District Court New South Wales Medium Neutral Citation: R v Ali, Ahmad; R v Elayouby, Elamira-Zahira; R v Moussa, Fouad [2020] NSWDC 56 Hearing dates: 12 March 2020; 13 March 2020 Decision date: 20 March 2020 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: Orders set out in full at [204]–[214] Catchwords: CRIME – money laundering – dealing with money intending that it become an instrument of crime – the conduct of structured transactions to avoid reporting requirements SENTENCING – subjective considerations on sentence – exceptional hardship to third parties – where an offender is a single mother and the evidence establishes on a balance of probabilities that there is no suitable placement for the child with family or friend SENTENCING – penalties – full-time imprisonment or Intensive Correction Order? Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Crimes Act 1914 (Cth), Part 1B Criminal Code (Cth), ss 11.2A(1) and 400.3(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 66 Cases Cited: R v Huang; R v Siu (2007) 174 A Crim R 370 Bugmy v The Queen (2013) 249 CLR 571 Kremisis v R [2016] NSWCCA 257 Carter v R [2018] NSWCCA 138 R v MacLeod [2013] NSWCCA 108 R v Zarafa (2013) 235 A Crim R 265 R v Pogson [2012] NSWCCA 225 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 R v Pullen [2018] NSWCCA 264 R v Fangaloka [2019] NSWCCA 173 Casella v R [2019] NSWCCA 201 Markarian v The Queen (2005) 228 CLR 357 Category: Sentence Parties: Proceedings 2017/00323112: Commonwealth Director of Public Prosecutions Ahmad Ali Proceedings 2017/00323089: Commonwealth Director of Public Prosecutions Elamira-Zahira Elayouby Proceedings 2017/00323030: Commonwealth Director of Public Prosecutions Fouad Moussa Representation: Proceedings 2017/00323112: D Jordan with E Tringali (CDPP) E Ozen SC (Offender) Proceedings 2017/00323089: D Jordan with E Tringali (CDPP) P Boulten SC (Offender) Proceedings 2017/00323030: D Jordan with E Tringali (CDPP) G James SC (Offender) File Number(s): 2017/00323112; 2017/00323089; 2017/00323030 Judgment 1. Each of the offenders has pleaded guilty to, and is to be sentenced for, the joint commission of one offence of dealing with money intending that it would become an instrument of crime. The offence is contrary to ss 11.2A(1) and 400.3(1) of the Criminal Code (Cth) and carries a maximum penalty of 25 years imprisonment, or 1500 penalty units, or both. 2. These offenders were involved in a money laundering operation, along with co-offenders Ahmad Hawchar, Belal Betka and Zouheir Ghazaoui, through which they agreed to deal with money with the intention that the money would be used as an instrument of crime – namely, the conduct of structured transactions to avoid reporting requirements pursuant to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). 3. Hawchar, Betka and Ghazaoui pleaded guilty in the Local Court and were committed for sentence. They appeared before her Honour District Court Judge Noman on 2 December 2019 and were sentenced to periods of imprisonment. I will return to those sentences and her Honour's remarks in due course. 4. These three offenders were committed for trial, their proceedings listed in the Commonwealth "Super Call-Over" in November 2019. On 29 November 2019, Mr Ali and Ms Elayouby entered pleas of guilty to what is essentially a rolled-up count. Mr Moussa entered a plea of guilty on the same basis on 13 December 2019. Although not pleas of guilty at the first opportunity, there is very significant utilitarian value having regard to the nature of the allegations and the estimated length of the trials. 5. The trials were estimated to take at least three months, the Crown having to prove some 3000 transactions. During the course of submissions, the Crown in these proceedings fairly accepted that the trials in reality may have taken between three and six months. The pleas of guilty have avoided the cost and time that would have been involved in a trial of this kind. I am satisfied that, in each case, the utilitarian value of the plea of guilty warrants a 20% reduction in sentence. 6. I accept that the Crown case was a strong one but I am satisfied that the pleas of guilty also reflect a willingness to facilitate the course of justice and, having regard to all of the evidence that has been adduced in each case, I am satisfied that they evidence remorse and contrition. The offenders could have put the prosecution to proof, particularly where, as here, the Crown had to establish numerous separate transactions. Instead, the offenders facilitated the course of justice by acknowledging their guilt. Facts 1. The circumstances giving rise to the offences are set out in two statements of agreed facts. There are three discrete disputes in the case of Mr Ali which I will address in due course. 2. Between 18 April and 23 October 2017, the offenders entered into an agreement with co-offenders Betka, Ghazaoui and Hawchar to deal with money by receiving, possessing, concealing or engaging in bank transactions relating to the money with the intention that the money would be used as an instrument of crime. 3. The cash was typically arranged into bundles, each with a "Post-It" note stuck to the top bill displaying information to assist in the depositing of the cash bundle into relevant accounts. Following the deposits, Hawchar, Betka and Ghazaoui would typically attend Mr Ali's barbershop in Bankstown where they would give the bank deposit receipts to either Mr Ali or Mr Moussa. 4. Between about 21 August and 19 October 2017, Mr Ali personally deposited a minimum of 108 deposits totalling $664,930. 5. Between about 8 September and 23 October 2017, Mr Moussa personally deposited a minimum of 59 deposits totalling $379,830. 6. Between 21 August and 19 October 2017, Ms Elayouby personally made 325 deposits totalling $1,546,646. There is no evidence that she attended the barbershop. 7. During the execution of a lawful covert search warrant at premises at Cairds Avenue on 23 October 2017, police seized three bags of cash from a locked room which contained a total of $1,259,483.75. I accept that this locked room contained a money counting machine which operated to either count the total amount of cash or divide an amount of cash into bundles or both. 8. On 25 October 2017, police executed a further search warrant and seized items consistent with that unit being used as a cash safe house, including an electronic currency counting and sorting machine, a large number of bank deposit receipts, Post-It notes and rubber bands. Mr Ali and Mr Moussa's DNA was located on cigarette butts seized at those premises. Their fingerprints were also located on bank deposit slips seized from the locked room. I pause to note that, quite apart from any evidence that Ms Elayouby gave during the sentence proceedings, there is evidence placing both Mr Ali and Mr Moussa at the premises and very likely in the locked room which contained the electronic currency counting and sorting machine and the other indicia of the money laundering enterprise located in that room. 9. Analysis of bank deposit receipts establishes that, between 20 December 2016 and 23 October 2017, over $18,000,000 was laundered in a series of deposits, each of less than $10,000, into multiple bank accounts held at five different banks. The amount of money laundered between the period 18 April and 23 October 2017, the period particularised in the indictment to which each of these offenders has pleaded guilty, was $17,000,872.70. 10. In the statement of agreed facts tendered in Ms Elayouby's sentence proceedings, it is conceded that there is no evidence that she was aware of the total amount of money being laundered during the period of her offending, although she accepts that it was a multiple of the total of deposits made by her which in itself exceeded $1 million (being the threshold for a s 400.3 offence). It is also conceded that, during the period of the offending, she was responsive to the directions of others. 11. On 18 April 2017, Ms Elayouby registered a Toyota HiAce vehicle in her name. She gave evidence during the proceedings about the particular tasks undertaken by her, and about her state of mind both during the relevant period and generally in relation to her subjective case. She was cross-examined. She impressed me as a completely honest young woman. On occasion, she responded in a way that was adverse to her interests. 12. Ms Elayouby's subjective case will be summarised in some detail below. For present purposes, it suffices to say that she came into this enterprise following a history of abuse, deprivation, isolation and poverty. I accept that she was struggling financially and was introduced to the operation, initially not appreciating that it was an illegal enterprise. 13. She was directed to register the vehicle in her name. At that time, she believed that she was going to use the vehicle in the course of the work that she was going to do, work that she described as "cash jobs". She was paid a one-off payment of $1000 for registering the car in her name. 14. At the time, she was living in a studio, essentially one room with a bathroom. She slept with her son on the sofa until such time as she was forced to sleep on the floor so as to give her son more space. Their living conditions were very basic. 15. On 9 May 2017, she entered into a lease at Reynolds Avenue in her name. The rent payable was $1868.45 per month. I accept her evidence that, when she entered into that lease, her intention was that she would live there with her son to provide them with more appropriate living quarters. Very shortly after entering the lease, Mr Moussa told her that he had been told to direct her to find another place to live as members of the enterprise were going to use the Reynolds Avenue premises. 16. I accept that, when she entered into the lease for Reynolds Avenue, she did so to provide herself and her son with more suitable living quarters, rather than to facilitate the illegal activity. She did contact the real estate agent managing Reynolds Avenue and sought to replace the mesh screen garage door with a solid Colorbond garage door and asked if she could install a security door in front of the entrance door to the property at her expense. It is accepted, by way of the agreed facts, that these requests were made by her in order that extra security would be provided for the cash house. Both requests were denied by the landlord. I have no details as to when these requests were made but I am satisfied that she was directed to make the requests and, while she may have been suspicious and even reckless at that stage, I am not persuaded that she had knowledge at the time she entered into the lease for Reynolds Avenue that the premises were to be used for money laundering. 