, one might have been excused for thinking that the prisoner, in the course of a police surveillance operation, had continued his criminal connection with Mr Musamici and others. It transpires in circumstances that are set out in the affidavit and report that were tendered as exhibit B that the prisoner was acting at the instruction of the police, cooperating with the police investigation. 39There is no need for me to go through the detail of the prisoner's cooperation and the extent of the cooperation chapter and verse. 40It is the case that the officer in charge of the matter in his evidence to this Court made a number of observations about the prisoner's cooperation which shed considerable light on the report that was tendered and the agreed statement of facts which, as I say, on the face of it appeared to present a different picture than the one that has emerged from all the evidence. 41What the Inspector said amongst other things (and I have taken into account all of his evidence although I have not had the benefit of a transcript of last Friday's proceedings to assist me), was that he accepted that the prisoner committed the offence under considerable financial pressure, that he was fully frank both when he gave his electronic interview and when he gave his induced statement exactly one year later on 31 October 2011. 42In relation to his cooperation the prisoner had done all that could be done to facilitate the ongoing investigation in the manner set out in the report. He acted in accordance with all the instructions that were given and the officer had direct concerns about his safety throughout the period of the operation. He described his cooperation as "extraordinary". It was a level of cooperation that he had never seen before. He indicated that there had been no promise of indemnity to the prisoner and in his evidence he compared the cooperation of the prisoner with that of Mr Bothra which I was required to assess last year. 43Whilst he accepted that Mr Bothra had been fully cooperative, he assessed the prisoner's cooperation as above that of Mr Bothra. He said to mix two metaphors that arise, that the prisoner had "put the jigsaw together" and his cooperation had been the "cement between the bricks" that the prosecution was building against the organisers. He accepted as a fact that it was inevitable given his open link with the transfer of monies that the prisoner would be detected as a person of interest and ultimately arrested. He accepted the prisoner's account which I accept that the prisoner acted at the direction of Mr Musamici and Mr Prasdie and the other principal. 44He said that the reason that he had made an application for immunity from prosecution for the prisoner was because of the extent of the prisoner's cooperation and the change in his lifestyle. All this evidence I accept. I will come back to assessing the issue of cooperation shortly. 45One of the matters of significance in this sentencing exercise is the prisoner's past criminal history. The prisoner is now fifty-nine years of age and to his credit, up until he became involved in a series of frauds conducted over the 1990s, he had not been involved in any criminal activity. His criminal history in chronological order shows that firstly he was convicted at the Brisbane District Court on 20 December 1999 in respect of, as I would understand the criminal history, charges of attempted fraud. For each of these matters he was convicted and sentenced to a term of imprisonment which was wholly suspended. 46His criminal history that has been tendered provides various details of sentences imposed in 2000 and 2001 but does not assist the Court in properly understanding the character of the offending. This is met by the information contained within the Crown's written submissions about which there was no issue taken by learned counsel for the accused. To cite the Crown's written submissions, in April 2000 the prisoner entered pleas of guilty to what were referred to in the written submissions as "the Wollongong matters" being eight charges contrary to s 178BA, a section now repealed, but which was a provision concerned with obtaining financial advantage by deception. A further twenty-three charges were placed on a Form 1. These charges spanned a period of time between August 1989 and March 1998 and related to approximately $1.6 million. 47The prisoner also on the same date pleaded to two charges contrary to s 178BB, making false statements, with another twenty-three offences placed on a Form 1. These charges related to approximately $760,000. These matters I hasten to say were summarised in the judgment of the Court of Criminal Appeal that was delivered in relation to an appeal by the prisoner against his sentence. 48In October 2001 the prisoner entered a plea of guilty to two charges, as I would understand the criminal history, at the Goulburn District Court in relation to offences pursuant to s 300(2) of 'use false statement'. These charges allegedly related to approximately $415,000. The prisoner was on bail in relation to the earlier offences that he had committed when these offences were committed. It would explain the separation of them from the other matters. 49The Crown quotes from the judgment of the Court of Criminal Appeal the observation, relating to the prisoner's sentences, that his criminality stretched over a period of some eleven years and involved frauds of a very substantial nature having regard both to the acts of criminality involved and the money obtained. 50I note in relation to the evidence the prisoner gave through his affidavit as he outlines his history, that in respect of the matters with which I am dealing now he stated, "When I was in my forties I met a number of business people that were crooks. I committed a number of serious offences and was sentenced to prison from the age of forty-seven until I was fifty-three years old". 51In fairness to the prisoner I do not believe the content of the affidavit is materially false or wilfully false, but it must be said it does not reflect the full picture of the extent of his criminality and it seems with respect, although he was not questioned about this and I draw no inference adverse to him about this, he seems to blame the others for this predicament. 52The upshot of his sentencing in the District Courts in which he appeared in 2000 and 2001 was that he received an overall sentence of eight and a half years imprisonment with a non-parole period of six and a half years. He had entered pleas of guilty and provided some assistance to the authorities. He was, according to the Crown submissions - and I accept it to be true because it was not the subject of challenge - released on parole in November 2006 and remained on parole until November 2008. 53The Crown pointed out in relation to the matter that the offence with which I am concerned occurred, on the Crown's submission, eighteen months after the expiry of the non-parole period. On my calculation, more accurately, twenty months or twenty-one months. But, be that as it may, I advert to these matters in some little detail because not only does it shed light on the bald facts stated in the criminal history but it also sheds light on a submission made by on behalf of the accused that the prisoner had a break in his criminal conduct for a period of ten years. That may be true but a number of those years, six plus, were spent in custody. 54In any event, the prisoner in his affidavit to the Court and in his oral evidence which adopted the affidavit outlined his background. He is a man from a farming community near Griffith. His parents had a property at Coleambally. There is no need to go into great detail about his background. He had some tensions with his mother and his father died when he was in gaol in 2003, as I would understand the chronology. 55He left school at the end of year ten and he was involved in farming and his first wife and he purchased a farm in which his parents were part owners. When he was thirty years of age he started a crop dusting business but after six years he had to declare himself bankrupt when the business went badly. He had a falling out with his wife and eventually separated and apparently he had a falling out also with his mother in relation to the family interest in the farm which he had endeavoured to buy out. 56Whichever way one looks at it whilst he was under various domestic pressures, there was nothing remarkable about those matters. Clearly he got into financial difficulties which in part contributed to the offences that he was sentenced for earlier as I have outlined. I have already dealt with the issue of his explanation for his involvement in those offences which is cursory to say the very least. 57What is more germane to the matters with which I am concerned is the fact that he, after separating from his wife and being sentenced to a term of imprisonment, met another woman but he separated from her whilst in custody. When he was released from custody he re-established a relationship with who I understand was to be his second wife. They bought a café in the Blue Mountains (at Mt Victoria), ran the business together and he worked very hard to try and make it work but he got into the financial difficulties that are set out in my earlier outline of the facts. 58The business failed, they separated and his explanation for the commission of this crime was his desire to obtain money to assist his partner which, of course, would have assisted him both emotionally and financially given his interests, in a physical sense at least, in his wife's business affairs. 59There may be something else at the background of this, perhaps his previous bankruptcy or bankruptcies - I am not told directly how many bankruptcies he has had - which may have prevented him from investing in that business. In any event, it is neither here nor there. Clearly when he went to Flemington Markets to try and get assistance in raising money he was acting as much in his own interests as the interests of his partner. 