17. Surveillance of Reynolds Avenue between 20 July and 19 August 2017 revealed that all of the co-offenders except for Ghazaoui attended that unit on multiple occasions in various vehicles. 18. On 9 August 2017, Ms Elayouby sent an email to the real estate agent managing Reynolds Avenue stating that she would return the keys because she would be going to Queensland indefinitely to help her mother who had fallen ill. This was untrue. The offender did not move to Queensland. 19. On 19 August 2017, Ms Elayouby entered into a lease at Cairds Avenue. The rent payable was $430 per week. I accept that she was directed to find another premises and am satisfied that, by 19 August 2017, she was aware and did have the requisite knowledge that the enterprise was illegal and that the premises were going to be used for money laundering activities. 20. Cairds Avenue is a two-bedroom unit with an underground garage. Ms Elayouby and her son used one of the bedrooms and bathrooms. The other bedroom was kept locked. The second locked bedroom was the bedroom that contained the money counting machine, a number of indicia of the money laundering enterprise and cash. I am satisfied that she did not have access to that room and did not participate in counting of the cash, dividing it, wrapping it, attaching Post-It notes to it, or in any other way assisting in the preparation of the cash to facilitate the various deposits. 21. The entry to this unit consisted of both the lockable metal security screen door and timber door with a key lock entry. Although Ms Elayouby was the sole occupant, together with her son, of the unit, she had no control over the cash and I am not persuaded that she fulfilled the role of protecting or securing the cash that was kept at the premises. The money was in a locked room. She did not have the key to that room. There is no evidence that she personally counted or bundled the money. 22. Surveillance of Cairds Avenue between 5 September and 25 October 2017 showed that Mr Ali, Mr Moussa and Mr Betka attended the premises on multiple occasions in a number of vehicles. 23. Between 19 October and 22 October 2017, listening device surveillance of the premises recorded a counting machine in use on multiple occasions. The listening device material records Ms Elayouby speaking with unidentified males at the unit while the counting machine can be heard. 24. At the relevant time, Mr Ali owned and ran X's Barber Shop. CCTV footage of the interior of the shop was obtained for the periods 4–29 July 2017 and 17–21 October 2017. During these periods Ali, Moussa, Betka, Ghazaoui and Hawchar attended the shop. On numerous occasions during these periods, Mr Ali and Mr Moussa were captured on CCTV handling bank deposit slips, writing on bank deposit slips and photographing them. This is accepted as part of the statement of agreed facts. 25. Mr Ali disputes that, on 21 October 2017, Mr Moussa was captured handing Ghazaoui a bundle of cash bound by a rubber band. In respect of this first dispute, the Crown relies upon stills taken from the CCTV footage which form part of Exhibit B. Having looked at that material carefully, I cannot make out what is being handed over by Mr Moussa. I cannot be satisfied that it is a bundle of cash or even a $50 note. I therefore resolve this dispute in favour of Mr Ali. 26. The second disputed issue appears at paragraph [26] of the statement of agreed facts, which states that Mr Ali and Mr Moussa used the barbershop as a meeting point for handing out cash to depositors. While there is no dispute that deposit slips were received and reconciled at the barbershop, it is a fact in issue that the shop was used as a meeting place for handing out cash to depositors. 27. The Crown relies upon CCTV footage contained in Exhibit B. I have watched that footage. On 11 July, it depicts Mr Moussa arriving at the barbershop carrying a white plastic shopping bag and going into the back room with Mr Ali. It depicts Mr Hawchar entering the back room of the shop and returning with a white plastic shopping bag and handing it to an employee. Later that afternoon, Mr Hawchar is handed a white plastic bag. He placed something in it and handed it back to the employee. 28. On 22 July 2018, Mr Betka is depicted in the footage entering the shop carrying a plastic shopping bag and going to the back room. At about 3:40PM, Moussa, Ali and Betka return from the back room, Betka no longer in possession of the plastic bag. They talk briefly before Betka and Moussa walk outside the shop. Two minutes later, Mr Moussa enters the shop carrying a plastic shopping bag and goes into the back room. He exits the back room no longer in possession of the plastic shopping bag. 29. On behalf of Mr Ali, it is submitted that I could not be satisfied beyond reasonable doubt that the plastic bags contained cash as opposed to, for instance, deposit slips. I reject that submission. Upon execution of the covert search warrant at Cairds Avenue, bundles of cash were found in a plastic shopping bag. Furthermore, the type of activity captured on the CCTV footage involving a number of the men coming in and out of the shop with the plastic bags, and the shape of the bags consistent with cash rather than deposit slips, satisfies me to the requisite degree that the barbershop was being used, on occasion, as a drop-off and pickup point for cash. I cannot be satisfied to the requisite standard that Mr Ali or Mr Moussa were directly responsible for handing out the cash to depositors. The extent to which allowing the barbershop to be a drop-off and pickup point for the cash increases the objective seriousness of the offence is modest, however, having regard to the fact that it is agreed that the barbershop was being used to receive and reconcile deposit slips. 30. On 23 October 2017, police executed a covert search warrant at Cairds Avenue. Police discovered one of the rooms was closed and locked. They gained entry and observed a number of items that were being used in connection with the money laundering enterprise. Among the items located were an electronic currency counting and sorting machine; several loose bundles of $50 notes; a large number of bank deposit receipts; Post-It notes; rubber bands; and general stationery associated with the counting and sorting of cash. Police also located $50 and $100 notes contained in a plastic shopping bag, a tool bag and a cooler bag. In total, police seized $1,259,483.75. The police then left the unit. 31. At about 12:50PM, Ms Elayouby returned to the premises and noticed the unlocked door and the cash was missing. She formed the view that the cash had been stolen. Listening device surveillance recorded her making a number of comments to herself as she walked around the unit stating, among other things, "We got robbed, we got robbed." 32. During the course of cross-examination, the Crown put to Ms Elayouby that her comments reveal that she had a sense of ownership or connection to the money that was taken from the locked room. She denied that proposition. She explained that the bedroom that she resided in with her son had also been ransacked. She maintained that her use of the phrase "we got robbed" simply reflected that she believed both rooms had been ransacked and property taken. I am not persuaded that her comments disclose a sense of personal ownership or connection with the large amount of cash that was seized in the covert raid. 33. Ms Elayouby gave evidence that she contacted Mr Moussa, who attended the premises with another male. She asked whether she should call the police and was told not to. 34. Later that day, she commenced calling real estate agents in order to secure a new apartment to rent. She emphasised the need for the apartment to meet specific security requirements such as being above the ground floor and having a lock-up garage. I am satisfied that by this time she was aware that the unit was being used as a safe house to count and divide cash that would later be the subject of deposits. I am also satisfied that, on this occasion when she was making enquiries in order to secure a new apartment, one of the specifications was to find an apartment with increased security. However, I find that at all times she was acting under the direction of Mr Moussa, who was also acting under the direction of an unknown other or others. I make this finding because Ms Elayouby gave clear evidence that, on the occasions that she was given directions by Mr Moussa, he indicated to her that he was relaying the directions he had obtained from someone else. 35. On 24 October 2017, Ms Elayouby applied for new registration plates for the Toyata HiAce which was registered in her name. Again, she was operating under direction. The vehicle was issued with new registration plates. 36. During the afternoon of 24 October, Moussa and Betka attended the Cairds Avenue unit and, shortly after, left the unit and changed the registration plates of the van which was parked outside. I accept that this was an attempt on their part to confuse surveillance and reduce the chances of detection. 37. Although Ms Elayouby obtained the new registration plates for the vehicle, she had no part in changing the registration plates. It is alleged by the Crown that the third male who took part in this activity was Mr Ali. This is the third and final issue in dispute. The Crown relies upon a number photographs to establish beyond reasonable doubt that one of the males who took part in this activity was in fact Mr Ali. Having looked at those photographs carefully, I am unable to find that it is Mr Ali. The photographs depict a male in dark clothing with a beard and cap. The photographs are not of sufficient quality to make that identification. In fact, it appears to me that the man in these photographs is slightly heavier than Mr Ali as depicted in the CCTV footage from the barbershop. Be that as it may, I cannot be satisfied to the requisite standard that the man depicted in the photograph is Mr Ali and therefore find in his favour in relation to this dispute. 38. Two days later, on 25 October 2017, police executed an overt search warrant at Cairds Avenue and seized a number of items. Forensic analysis detected the fingerprints of Ali, Moussa, Elayouby and Betka on deposit receipts, which is consistent with the fact that they were directly responsible for a number of deposits. 39. An A4 notebook containing handwritten alphanumeric codes, similar in nature to codes located on the Post-It notes and deposit slips, was forensically tested. Mr Moussa's fingerprints were found on this notebook. 40. Mr Ali's and Mr Moussa's fingerprints were found on handwritten documents which contained alphanumeric codes of a similar nature to the codes located on the deposit slips and the Post-It notes. Cigarette butts located in the lounge room contained the DNA of Mr Ali, Mr Moussa and Mr Betka. 