60Since his arrest for this matter the prisoner has moved back to the Coleambally area. His son owns a property in that area and he has been assisting in the work of the property and he has developed a close relationship with his grandchildren and says that the three children, as I understand it, of his first marriage are close to him. He has remarried and his wife supports him and she has attended the Court as have members of his family. 61He has given up alcohol in recent months because of ill-health and he would wish in the future to assist his son with his farm. He does not have any mental illness and the major physical inconvenience he has had in recent times was a reason for some delay in this matter. I have medical evidence regarding a fistula that was diagnosed and treated. There is a history of bowel disease in his family. He has only one kidney, he donated one to a cousin who was suffering from renal failure about "six years ago". He has some blood pressure problems. He has indicated a willingness to give evidence against Musamici, Kabbout and Ji and in court signed an undertaking to that effect. As I have earlier pointed out no positive or concrete decision has been made about the need for him to give evidence, but the Inspector who gave evidence was inclined to believe that he would give evidence at some time in the future. He may be required to give evidence on a number of occasions if called upon to do so. The prospect of him giving evidence may induce guilty pleas. 62With regard to the medical situation of the prisoner, several reports have been tendered over the last few months largely to explain the treatment for the anal fistula and to provide the prisoner with an opportunity to have that treatment given his personal inconvenience. This has been granted to him on each occasion that it has been sought. The most recent evidence I have from the surgeon is that his condition will resolve. He is otherwise fit to return to "usual work". He may continue to have some minor inconvenience and his condition may need some monitoring, but there has been a significant improvement in his condition as at the writing of the last report in early February from his circumstances in November of this year. 63So far as the prisoner's evidence of his personal circumstances are concerned and the evidence he has given about his cooperation and his regret for his involvement in this matter I accept it, and his evidence is in material respects of course supported by the evidence given by the Inspector. 64I have also available the evidence of a friend who attended court, Mr O'Brien. Mr O'Brien was not called upon to give evidence but his reference notes his contact and association and knowledge of the prisoner over seventeen years and he speaks of the prisoner's attempts to reform himself on his release from gaol, the extraordinary number of hours and the hard work he put into his wife's business and the investment of emotion and time and the like in that regard. 65He states the prisoner is a friend who is always of assistance to others, assisting those less fortunate than himself. He has fully explained his involvement in this matter to Mr O'Brien and he supports what the prisoner has said about restarting his life and endeavouring to look forward rather than look back on his previous misdemeanours and wrongdoing. He says in his reference that Mr Tooth is "a different person to man portrayed in his criminal history and the man who has committed the offence that he is to be sentenced for". I accept that the prisoner has taken positive steps to change his life for the better. 66The critical issues that arose in the conduct of this sentence proceeding - before I get to the examination of some of the detailed matters that are required under the relevant legislation - were, not in order of importance, firstly, an assessment of the extent of the prisoner's cooperation and the calculation of an appropriate discount for that cooperation, secondly, an assessment of, of course, the appropriate sentence having regard to all relevant objective and subjective matters, including relevant aggravating and mitigating factors and of course assessing the relevance of the sentence I imposed upon Mr Bothra to the sentencing of the prisoner on this particular occasion, amongst other matters. 67With regard to the issue of assistance - not dealing with these matters in necessarily their order of importance - I am required to have regard to assistance in two ways. One way, of course, is the fact that his assistance along with other matters including his sworn evidence before me is relevant to the assessment I make in his favour that the prisoner has shown remorse for the offence in that he has accepted responsibility for his actions and acknowledged the loss caused by his actions. He is in no position, I hasten to say, to make reparation. 68His assistance, of course, is also a matter to be taken into account under s 23 for the purposes of considering the discrete discount that may be appropriate in this matter. In that regard s 23 provides the Court with the discretion to impose a lesser penalty than would otherwise be appropriate to recognise assistance given or to be undertaken in the future to law enforcement authorities in various ways. 69I am required to assess, amongst other matters, the significance and usefulness of the prisoner's assistance to the authorities taking into account any evaluation made of it, the truthfulness, completeness and reliability of the information, the nature and extent of his assistance, its timeliness, benefits that the prisoner has gained or may gain, whether the prisoner will suffer harsher custodial penalties, any damage or risk of danger or injury to the prisoner and other matters spoken of from time to time in the common law, particularly in the context of leading authorities such as The Queen v Cartwright (1989) 17 NSWLR 243. 70With regard to the issue of any discounts, as I have said, the prisoner pleaded guilty at the Local Court at the first reasonable opportunity and is entitled to a discount of twenty-five per cent for that fact alone. There are differing views as to whether the discount for cooperation should be fixed to only be taken into account after the discount for the utilitarian benefit of the plea of guilty has been applied. I remember a judgment of the late Justice Hodgson of the Court of Criminal Appeal on this matter, in his usual logical way he pointed out that mathematically a prisoner receives a lesser total discount if that approach is a two-staged approach. There are, however, a number of authorities of the Court of Criminal Appeal that have approved a global approach which works to the prisoner's benefit. It is not a matter that anyone has troubled me with and I propose to act accordingly. 71There are, as the written submissions make clear, a number of authorities that are required to be considered in relation to the issue of calculating an appropriate discount some of which are cited by both parties. There is the decision of Ehrlich [2012] NSW CCA 38, particularly cited by the defence which I have taken into account. There is the decision of SZ v The Queen [2007] NSW CCA 19, particularly Justice Howie indicating, in the context of previous judgments one of which he was involved in of Sukkar, that a combined discount for pleas of guilty and assistance should not normally exceed fifty per cent save for exceptional cases. He said amongst other things, "An overall discount of more than sixty per cent, however, will rarely if ever result in a sentence that is not manifestly inadequate". 72The defence has taken me to the decision of The Queen v OPA [2004] NSW CCA 464 and the decision of R v AMT [2005] NSW CCA 151 which appear to be what might be called in general terms "comparative" cases of discounts greater than twenty-five or thirty per cent for a particular cooperation. 73The bottom line for the defence is that it is "an exceptional case" here, calling for a discount "in the order of sixty per cent" for the combination of past and future assistance and early plea. 74There is also the decision of Sukkar which was the first major re-evaluation of appropriate combined discounts in the context of the impact of the discount for the utilitarian benefit of a plea of guilty (see [2006] NSWCCA 92). Having sentenced Mr Sukkar at first instance and being corrected by the Court of Criminal Appeal, I am well-familiar with it. 75The Crown cites Buddin J in SZ, one of the cases referred to by the defence, where Buddin J acknowledged what Latham J had said in Sukkar, that: "There will be cases in which a combined or composite discount of more than fifty per cent is called for, there may well be a case in which the assistance is of a quite extraordinary kind." 76His Honour went on to say that a discount exceeding fifty per cent would be reserved for an exceptional case. 77This brings me back to Mr Bothra and to some extent the issue of "parity" of sentencing as it is addressed in the written submissions of the defence overlaps. In that regard, I determined in my "wisdom" that Mr Bothra, for the extent of his cooperation, should receive a combined discount of fifty per cent. 78I accept, on the evidence available to me, that the prisoner's cooperation, at least past cooperation proven in court, is greater than Mr Bothra's. Whilst Mr Bothra was forthright and provided relevant information, the prisoner, at personal risk, has been involved in a controlled operation of some complexity occurring over a lengthy period of time. The difficulty of course in this matter is balancing appropriate recognition of this compared to the circumstances of Mr Bothra, but not providing a discount which would lead to what might otherwise be a "manifestly inadequate" sentence as was discussed in the authorities to which I earlier made reference. 79Ultimately, in the context of the report that has been provided to the Court and the most helpful evidence of the inspector, I have determined that the discount the prisoner should receive for the past assistance should be greater than that provided to Mr Bothra and should be calculated at twenty per cent. 80Unfortunately, or fortunately, as the case may be, the evidence about the prisoner's requirement to give evidence in any forthcoming trial for the co-accused was somewhat equivocal, and whilst I acknowledge the Detective indicated from his perspective on balance it would be the case that Mr Tooth would be required to give evidence, I have also been informed that no indication had been given to the defence of that fact as of Friday, the trial being listed to start today. 