41. On 25 October 2017, police executed a search warrant on the barbershop and seized cash deposit receipts and CCTV hard drives. 42. On 25 October 2017, police executed a search warrant on Mr Ali's premises. They located three plastic bags containing a quantity of $234,790 cash found in a safe in the bedroom that he shared with his wife. DNA consistent with that of Mr Ali and Mr Moussa was found on the rubber bands wrapped around the bundles of cash. The safe also contained luxury watches and handbags belonging to Mr Ali's wife. 43. The Crown submits that the large quantity of cash found in the safe is evidence from which I could infer that the financial benefit obtained by Mr Ali as a result of this criminal activity was significant and that he was motivated by greed rather than need. Having regard to the way in which this amount of cash was found, namely bundles of cash consistent with the way in which the deposits were prepared, I cannot find that this was the profit made by Mr Ali. 44. However, the fact that he kept bundles of cash in a safe in his bedroom, money that was to be the subject of further deposits, is relevant to assessing his role in the criminal operation. 45. Police also executed a search warrant at Mr Moussa's address. They located $3016 cash inside a bag on the coffee table and multiple BlackBerry devices. A white Toyota hatchback parked outside his home was searched. Police located a further BlackBerry device and a bank deposit slip for $5000, together with pink Post-It notes bearing handwritten information. 46. The Toyota HiAce was also searched and contained, among other things, $13,900 in cash. This vehicle was clearly being used to transport cash that was to be deposited in connection with the money laundering operation. Objective Seriousness 1. The maximum penalty, here 25 years imprisonment, serves as an indication of the seriousness with which Parliament views this offence. I must sentence each offender in accordance with Part 1B of the Crimes Act 1914 (Cth). In addition to any other relevant factors I must specifically take into account the matters listed in s 16A(2) as far as they are relevant and known to the court. It is also incumbent upon me to impose sentences that are appropriate in all the circumstances of the offence. Proportionality is a fundamental sentencing principle. 2. Although this is not an offence that is subject to the standard non-parole period regime, the assessment of the seriousness is a critical component of the sentencing process. 3. In relation to money laundering offences, a starting point is to consider where the offence sits in the scheme of offences provided for by s 400 of the Criminal Code (Cth). Here, each offender has pleaded guilty to dealing with money that he or she intended would become an instrument of crime, in that he or she intended to conduct transactions so as to avoid reporting requirements on threshold amounts. The state of mind in each case is one of knowledge rather than recklessness. 4. Having regard to the sustained involvement of each offender, the receipt and depositing of cash, the frequency of the deposits and the quantity of money, I am satisfied that each offender must have suspected that the money was derived from some illegal activity. However, I cannot find beyond reasonable doubt that they knew the money was derived from illegal activity such as drugs or firearms. Furthermore, I cannot be satisfied to the requisite standard that the money was derived from such illegal activity. Nor am I able to determine where the money was headed or for what purpose. 5. The amount of money involved in the joint criminal enterprise was very substantial, totalling over $17 million in 2932 structured deposits. Generally speaking, a large number of transactions involving small amounts of money will be more serious than a single transaction of a larger quantity which may be seen as an isolated offence. 6. I take into account that the amount of money involved is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence. Although not the only or determinative factor, it remains relevant and important: R v Huang; R v Siu (2007) 174 A Crim R 370. 7. Each offender engaged in direct deposits ranging from 59 to 325 deposits. Having regard to those objective facts, the offence to which each offender has pleaded guilty is very serious. They engaged in a course of conduct that amounted to ongoing money laundering business. It could not be said that their offending was an isolated incident. 8. Each offender participated in organised criminal activity endeavouring to avoid reporting requirements that applied for transacting on amounts of over $10,000. Clearly, there was a system in place, although I am not persuaded that any of these offenders were responsible for devising the system as opposed to simply implementing it. 9. The system itself was not particularly sophisticated. Although there was planning and organisation, it did not rise above that inherent in offences of this type. The methodology used was rudimentary when compared to other systems such as a "token" system. The methods utilised to avoid detection were somewhat simplistic and amateurish. For instance, the use of the barbershop, premises owned by Mr Ali and clearly associated with him, is indicative of the unsophisticated nature of the conduct engaged in by these offenders. 10. The use of a counting machine, rubber bands and Post-It notes does not add to the sophistication of the method employed to divide money into bundles so that they could be deposited. The methodology utilised cannot be described as sophisticated as opposed to being what was required to effect the task of counting, dividing and preparing the cash into bundles. 11. There is no suggestion that any of the offenders disguised themselves so as to avoid detection when depositing the amounts of cash at the various banks. 12. Although "cash houses" or "safe houses" were used, the security utilised was basic. There was some emphasis on a locked screen door and a locked timber door at the entrance of the units. However, those security measures are hardly sophisticated and no more than security measures utilised in most homes. There were, for instance, no CCTV cameras employed to surveil the premises that were occupied. 13. I agree with the description used by the Crown during submissions that this was an "organic situation". It seems to me that the participants put in place a new plan in a reactive manner to limit the fallout, for instance, from the covert search. 14. I am satisfied that the overall objective gravity falls at about the middle of the range of seriousness for offences of this type. 15. I must also take into account the precise circumstances of what each offender did, including the actions which constituted the dealing for the purposes of the offence, the period of time over which the offences committed, the number of transactions and the amount involved, and the role of each offender including whether the offender was the author or instigator of the arrangement and the degree of authority reposed in the offender in carrying it out. 16. I accept that each offender was a trusted member of this money laundering operation having regard to the fact that they were dealing with large amounts of cash by counting and dividing it, and/or depositing it. However, by depositing the money and being exposed to detection, I am satisfied that they occupied a lower role in the overall enterprise. This is particularly so in the case of Ms Elayouby, who was directed to register the van and to enter into two leases for premises used in the illegal activity and did so in her own name. Although she was personally responsible for the largest number of deposits, totalling the largest amount of cash, I am satisfied that her role is the least serious of the six offenders charged with offences arising from this illegal activity and that her role falls at the lower end of the range of seriousness. 17. She followed directions in a manner that exposed her to the real risk of detection and prosecution. She was entirely dispensable. As indicated above I am not persuaded that she had the requisite state of mind, namely knowledge, from 18 April 2017. While she may have been suspicious or reckless from that date as to the nature of the work she was involved in, I am satisfied that it was not until August 2017 that she formed the requisite knowledge. 18. She had no authority, decision-making or managerial role and was at all times following the directions of others. In fact, her subservient role is reflected in the fact that she was expected to clean the premises used in connection with the offending. 19. I am satisfied that she engaged in this conduct for financial reward. She obtained two one-off payments, each of $1000, and received $50 for each $10,000 deposit. The Crown submits that I could not find that she engaged in this activity purely for need having regard to the material in her own statement that she spent her earnings on, amongst other things, her family, by way of gifts, cash and to buy a car. 20. Having regard to the evidence in her subjective case, which I will set out more fully below, this offender came to participate in this illegal activity at a time when she was struggling financially. Her endeavours to engage in legitimate work to support herself and her son is evidenced in the material before me. Immediately before she commenced participating in the illegal activity, she ceased her legitimate employment in circumstances that were entirely out of her control and in which she was a victim. 21. She was living in conditions that were very basic and used the money that she obtained to provide for herself and her son, to pay off her debts and to save for a car because the one she was driving was falling apart. True it is that she also spent money by giving it to people that she knew were in need, including charities and members of her family. However, I am not persuaded that such conduct speaks of greed. In my view, it points in the opposite direction. 22. Although her motivation was to obtain a financial benefit, the extent to which this operates as an aggravating factor is significantly moderated having regard to her financial circumstances at the relevant time. 23. I turn now to consider the roles of the other two offenders. Mr Ali and Mr Moussa engaged in fewer direct deposits involving less cash. They were both observed at Mr Ali's barbershop handling bank deposit slips, writing on bank deposit slips and photographing them. I am satisfied that the barbershop was used to reconcile deposit slips and as a drop-off and pickup point for some of the cash. 24. I am not satisfied that the business was used as a front. Indeed, as indicated above, insofar as it was used at all in connection with the illegal activity, it demonstrates an absence of sophistication on the part of Mr Ali. 25. Both offenders were trusted participants in the money laundering operation. Mr Ali not only deposited money but had a large amount of money stored in his safe at his home. I am not satisfied that Mr Ali was involved in changing the registration plates of the Toyota HiAce van. I am however satisfied that both men attended the Cairds Avenue premises, not only to pick up cash to deposit, but in connection with the preparation of the cash and/or reconciliation of the deposit slips at those premises. I make this finding on the basis of the forensic evidence including DNA and fingerprints obtained following the execution of the overt search warrant at Cairds Avenue. 