81Ultimately, of course, I must give the prisoner some benefit for future cooperation in the manner of a percentage discount in the expectation that he will give evidence, and I do so on the basis that he may be required to give evidence on more than one occasion, but ultimately the discount for future cooperation is slightly less than that of Mr Bothra for the reasons I have outlined. 82I hasten to say that even if it was proper in this case to give a combined discount of up to sixty per cent as was argued for the accused, I underline the fact that if it had brought the sentence down to just below two years, I still would have been required to impose a term of full-time custody. The fact that someone may be sentenced to a term of imprisonment of two years or less does not automatically lead to the conclusion that it must be suspended, and particularly in this case for reasons I will come to in a moment. 83In relation to the issue of parity, I accept the submissions of the defence that flow from decisions going back to Lowe v The Queen in 1987, the High Court judgment in Green from 2011, and most recently so far as the Court of Criminal Appeal is concerned in terms of the detailed analysis, the decision of R v Jimmy (2010) 77 NSWLR 540. Campbell JA gave a very lengthy judgment reviewing all the authorities, and with him Howie and Rothman JJ generally agreed. 84Howie J stated, as set out in the written submissions of the accused: "The principle, whether it is called parity or proportionality or relatively between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have been actually laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [2003] of his judgment." 85Rothman J pithily summarised it as follows: "Based upon Aristotelian principles of equality, alike must treated alike and unalike must be treated to the extent of their unalikeness." 86Here, of course, it is not an easy matter. Bothra pleaded guilty to an offence carrying a maximum penalty of twenty years. The prisoner pleaded guilty to an offence carrying a maximum penalty of ten years. Bothra by that plea admitted greater knowledge and had an intention that this prisoner did not have. This prisoner admits to being 'reckless' to dealing with the proceeds of crime. 87Bothra was critical in that he facilitated the electronic transfer, and on the basis of what is alleged against Ji, they both were in a position of trust to effect that matter. 88The prisoner's involvement in the criminal enterprise might be regarded as lesser but it was important nevertheless. The prisoner has offered greater assistance. Both pleaded guilty at the earliest opportunity. 89This list of matters that I have just outlined is taken from the helpful written submissions of the accused. What is not revealed in this list, of course, is that the benefit to the prisoner was greater than that offered to Mr Bothra in the sense that whilst Mr Bothra believed that he was going to get paid something over $100,000, in fact he only got paid $9,000, and the prisoner, as I have pointed out, was able to apply $550,000 to his own benefit, that is, to further the financial interests of his wife, in circumstances where he knew at that point he had no means to repay the relevant loan. 90I appreciate in his induced statement he talks about the risks to his safety that arose out of not repaying the loan. It was not a conventional gentlemen's agreement and he had a problem that he had to address. 91I also note the prisoner's involvement in laundering the entire proceeds in the manner that he was directed to do, admittedly, to fulfil the interests of the architects by the means that I have previously outlined. 92I also note in relation to the matter that the prisoner was, of course, unaware of the means by which the proceeds of crime had been passed to his account, but he certainly was aware of who the architects were and that one of the architects was a person who, in his induced statement, was a person of very poor reputation. 93Bothra was, of course, considerably younger than Mr Tooth and, by reference to the written submissions of the defence, further, Bothra had a very minor record. Admittedly one matter for dishonesty, which surprised me at the time permitted him to be employed by the bank. But the prisoner had a very extensive history of dishonesty. 94The defence said that this was between the years 1998 and 2000. As I understand the facts of the matter as I have outlined them, the prisoner's involvement in those crimes went over a lengthier period of time that obviously remained undetected. The prisoner, in relation to that offending, had committed offences whilst on bail. When one adds it up, the prisoner had been 'dishonest' in the sense particularised in those charges in respect of sums of money in total, admittedly with other people with interests as well, exceeding $2,000,000 as I calculate it. 95This brings me to a matter that was the subject of some debate. It is correct that the prisoner's criminal history, unlike that of Mr Bothra, entitles the prisoner to no particular leniency. I have also ultimately concluded, however, that his criminal history is an aggravating factor in this matter pursuant to s 21A(2). 