26. Although the tasks engaged in by these offenders demonstrate a greater level of autonomy than Ms Elayouby, I am not persuaded that they were the "organisers of the criminal syndicate who occupied senior roles in its administration". Although there was a system in the place that involved planning and organisation, the Crown has not established that these offenders were the architects of that system. I am not satisfied that Mr Ali had a decision-making role or authority to recruit, discipline or determine what others were to do. 27. I find that Mr Moussa's role was slightly more serious than that of Mr Ali for the following reasons: 1. He gave directions to Ms Elayouby on a number of occasions although I am satisfied that on those occasions he was directed by an unknown other or others; and 2. He was involved in changing the number plates on the Toyota HiAce. Unlike Mr Ali, the evidence establishes that Mr Moussa had some authority to deal with unforeseen circumstances, albeit generally under the direction of another or others. 1. Mr Ali and Mr Moussa were also motivated by financial reward. I accept that Mr Ali was struggling financially, as borne out by the tax records relating to the income from the barbershop (approximately $20,000 a year). Mr Moussa reported to Dr Furst that he was motivated by a desire to earn extra money because he had only recently been married and also wanted to help his parents with rent. 2. Although I am not satisfied to the requisite standard that either man profited to such a degree that they enriched themselves, they were not in the type of financial hardship suffered by Ms Elayouby. I have taken into account the fact that they were motivated by financial reward as a factor adverse to them. 3. I reject the Crown's submission that the objective seriousness of their offending was "very high" because I am not persuaded that they were the organisers of the criminal syndicate nor that they occupied a senior role in its administration. I find that their offending is at the middle level within this offence category, although, for the reasons set out above, I am satisfied that Mr Ali's role is less serious than that of Mr Moussa. 4. Although I cannot make a finding in respect of the predicate offending, I accept that general deterrence, denunciation and punishment are relevant and important sentencing considerations. I have taken into account these considerations in determining the appropriate penalty. Money laundering can be difficult to detect, investigate and prosecute, and it is incumbent upon the courts to impose sentences that deter others from engaging in this type of serious criminal activity. 5. I have had regard to specific deterrence in light of the fact that each offender willingly engaged in sustained criminal activity. However, the weight to be given to this consideration is moderated having regard to each offender's prior good character and the fact that they have complied with their bail and not reoffended. Although Mr Moussa has a conviction for deemed supply on his criminal record, that offence arose as a result of police locating prohibited drugs whilst executing the overt search warrant on 25 October 2017. At the time that he committed the present offence, he had no prior criminal history. Subjective Circumstances Fouad Moussa 1. The offender is 28 years of age. He has been married for four years, and he, along with his wife and their 3-month-old son, currently live in Condell Park with his parents. 2. He worked in the air conditioning industry for four years, in NBN installation for one year, and in a car-yard for about one year. He has been working with his brother, who is an electrician, over the last 6 months. 3. The offender was born in Sydney, the eldest of four children. His parents were both born in Lebanon, his mother migrating to Australia when she was 3 years of age and his father migrating to Australia when he was 18 years of age. His mother worked as a hairdresser and school teacher. His father owned and ran a bakery for a number of years. His father then ran a jewellery accessory shop. His father now works as a driving instructor. 4. He grew up in Yagoona, attending Georges Hall Public School. He was of above average academic ability in his primary school years. He subsequently attended Birrong Boys High School to Year 11, achieving at average levels throughout his high school years. He had friends at school and had an interest in sport, especially Rugby League, which he played between the ages of 15 and 18 years. Mr Moussa was under pressure from his parents to succeed academically, his parents being disappointed when he left school at the age of 16 years, apparently "hanging out with the wrong people" at the time. He entered the workforce as a 16-year-old. 5. In a report dated 25 February 2020, Dr Richard Furst, Forensic Psychiatrist, notes that the offender has a history of anxiety, depression and symptoms indicative of obsessive-compulsive disorder (OCD), with his mental health issues dating back to the age of 21. Mr Moussa described isolating himself at home from the age of around 23 years. He became anxious on occasion and would avoid going out. He was too embarrassed to talk to anyone about his problems in his early 20s. 6. The symptoms of his OCD included excessive hand-washing and showering. This excessive behaviour in his early 20s lasted for about three months. 7. The offender sought help from his GP in 2015, at age 23. He was referred to Mr Mostafa El-Gashingi, Clinical Psychologist, at Psych Central in Bankstown. He was seeing Mr El-Gashingi on a weekly basis during his initial months of therapy, working under a Cognitive Behaviour Therapy (CBT) framework in relation to his anxiety, depression and OCD symptoms. He was also assessed by Dr Ghana Chapagain, a psychiatrist at the Hills Clinic, in 2015. He was prescribed the antidepressant medication Luvox (Fluvoxamine). He is still taking Luvox at a dose of 100 mg orally at night. 8. The offender felt better in his mood and had fewer symptoms of anxiety and OCD with the combined psychological and medication treatment. However, his anxiety symptoms increased significantly after he was charged in October 2017. 9. The offender has no recent history of drug abuse. He reported smoking cannabis on and off between the ages of 16 years and approximately 19 years, and going through what he described as a 'partying stage' between the ages of 18 and 19 – generally binge-drinking and using cocaine on weekends with his friends. He was never dependent on alcohol or cocaine and stopped using the drug after approximately two years. 10. Certificates were tendered on behalf of the offender showing that he completed the Odyssey House Alcohol and Other Drugs Recovery Group – Stage 1 program on 27 July 2018, and the Mental Health Recovery Group – Stage 1 program on 20 August 2018. 11. The Crown submits that there appears to be an inconsistency in the subjective material having regard to the fact that he reported having been abstinent from about the age of 20 or 21. There does appear to be an inconsistency in the material. However, having regard to the certificates from Odyssey House, I am satisfied on the balance of probabilities that the offender has sought to obtain assistance in respect of ongoing drug issues. 12. The offender told Dr Furst that he now regrets his actions, stating, "I wish I never done it … If only I knew what I was getting myself into … I wish I could turn back time … if I knew how it was so illegal, I wouldn't have done it." The contrition he has expressed to third parties, together with his plea of guilty, demonstrates remorse on his part. 13. Dr Furst administered a number of psychometric tests at the time of assessment. The offender's total score on the Beck Depression Inventory (BDI-II) falls in the severe range for current depressive symptoms. His score on the Beck Anxiety Inventory (BAI) falls in the severe range for current anxiety symptoms. 14. Dr Furst concludes that the offender currently meets the DSM-5 criteria for the diagnosis of Obsessive Compulsive Disorder, which dates back to his early 20s. He presents with a history of severe and recurrent anxiety and depressive symptoms typical of Obsessive Compulsive Disorder as his primary mental disorder. He also has features of recurrent low mood, impaired social function, high levels of generalised worry and a tendency to isolate himself from others, including his wife and family, when stressed, depressed and/or anxious. Dr Furst opines that it is likely that his anxiety has been maintained and exacerbated over the last two years by the stress of the police search carried out at his home on 25 October 2017 and ongoing court proceedings. 15. Despite the offender having actively engaged in psychological and psychiatric treatment for his mental disorder since 2015, Dr Furst also considers that it is more likely than not that he was still experiencing significant levels of anxiety, depression and Obsessive Compulsive Disorder at the time of the offending in October 2017. Dr Furst states at page 7 of his report: Although his depression, anxiety and OCD did not cause him to offend in the manner outlined in the agreed facts, it is likely that the psychosocial impairment associated with his depression, anxiety and OCD contributed to his life circumstances at the time, including decreased work capacity/achievements and financial constraints, when he agreed to participate in the offending in question. Therefore, I am of the opinion that his mental disorder was an indirect contributor to the poor decision he made when offending … 1. I am not satisfied that there is a direct nexus between his mental health issues and the offending conduct such as to reduce his moral culpability. He may have lacked judgement and made a poor decision, but I am satisfied he was motivated by financial reward. It was a calculated risk on his part. I do however take into account his mental health issues in assessing the weight to be given to his subjective case and insofar as it is relevant to the conditions under which he will serve his term of imprisonment. 