96There are several reasons for this. I note, as I have already pointed out, the prior record admittedly relating to convictions recorded in 1999, 2000 and 2001 was for offending over a number of years and left the prisoner in custody for over six years, later to commit this offence, as I have pointed out, about twenty months, perhaps twenty-one months, after his parole period had expired. 97But there are two other features to be pointed out, taken from the prisoner's induced statement. It is clear on the prisoner's induced statement, and what I understood of what he said in the electronic interview, that the prisoner committed this crime because his wife was in financial trouble and he needed the money and he was desperate. In relation to his reasons for committing the previous crimes, he said in the induced statement: "I regret what happened now but at the time my business was in trouble (by) committing at least some of these crimes I was able to keep getting income and try and keep my business going." 98The parallels between the excuses or reasons for past offending are self-evident. 99Then there is the reason that the prisoner went to the markets to seek assistance. Now I accept, as the Inspector said, the prisoner had an innocent purpose in being at the markets from time to time. But it is quite clear on his induced statement that he went to the markets to speak to people who would be able to get him money in circumstances that were somewhat less than legitimate. In other words, from persons that were not, to use his expression with which I am familiar, "square heads". That is how he came to meet Musamici and I note in relation to that matter, even before a penny had been withdrawn from the victim's account, that the prisoner was well aware that Mr Musamici was a man of very poor reputation. 100He said of Mr Musamici: "He's been at the markets for years and he does really well for himself. He makes that out that he's a big gangster and everything and makes a big deal of the fact that he beat a conspiracy to murder charge a few years ago." 101Be that as it may, I have concluded that the criminal history of the prisoner is a significant matter that distinguishes him from Mr Bothra. Of course, the starting point of any sentence, having regard to parity principles, for this prisoner must be less than that of Mr Bothra and I have already foreshadowed that the starting point for this prisoner is, on my calculation, two years less than that that I fixed for Mr Bothra. 102I noted in this regard by reference to the weighing of the different considerations that arise in sentencing, what is often forgotten about the majority decision of Pearce v The Queen (1998) 194 CLR 610, particularly at [39], [42] and [46] in the vicinity of [45] where their Honours dealt with the issue of the need to fix an appropriate sentence for each offence when sentencing an offender for multiple offences, running the majority's observations together: "It is highly undesirable that the process of sentencing should become any more technical than it is already. It should, however, be emphasised that (where the sentences are to be concurrent or not) is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of commonsense, not as a matter of semantics. ... Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision." 103Similar sentiments were expressed by the High Court in Wong v The Queen when it struck down guidelines for sentencing in Commonwealth importation offences. (See Wong v The Queen (2001) 207 CLR 584, particularly at [77]). 104With regard to the matters that arise both from the written submissions of the Crown and the defence and the oral submissions of the learned counsel for the Crown and the defence, amongst other matters I have had close regard of course to s 3A of the Crimes (Sentencing Procedure) Act. Whilst I accept that the prisoner has made a change in his life since being charged in relation to this matter, particularly noting his cooperation with the police, the bottom line is that the crime that he committed requires to be adequately punished. There is required still, in the sentencing of this prisoner, giving full favour to everything that has been put on his behalf, a need to incorporate into the sentence an element of both general and personal deterrence. 105True it is the Court is required to promote the rehabilitation of the offender, but that has to be understood in the context of making him accountable for his actions, denouncing his conduct and recognising the damage done to the community and particularly to the Westpac Bank (or the NAB). 