2. Dr Furst recommends that, in the event the offender receives a custodial sentence, he is referred to a psychiatrist and a mental health nurse working for Justice Health in order to treat his OCD and associated symptoms of depression and anxiety. He will require psychological input in relation to the core symptoms of his OCD, depression, and anxiety. Treatment, such as CBT and/or mindfulness techniques, is available through a psychologist working for Corrective Services NSW. Dr Furst states that ongoing opportunities for work and/or study in custody would also be of benefit to the offender. 3. Dr Furst recommends a treatment plan for the offender when released on parole which includes ongoing medical and psychological treatment. 4. Mr Moussa is assessed as a low-medium risk of reoffending and as having good prospects of rehabilitation. In making this assessment, Dr Furst takes into account factors which include: the offender's stable marriage, young child, support of his immediate family, history of working reasonably consistently since leaving school at the age of 16, and accepting and engaging in treatment through his GP and psychologist, as well as the absence of any major mental illness such as schizophrenia. 5. In evaluating the effects a custodial sentence would have on the offender, Dr Furst considers that the offender's mental health problems in the form of OCD and severe levels of depression and anxiety mean that the custodial environment is likely to be more onerous on him than the theoretical "average" inmate (including but not limited to the likelihood of exposure to violent incidents, increased anxiety and a destabilisation of his mental condition). Dr Furst states the offender would also have less access to appropriate psychological and psychiatric services in custody than would be available to him in the community. 6. Further, he is supporting his wife and a young child, and I accept that he is deeply concerned about their welfare once he is incarcerated. This is a matter which is likely to add to his hardship in custody. 7. Character references tendered on behalf of the offender describe him as respectful and hard-working, engaged in community and charity work, and attest to his expressions of remorse to family members and community members. 8. I am satisfied that Mr Moussa has good prospects of rehabilitation. He is committed to his young family and I am satisfied that he is unlikely to engage in criminal activity which would risk further removal from his family in the future. 9. Having regard to the objective gravity of the offence and his role in it, together with the various considerations and principles relating to the purposes of sentencing which I must apply, I am satisfied in his case that no penalty other than full-time imprisonment is appropriate. 10. The material contained in the confidential affidavit relates to assistance to authorities. I do not find it necessary to go into the detail of the assistance. The Crown here concedes that the number of items surrendered was greater than the number of items located as a result of the assistance provided by the co-offenders Betka and Hawchar. 11. The contents of the affidavit satisfy me that the items were surrendered of the offender's own accord; that if it were not for the assistance, the police may not have received the items; and the assistance was reliable. 12. I accept that this type of cooperation should be recognised in determining the sentence as it facilitates and promotes cooperation by others. Although no person was arrested, charged or prosecuted, the surrender of such items from wherever sourced has removed them from the community. Although not required to do so, for the purposes of transparency, I determine that the assistance warrants a discrete reduction of 10%. Ahmad Ali 1. The offender is 28 years old. He has been married for 5 years and lives with his wife and their two young sons, aged 3 years and 1 year. 2. He has worked as a barber for over 10 years, including running his own business. Following his arrest for this offence and the subsequent publicity, he lost his business. For the past two years he has worked as a glazer, specialising in the installation of shower screens and splash-backs. He still works as a barber in a casual capacity. He has a supportive employer in the glazing business and enjoys the work. He attends the local mosque and is a practising Muslim. 3. The offender was born in Australia, the seventh of nine children, to parents who were both born in Lebanon and migrated to Australia prior to his birth. He remains close to his parents and siblings. His father ran a mechanic's workshop in Greenacre and then a tow truck business. His mother stayed at home. Both parents are now retired. 4. He grew up in Bankstown and attended Bankstown Public School, where he struggled in relation to his English skills. He also struggled socially, finding it difficult to fit in. He attended English as a Second Language (ESL) classes, even though he was born in Australia. He also had weekly or fortnightly sessions with the school counsellor between Year 4 and Year 6. He subsequently attended Birrong Boys High School to Year 10, being an average student throughout his high school years. 5. He has a history of anxiety consistent with acute panic attacks dating back to 2 years ago. He describes apparent "tunnel vision" and "seeing black", struggling to breathe and excessive sweating, with these episodes of anxiety being intense particularly on the first few occasions. He saw his GP when the episodes first started who recommended he start taking medication, however the offender was reluctant to take any medication and did not do so. 6. His symptoms of anxiety have persisted over the past several months, with the offender often experiencing nocturnal episodes of apparent panic attacks. He describes the onset of these episodes being about 3 or 4 weeks after the police "raid" on 25 October 2017. He has not engaged with any counselling since primary school and has not received any treatment with psychotropic medication in recent years or earlier in his adult life. 7. At the time of the offending, the offender had been married for about 2 years and was expecting his first child. His business was not going well and he described having reached a "hard point" in his life. He stated that he and his wife were struggling to make ends meet despite his wife working at Woolworths in an effort to bring in more money. 8. It was around that time he was approached by someone to make the bank deposits in question (in his case, 108 deposits totalling $664,930 made between 20 September 2017 and 18 October 2018). 9. The report of Mr John Machlin, Clinical Psychologist, dated 27 February 2020, elaborates on the offender's experiences of "cumulative stressors over a long period" prior to the offending. These include difficulties obtaining timely payments from his employer, causing financial strain and eventually leading him to take out a loan to purchase his own business. His wife's first pregnancy during this time increased their sense of financial urgency, and she picked up extra shifts at Woolworths. 10. His wife suffered a miscarriage at 3 or 4 months which he described as devastating for both of them, and the offender felt personally responsible under the notion that the miscarriage may have been caused by stress. They were elated when his wife fell pregnant again, however the offender was having difficulty paying his debts – to the extent that, at times, he could hardly afford to put petrol in his car. He recalled a sense of fear and shame that he would not be able to provide for his family. 11. The tax records confirm that the income from the barbershop was relatively modest, an average of $20,000 for the past three years. A number of luxury items belonging to his wife were found in the safe. However, I am unable to determine whether these items were purchased by the offender from the proceeds of this crime or whether they were obtained in some other way. 12. The offender told Mr Machlin that he understands his actions in committing the offence were wrong and that he was supporting a criminal activity. As well, he said that his actions have only caused heartache for himself and his family, and that he would never make the same mistake again. The offender's siblings have since told him they would have helped him out financially if he had asked. He said he did not approach them for financial assistance because he was ashamed. He now realises that he is fortunate to have the level of family support that he has. 13. The offender also told Dr Furst that he now regrets his actions. He describes feeling like he has "let everyone down", and having feelings of both guilt and shame. 14. Dr Furst administered the Beck Depression Inventory (BDI-II) test. His total score falls in the severe range for current depressive symptoms. The offender also completed the Beck Anxiety Inventory (BAI) test. His total score falls in the severe range for current anxiety symptoms. 15. Dr Furst opines that the offender meets the criteria for Panic Disorder according to the DSM-5. He presents with a history of severe and recurrent anxiety symptoms typical of panic attacks, including nocturnal panic attacks, that started around late November 2017 and have persisted over the past 2 years. 16. Dr Furst concludes that the offender's anxiety symptoms/panic disorder were precipitated by his arrest on 25 October 2017 and were not present at the time of the offending. 17. Dr Furst recommends that, in the event the offender receives a custodial sentence, he is referred to a psychiatrist and a mental health nurse working for Justice Health in order to treat his panic disorder and associated symptoms of depression and anxiety, possibly with the prescription of an antidepressant medication. He will require psychological input in relation to his core symptoms of panic, depression and anxiety. Treatment, such as CBT and/or mindfulness techniques, is available through a psychologist working for Corrective Services NSW. 18. Ongoing opportunities for work and/or study in custody would also be of benefit for the offender, as recommended by Dr Furst. 19. Given the offender's now significant mental health problems in the form of panic disorder and severe levels of both depression and anxiety, Dr Furst considers that the custodial environment is likely to be more onerous for him than the theoretical "average" inmate. He would also have less access to appropriate psychological/psychiatric services in custody than would be available to him in the community. Furthermore, Dr Furst notes that the offender has a wife and two young children about whom he is concerned 20. The offender revealed to Mr Machlin, during his psychological assessment, that his infant son suffers from febrile seizures, something he finds difficult to talk about. He said they have called an ambulance three times and his son has been taken to hospital twice. One of his son's hospital admissions was confirmed by a hospital discharge record produced by the offender. Although his son is expected to grow out of the condition with no ill effects, he still requires supervision, particularly if he is feverish. The family all currently sleep in the same room. Mr Machlin's report notes that the health of the child and the need for both parents to watch over him is a prominent concern of the offender with respect to the prospect of serving a term of imprisonment. 21. Mr Machlin assessed the offender as currently extremely high in anxiety on clinical syndrome measures, and there are significant signs of depression which might be pronounced enough to interfere with normal functioning. On the Depression Anxiety Stress Scale, the offender's scores were in the moderate clinical range for Depression and Stress, and extremely severe for Anxiety. 22. I take into account that the offender's time in custody will be more onerous because of his mental health issues and his concern for his son's health. 23. Dr Furst considers that the offender has good prospects of being successfully rehabilitated, in view of his absence of criminal antecedents, along with his stable marriage, two young children, family support, qualifications as a barber and current employment as a glazer. 24. Personality tests yielded elevated scores on the Compulsive and Dependent scales. He is likely to be conscientious, controlled, meticulous, and to place high expectations on himself and others. At the same time, he shares characteristics with people who tend to feel incapable of functioning independently and create bonds with people they perceive as being able to lead and care for them. They feel inadequate and insecure, and can be preoccupied with the possibility of losing relationships, interacting submissively and covering up unpleasant emotions for fear of alienating others. 25. Mr Machlin concludes that, at the time of his involvement in the offence, he was acutely concerned about being seen as a disappointment and a failure, unable to provide for his family, and at risk of losing his closest relationships. He was ashamed to ask for help. He opines that, at the time the offender commenced his illegal activities, the offender was vulnerable in view of the combination of life stressors and insecure personality factors. 26. Mr Machlin considers that the offender has demonstrated a good level of adjustment over the 2¼ years since his arrest. His conclusions accord with those of Dr Furst in that he considers the offender's ongoing rehabilitative prospects are further assisted by his otherwise clean record, his stable family and broader family support, the absence of problems with mental illness or addiction, and a genuine motivation to lead a respectable work and family life. Mr Machlin considers that his chances of recidivism are low. 27. A number of character references tendered on behalf of the offender describe him as hard-working, family-oriented and caring, and as a supportive and loving husband and father to his children. He has expressed remorse and shame, and acknowledged his wrongdoing to family members. 28. The offender has no prior criminal history and has complied with his bail. I am satisfied that he is remorseful. He is assessed as a low risk of reoffending. I am satisfied that he is genuinely concerned about the impact on his family and will do whatever is necessary not to be separated from them again. I find that he has good prospects of rehabilitation and is unlikely to reoffend. Elamira Elayouby 1. The offender was born in Brisbane, the seventh of nine children. Both parents came from Lebanon and her mother was only 13 at the time of her wedding. Her father left the family when the offender was 3 years old and she had no contact with him again until the age of 14. They were never close. Her mother remained single and worked long hours as a taxi driver to provide for the family. Between the ages of 6 and 10, Ms Elayouby was a victim of abuse, as set out in her un-challenged account. 2. By the time the offender was 10, most of her older siblings had moved out of home and she was expected to do much of the cooking, cleaning, and "whatever else was required to keep the household running". 3. She had a somewhat distant relationship with most family members. At 19, she became closer to her mother and a sister when they cared for her through her illness with Hodgkins Lymphoma. Upon her recovery, she moved to Sydney and maintained only occasional contact with the remainder of her family in Brisbane. 4. Her father now lives in Sydney. Their relationship is strained and there is a language barrier because she does not speak Arabic and struggles to understand his English. One sister also lives in Sydney but they do not speak. 5. Following treatment for cancer at 19, the offender was told she would be unable to have children. She states that this meant she was instantly viewed as "damaged goods" due to the importance of children to marriage within her culture, and she was "married off" to a man who already had children. The offender later did unexpectedly fall pregnant and had a son who is now 6. 6. She was subjected to physical and mental abuse throughout this 2½ year marriage. She describes barely speaking during this period out of fear. I am satisfied that the offender was a victim of domestic violence both of a physical and psychological nature. 7. During the marriage, the offender negotiated with her husband to allow her to work part-time cleaning houses. She was earning $15/hour but told her husband she was only earning $10/hr because he would take the money. She would hide the additional $5 in the home and saved the money secretly. During this time, she found a studio under the National Rental Affordability Scheme program and applied for a government bond loan. While continuing to save money secretly, she arranged for the studio to be sub-leased. 8. In 2015, the offender, having saved all that she could, resolved to leave the marriage. Fearing for the well-being of her husband's children from his previous relationship if she was not there to care for them, she approached the children's mother, who eventually agreed to take them back into her full-time care. The offender then waited until her husband was at work and left with her son to her mother's house in Queensland. Her husband was irate and threatened to fly to Queensland to stop her from leaving him. Over a period of several weeks, she negotiated with him until he eventually agreed to a divorce. Her ex-husband now lives in Wollongong. He appears to have little contact and no particular interest in their son. 9. In March 2017, following the deterioration of her relationship with her mother, the offender returned to Sydney with her son and moved into the studio apartment. She subsisted on a low income as a single mother. 10. In 2018, she formed a relationship and married by Islamic ceremony. The relationship ended after 13 months in September 2019 when her partner left her. She is currently single, living alone with her son in rented accommodation. 11. She started working at KFC at age 14 to help with household expenses. At the age of 15, she obtained a second job to supplement that income, and maintained both jobs throughout high school. She worked in call centres from age 16, starting at the taxi service where her mother worked, later moving into telemarketing for the Cerebral Palsy League. At 18, she took a supervisory position at KFC and began training for higher management until her illness at age 19. 12. She enrolled in a degree in Business Management and Psychology at Griffith University after high school, obtaining high distinctions in her first semester despite maintaining both part-time jobs and being expected to attend to all household chores. She had little sleep and was in a constant state of exhaustion during this time. 13. In 2013, her illness curtailed both her employment and university studies and she had to discontinue her degree. 14. Since living in Sydney, she has had to be largely self-sufficient as a twice-divorced single mother. Her work has included tutoring, babysitting, cleaning and working in construction as a driver and labourer's assistant. Generally speaking she has tried to find employment that accommodated her son's presence in light of the fact that she could hardly afford childcare facilities. She is now employed in administration and call centre work for Trades Academy Australia. She appears to be excelling in this employment and there may be future opportunities in management. She can now afford a degree of childcare and her employers are very supportive of her to the point of allowing her to care for her son at work on the occasions that he is unwell. 15. The offender's diagnosis with Hodgkins Lymphoma at age 19 is confirmed in her medical records. She had a particularly severe form of the condition and believed she would not survive it. At the time she was diagnosed, the doctor gave her an estimate of 6 weeks to live unless urgent surgery was performed. She underwent a series of gruelling treatments including removal of large tumours in the neck and on the spine, and chemotherapy resulting in pain, numbness, incontinence, lung problems and other side effects. Due to the location of the tumour on her spine, the offender became almost paralysed, with nearly non-existent mobility around the house. She required assistance washing and using the toilet. Her mother and sister nursed her through her recovery. 16. She is now clear of the disease and undergoes regular check-ups, although experiences lasting damage to her lungs from the chemotherapy which make it difficult for her to retain deep breaths to this day. 17. Her second eldest brother died at age 37 in 2014 from a similar cancer. The death of her brother has had a significant impact upon the family and, in particular, upon the offender's mother. 18. As well as the domestic violence experienced during her 2½ year marriage, she was sexually assaulted on a worksite in February 2017, and the incident prompted her to leave her job and return to Queensland with her son. She intended to remain there, but when the conflict with her mother became intolerable, she returned to Sydney. It was while she was in Queensland following this incident that she was told by an acquaintance of the possibility of work, and ultimately put in contact with Mr Moussa. 19. Having returned to Sydney, once again a single mother, relatively isolated and with little income, she took the opportunity to take up what she thought initially would be "cash work". This background does not excuse her continued participation in the criminal activity, but it provides the necessary context which is relevant to an assessment of her moral culpability. 