106With regard to the written submissions of the Crown, I note what it said about factors relevant to assessing the objective seriousness including the maximum penalty, the seriousness of the offence in context, and in that regard I appreciate what was said in the written submissions and of the offences that are specifically provided for in s 193B. This offence is the least serious of the three alternatives as reflected in the various maximum penalties. 107With regard to s 21A(2), I have already referred to the record of previous convictions. I am satisfied beyond reasonable doubt that the circumstances in which the prisoner became involved in the commission of this offence and what he did in furtherance of the commission of the offence reflect the fact that from what I understand of his prior offending, his antecedent criminal history is relevant to show that the offence with which I am concerned is not an uncharacteristic aberration and it reflected on his part, relatively shortly after his parole period was finished, "a continuing attitude of disobedience of the law", although, as I say to his credit, since the commission of the offence there has been considerable remorse and reformation taking place. 108The truth is, to come back to aggravating factors under s 23A(2), the loss here was very substantial. Westpac has only had, at this stage, $9,000 returned to it. The prisoner was a party to this to the extent that he, through his account, permitted the laundering of over a million dollars, and as I have already pointed out, half of which, at least temporarily, was ascribed to his benefit. 109There is, apart from the commercial dispute between the NAB and Westpac banks, no evidence of any prospect of at least half of the sum of money being returned to the Westpac Bank and it may be that the $550,000 that was paid to the National Australia Bank will not be returned to Westpac. That is a matter of speculation. 110The Crown submits as an aggravating factor that the offence was part of "planned and organised criminal activity". Certainly the crime the prisoner committed involved an element of planning, but in the context of his ignorance of critical matters relating to the circumstances of the transfer, such planning as was involved is inherent in the commission of the offence. I cannot conclude that the prisoner was part of "organised criminal activity", as an aggravating factor. 111Obviously, as I have pointed out, the prisoner gained financial advantage, but again this seems to me to be inherently involved in the commission of the offence. One could think of no other reason for a person to recklessly deal in the proceeds of crime other than financial gain, and ultimately in that regard the facts speak for themselves. 112With regard to mitigating matters arising under s 21A(2), one of those matters I have already directly dealt with. With regard to the plea of guilty, that of course is a mitigating factor for which the prisoner receives a discount discretely. The prisoner's assistance to law enforcement authorities as provided by s 23 is also a relevant mitigating factor in a range of ways for which the prisoner will receive a discrete discount. 113Of course, the fact I have not found beyond reasonable doubt that the offence was not part of planned or organised criminal activity does not mean that I can find on balance that they are both relevant mitigating factors. I am prepared to find ultimately on balance for the prisoner that his involvement in this offence was, on his part, not part of "organised criminal activity". The other matter is very finely balanced. 114There are no other outstanding matters that I can resolve in the prisoner's favour. It was urged that I could find that the prisoner is "unlikely to re-offend" and has "good prospects of rehabilitation". Again on balance I could not reach those conclusions, although I give credit to the prisoner for the steps that he has taken since his arrest. Ultimately, a favourable finding in that regard could not be made at this juncture. 115With regard to the written submissions of the prisoner relating to the criminal history, it was conceded that his criminal record disentitles him to a claim for leniency, but that not that it was an aggravating factor. 116With regard to the matters that the defence relies upon concerning his likelihood of re-offending and his prospects of rehabilitation, it has been pointed out that there has been delay in sentencing. The gap between past and present offending is of no significance, given the time in custody. The prisoner is no longer involved with his former associates and is now in a stable relationship, has stable accommodation and is supported by friends. 117I note - no disrespect to Mr O'Brien - that he has remained a friend with him over the period of time that the prisoner was incarcerated. 118Further, it was submitted that the prisoner has acknowledged his guilt at an early opportunity and is now not addicted to drugs or alcohol. But again, even taking those matters into account, given his prior criminal history and given his willingness to get involved in this matter, one needs to be guarded about his prospects of rehabilitation. 