20. The offender has experienced a series of life traumas, with significant struggles in the intervening periods due to family and relationship problems, financial strain, and the trials of single parenthood. At the time of the writing of Mr Machlin's report, she had opted to seek help after long rejecting any form of counselling support. She has attended counselling sessions with a practitioner named Marian Coffey in Alfords Point, with treatment intended to continue. 21. Mr Machlin considers that the offender has a childhood background of family dysfunction and trauma. Having regard to that history of disadvantage and deprivation I am satisfied that the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 are enlivened: [43] … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision … 1. The offender is genuinely and deeply remorseful. She has no prior criminal history and is assessed as a low risk of reoffending. She realises the seriousness of her actions and acknowledges responsibility for her criminal conduct. She has also commenced treatment and expressed a willingness to continue with counselling. 2. Mr Machlin considers that the offender's personality style is of a person who is submissive, who allows herself to be led and has difficulty asserting herself, and that the subject offence appears to be another occasion where she was taken advantage of at a particular time of vulnerability. He also considers that the offence arose out of financial need, providing context for how the situation developed over time in the context of her needing to flee an abusive marriage, isolation from family, disrupted employment, and the demands she faced as a single mother struggling to make ends meet. 3. Mr Machlin considers that her prospects of rehabilitation are good and rates her risk of recidivism as low. She has no criminal history and is not of an antisocial disposition. She is self-sufficient, intelligent, resilient, and shows initiative in obtaining employment in a variety of fields. She has no history of substance abuse and is motivated to stay out of trouble for the sake of her son. 4. Dr Nielssen notes that, despite Mr Machlin's diagnosis of a depressive illness in the aftermath of returning to Sydney, the offender denied experiencing symptoms of depression prior to the offending and did not present with features of depression or other disorder at the time she was examined by Dr Nielssen. 5. However, he opines that incarceration and separation from her son, on top of her many other risk factors, might trigger a clinically significant depressive illness and, further, that separation from his mother at an important stage in his development would also be expected to have an adverse effect on her son's psychological well-being. 6. A report prepared by Dr Marian Coffey confirms that she has been treating the offender who is currently being counselled on a weekly basis. 7. Dr Coffey notes that the offender disclosed major difficulties with trust of all others apart from her son, and difficulties negotiating her own safety and security in day-to-day relationships. Her perception and experiences of others as unreliable, unsafe and uncaring had led to a strong conviction that she is only able to rely on herself – a coping strategy which had prevented her from seeking advice or support when in difficult situations. 8. Dr Coffey does not consider that the offender has a serious psychotic disorder, mood disorder or personality disorder, but states that her difficulties are best understood in terms of an Avoidant/Dismissive Attachment Disorder which has developed as a result of her early attachment experiences within her family and been reinforced by subsequent abusive or unsupportive relationships. 9. This disorder is characterised by a poor sense of self, low expectations, habitual mistrust, a dismissive defensiveness pattern of relating to others, an unelaborative and unrevealing narrative style, and the use of immature defences such as repression or dissociation in dealing with difficult feelings and life experiences. 10. Dr Coffey explains that people so affected behave like a "little adult" in childhood as a coping strategy, and in adulthood, while they can be viewed as quite functional in an intellectual or practical sense, can be highly anxious and disconnected on the inside and not always able to make socially appropriate, mature decisions. 11. Dr Coffey opines that the prognosis for change and recovery is good with regular, consistent and ongoing therapy. The offender's continued treatment is important for both the offender and her son to prevent the transgenerational transmission of the consequences of disordered attachment. 12. Numerous character references tendered on behalf of the offender attest to her being trustworthy and hardworking. She is repeatedly described as gentle, kind and polite, a devoted mother to her son, and a person willing to go above and beyond to help others. 13. I am satisfied that she has excellent prospects of rehabilitation and is unlikely to reoffend. Evidence of Ms Elayouby 1. The offender gave evidence confirming the subjective background contained in the documentary material. As indicated above, she impressed me as an honest witness who was genuinely remorseful. She has made enquiries with family and friends in relation to a suitable placement for her son in the event that she is incarcerated. Those efforts have been unsuccessful. 2. The fact that no suitable placement is available with family members is confirmed in the evidence of her mother. Although the offender's mother is willing to take care of her grandchild, she cannot physically do so due to her medical situation and recent surgery. 3. The Crown submits that this is not a case of hardship to a third party that falls into the exceptional category. The Crown relies upon the evidence of the offender's mother that she has two sons living at her home in Queensland and suggests that one or both of them could assist in raising the child. 4. However, the Crown's submission in this respect ignores the evidence. Although the offender's mother did give evidence that she has two children residing with her at home, she said one lives "downstairs" and "doesn't communicate" with anyone in the family since his brother passed away from Hodgkins Lymphoma. The other son is her youngest child. She referred to him as "my baby". He is 23 or 24 years old, and she said she looks after him. It is unlikely in those circumstances that either of those siblings can look after the offender's child. 5. Having regard to the sworn evidence before me from the offender and her mother, and the unchallenged material in the various documents, I am satisfied on the balance of probabilities that no suitable placement has been found for the offender's child among family or friends. 6. The law in respect to the way in which hardship to third parties can be taken into account does not appear to be settled. In the context of a State offence, Button J in Kremisis v R [2016] NSWCCA 257 said that the approach taken by the sentencing judge in that case "was consonant" with the approach taken by the Court of Criminal Appeal over many years – namely, that before hardship to third parties could be taken into account, it must be exceptional. 7. In Carter v R [2018] NSWCCA 138, McCallum J referred to a number of cases dealing with the issue including R v MacLeod [2013] NSWCCA 108 at [43] which leaves open the possibility that the "otherwise appropriate sentence" is one in which hardship to third parties falling short of exceptional circumstances is considered as part of the process of instinctive synthesis, even if it cannot be considered as a distinct matter or justifying any substantial modification of an otherwise appropriate penalty. 8. In R v Zarafa (2013) 235 A Crim R 265, Beech-Jones J said at [140]: This succession of cases has led to the adoption of a principle with little to commend it. If in other contexts Courts are bound to consider the impact of their orders on innocent third parties … why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional? The primary objects in sentencing of "retribution, deterrence [and the] protection of society" described by Wells J in Wirth can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender's family into those which meet the description "exceptional" and those which do not. The assessment of probable hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section and the secondary materials indicate a clear policy choice on the part of the legislature on this topic. 1. In light of the unsettled state of the law, and for abundant clarity, I proceed on the basis that, in order to substantially modify an otherwise appropriate penalty, I would have to be satisfied that the hardship to the offender's son by reason of the offender's incarceration is exceptional. 2. To the extent that the Crown submits that the hardship to the offender's son does not constitute exceptional hardship, I reject the submission. I also reject the submission made by the Crown that to find exceptional hardship in this case would "result in any single mother avoiding a gaol sentence if her family came along to say they could not look after the child". 3. There is no suggestion that the offender and her family put their heads together to give evidence that was untruthful. In fact, to be clear, I am satisfied that the offender and her mother gave honest evidence. What then of the Crown's submission that to find exceptional hardship here would mean that any single mother could avoid a gaol sentence? 4. A close analysis of the evidence given in this particular case at once reveals the unique circumstances giving rise to a particularly close connection between mother and child. The offender, having suffered a life-threatening disease, was told that she could not bear children. She entered into a marriage arranged by her family, that marriage involving physical and psychological abuse. Against the odds, she fell pregnant. 5. Having escaped the abusive relationship, she found employment that provided her with basic subsistence for herself and her child. She was largely estranged from her family. It does not appear that her relationship with her mother and siblings was particularly close during that period. In order to maintain her employment and look after her son, she took him with her to the various jobs which included cleaning and babysitting. They lived together in basic accommodation, sharing a sofa until the child was too big to continue that arrangement. The offender's son has been looked after by his mother at all times during his short life, and the offender has dedicated herself to providing for him and protecting him. 6. The evidence clearly establishes an utterly close bond between mother and child forged in difficult circumstances. I am satisfied that gaoling the offender and separating her from her son will cause significant emotional and psychological hardship to her and exceptional hardship to her son, who may well have to be placed into out-of-home care. Parity 1. Mr Betka was sentenced to 6 years and nine months imprisonment with a non-parole period of 4 years imprisonment following the application of a 25% discount. However, his case can be distinguished from all of the present offenders. He dealt with some $18 million and was directly responsible for 558 separate transactions, and personally deposited over $4 million into various bank accounts within a five-month period between May and October. His overall criminality extended over a 10-month period. His role included distributing funds to others. 2. I am satisfied that his involvement was at a higher level than the present offenders. He was motivated by financial gain so as to fund a drug addiction. His prospects of rehabilitation were assessed as reasonable, as opposed to the prospects of rehabilitation of these offenders, which I assess to be good in the case of Mr Ali and Mr Moussa, and excellent in the case of Ms Elayouby. 3. Mr Hawchar pleaded guilty to an offence that carried a lesser maximum penalty, namely 20 years imprisonment. Allowing for a 30% reduction in sentence, he was sentenced to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 9 months. Notwithstanding the lesser maximum penalty and the relatively small number of transactions and money deposited, he was on parole at the time he committed the offence which is a serious aggravating factor. His previous convictions include extortion with threats of violence. 4. Mr Ghazaoui also pleaded guilty to an offence that carried a lesser maximum penalty of 20 years imprisonment. Allowing for a 20% reduction, he was sentenced to a term of imprisonment of 3 years and 2 months with a non-parole period of 1 year and 11 months. He had no prior criminal history and was involved in a relatively small number of transactions over a 9-day period. While the principle of parity has application, I must take into account the subjective cases before me together with the objective seriousness of the offence and each offender's role in it. Individualised justice is a fundamental principle in sentence proceedings. 5. Although Mr Moussa and Mr Ali's criminality is slightly higher than that of Mr Ghazaoui and Mr Hawchar, I find that their subjective cases and good prospects of rehabilitation call for sentences of imprisonment in the same range as those imposed on Mr Hawchar and Mr Ghazaoui. 6. In Ms Elayouby's case, I find that there are a number of distinguishing features that call for a very different type of sentence being imposed upon her. Although a term of imprisonment, it will be served in the community. The distinguishing factors in her favour include the following: 1. Although she was personally responsible for a significant number of bank deposits involving a substantial amount of money, I find that her role was at the lowest end of the range having regard to the fact that at all times she was following directions and she was dispensable to the group, having regard to the fact that she was used to register the van in her name and lease the properties in her name. 2. Her moral culpability is significantly reduced having regard to her deprived and disadvantaged background. 3. Her subjective case is a compelling one and, in particular, the exceptional hardship that would be caused to her son if she were imprisoned calls for a substantial modification of an otherwise appropriate penalty. Full-Time Imprisonment or ICO? 1. In each case, the only appropriate penalty is one of imprisonment. In the case of Mr Moussa and Mr Ali, I have considered whether an Intensive Correction Order (ICO) can be imposed. I determine that I cannot proceed by way of an ICO in light of the fact that a sentence of more than 2 years is warranted. 2. On behalf of Ms Elayouby, I am urged to consider the imposition of an ICO as an appropriate penalty in this case. 3. There is no doubt that this offence is a serious one. General deterrence is an important consideration but not the only sentencing consideration. Rehabilitation, and the protection of the community that successful rehabilitation affords, is also a relevant and important matter. As stated in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [124]: By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ). 1. While there must be consistency in sentencing federal offenders, the administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (at [49]). 2. In R v Pullen [2018] NSWCCA 264, Harrison J had occasion to consider what were relatively new amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW), stating that the result of these amendments is that – in cases where an offender's prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community – an Intensive Correction Order may be available, even if it may not have been under the old scheme. His Honour went on to state that the new scheme makes community safety the paramount consideration: [89]. 3. In R v Fangaloka [2019] NSWCCA 173, Basten JA (Johnson and Price JJ agreeing) said that the concept of community safety identified in s 66 undoubtedly covers protection of the community from the offender and the rehabilitation of the offender referred to in ss 3A(c) and (d). His Honour noted that there remains the question as to whether s 66(1) is intended to confer paramountcy on community safety over the other considerations which must be taken into account. His Honour was in favour of a restrictive rather than facilitative approach, stating that the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or full-time detention, is more likely to address the offender's risk of reoffending. His Honour went on to say at [63]: "unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight". 4. In Casella v R [2019] NSWCCA 201, Beech-Jones and N Adams JJ took issue with the interpretation placed on s 66 in Fangaloka. His Honour Beech-Jones J stated at [108]: On its face, s 66(2) only requires an assessment of whether making the order or serving the sentence by way of full‑time detention is more likely to address the offender's risk of reoffending. It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not represent a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety. If this is truly the effect of Fangaloka, then I have significant doubts about whether it is correct. 1. There appears to remain some conflict in the authorities in respect of the interpretation of s 66, notwithstanding the fact that the special leave application to the High Court in Fangaloka was dismissed. 2. I am satisfied that the making of an ICO is more likely to address the offender's risk of reoffending because I am satisfied that her progress will be better facilitated by treatment and supervision in the community. The Attorney-General, in the Second Reading Speech for the Bill introducing the relevant amendments to the Crimes (Sentencing Procedure) Act, said the following: Proposed section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why proposed section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. 1. Ultimately, a balance must be struck and appropriate weight must be given to all factors which must be taken into account in arriving at the appropriate sentence by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357. Having done that, I am satisfied that it is appropriate in all of the circumstances to impose a term of imprisonment to be served by way of an Intensive Correction Order. Schedule of Relevant Cases 1. The Crown relies on four cases said to be relevant. The Crown concedes that no particular case is directly comparable to the present case but that the cases relied upon contain factual similarities as well as differences and will generally assist in the application of the relevant legal principles to the sentencing exercise. While I accept the usefulness of other cases in facilitating a consistency in the application of relevant legal principles, these cases provide little assistance in determining a range of sentences. Orders 1. I make the following orders in each case. Fouad Moussa 1. The offender is convicted. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 9 months imprisonment, commencing on 20 March 2020 and expiring on 19 December 2021, with a balance of term of 1 year 10 months imprisonment. The total term is 3 years 7 months imprisonment. 2. The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary. 3. I recommend that the offender is referred to a psychiatrist and a mental health nurse working for Justice Health in order to treat his OCD and associated symptoms of depression and anxiety. Ahmad Ali 1. The offender is convicted. Taking into account a discount of 20% for the utilitarian value of the plea of guilty, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 6 months imprisonment, commencing on 20 March 2020 and expiring on 19 September 2021, with a balance of term of 1 year 10 months imprisonment. The total term is 3 years 4 months imprisonment. 2. The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary. 3. I recommend that the offender be referred to a psychiatrist and a mental health nurse working for Justice Health in order to treat his panic disorder and associated symptoms of depression and anxiety. Elamira-Zahira Elayouby 1. The offender is convicted. Taking into account a discount of 20% for the utilitarian value of the plea of guilty, pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the offender is sentenced to a term of imprisonment of 2 years to be served by way of an Intensive Correction Order. That sentence will commence today, 20 March 2020. 2. The standard conditions that apply during the term of the order are that the offender: 1. must not commit any offence; and 2. must submit to the guidance and supervision of Community Corrections for as long as they deem necessary. 1. I impose the following additional condition for the duration of the order, that the offender: 1. continue to attend regular counselling sessions with Dr Marian Coffey, or a delegate of Dr Coffey, or another suitably qualified practitioner. 1. I direct that the offender attend the office of Community Corrections at Bankstown within seven days of today to facilitate the administration of the order. ********** Amendments 21 March 2020 - Amended to correct typographical errors at [197]-[198]. 21 March 2020 - Amended to correct typographical errors at [203]. 22 March 2020 - Amended to correct minor typographical errors throughout. 23 March 2020 - Amendment to para [3] to substitute words 'District Court Judge Noman' for 'Noman J'. 15 June 2020 - Correction to appearances for Commonwealth Director of Public Prosecutions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2020