119I have concluded that the prisoner is a person who requires an extended period of supervision by the Parole Authority. He requires professional assistance to adjust to community living which will be difficult in some respects for him, he also needs professional guidance in relation to his associates and in relation to the means by which he, from time to time, would seek to extricate himself from his financial difficulties. I thus have made a finding that there are "special circumstances", pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. 120I have had regard to the statistical information. I have also had regard to the two cases cited by the learned Crown Prosecutor purportedly providing some guidance in a comparative sentencing sense. They provide guidance in one sense in that they are appeals to the Court of Criminal Appeal in respect of sentences imposed for offences contrary to s 193(B) of the Crimes Act. 121But the problem is that whilst the Pearce principles were applied, each of those individual offences have to be seen in the context of a course of offending under other provisions in the Crimes Act which do not apply in this particular matter. 122The bottom line in this matter is ultimately, all matters having been weighed, that, as I have said on at least two occasions, the gravity of the offending in the context of the particular offence to which the prisoner has pleaded guilty is such that the matters that militate in favour of potential suspension of the sentence, albeit that it is not practically available in this matter, are outweighed by the objective seriousness of the offending and of course the significance of the prisoner's criminal history to an assessment of the prisoner's role in this matter and the character of the offending with which I am concerned. 123The Crown sought to submit in its oral submissions that it was the criminal history alone that militated against suspension, should I determine that an appropriate sentence be two years or less. That is not the only matter to be taken into account. 124I accept the Crown's submission, and I am sure that it is embraced by the defence, pursuant to Fitzgerald JA's judgment in JCE, that matters that are relevant in the general sentencing exercise to the determination of the appropriate sentence and the determination of the non-parole period themselves will be or may be relevant to the decision to suspend. In that regard I have also considered what Howie J said in Zamagias and what Johnson J said in the case of Douar. 125Ultimately, although with some reservations particularly in relation to the welfare of the prisoner in custody, I have determined that a term of full-time custody in overall context is the only penalty that could be imposed. Not to impose a term of full-time custody would not give sufficient weight to matters of general deterrence, denunciation and personal deterrence. 126There is one matter I just wish to address directly. It is the elephant in the room. I raised it with the Inspector. Nobody took it up on behalf of the prisoner or on behalf of the Crown. But the issue of the prisoner's welfare in custody is a matter that has deeply concerned me. I have got no doubt, having regard to what is reported about the reputation of some of the people involved in this matter, that the prisoner in custody would be at some risk. But I have no evidence as to what the character of that risk is beyond what I might infer from my own experience over the years. 127I have no evidence of what circumstances the prisoner will endure in custody. I would expect that in due course he would need to go into some form of protection which, even with his past history of imprisonment, will be something of a surprise or shock to him. 128I do accept that at large the prisoner would be at less risk of retaliation for his cooperation with the authorities, but as it transpired, what the future holds in that regard in the absence of any other evidence on the subject would be a matter of complete speculation. 129Thus, if you could stand up please. Mr Tooth. I am sorry to have taken so long but I regret to say but it is the fact that there are many things that I am required to take into account. Just regard to the written submissions might have forewarned you of this, without taking into account the matters that I have to deal with that the parties have not addressed, with no disrespect to the parties. 130In relation to the offence to which you have pleaded guilty, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of twelve months to date from today. That will expire on 10 February 2014. 131In respect of the balance of sentence, I fix a balance of sentence of one year and one week. That will expire on 17 February 2015. 132At the conclusion of your non-parole period, I direct that you be released to parole and be subject to the supervision of the parole authority and be subject to such conditions as the parole authority regards as appropriate in all the circumstances of the matter. 133As to the issue of your custody and your safety and welfare in custody, that will be a matter for the custodial authorities over which I have got no control whatsoever. 134Just take a seat, thanks very much.