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R v Ali; R v Elayouby; R v Moussa [2020] NSWDC 56

sentence — joint commission of one count of dealing with money intending that it would become an instrument of crime offence contrary to ss 11.2A(1) and 400.3(1) of the Commonwealth Criminal Code — offenders involved in money laundering operation with additional co-offenders — offence relates to over $17 million — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — although not pleas at first opportunity, very significant utilitarian value having regard to nature of allegations and estimated length of trials — 20% discount for utilitarian value— while Crown case strong, pleas of guilty also reflect willingness to facilitate course of justice and contrition — nature and circumstances of the offence — s 16A(2)(a) — generally speaking, large number of transaction involving small amounts of money will be more serious than single transaction of large quantity which may be seen as isolated offence — ongoing money laundering business, not an isolated incident — system used not particularly sophisticated and methods utilised to avoid detection somewhat simplistic and amateurish — overall objective gravity falls middle of range of seriousness — offenders occupied lower role in overall enterprise — Co-offender 2 subservient role, followed directions and entirely dispensable — their role least serious of 6 offenders charged and their role falls at lower end of range of seriousness — although motivation to obtain financial benefit, the extent to which this operates as an aggravating factor is significantly moderated having regard to Co-offender 2’s financial circumstances at the relevant time — Co-offender 3’s role slightly more serious than Co-offender 1 as Co-offender 3 gave directions to Co-offender 2 and had some authority to deal with unforeseen circumstances — both Co-offender 1 and 3 motivated by financial reward, neither in type of financial hardship suffered by Co-offender 2, so motivated by financial reward factor adverse to them — Co-offender 1 and 3’s objective seriousness at middle level — antecedents — s 16A(2)(m) — Co-offender 2 came into enterprise following history of abuse, deprivation, isolation and poverty — offender struggling financially and introduced to operation initially not appreciating it was an illegal enterprise — general deterrence — s 16A(2)(ja) — general deterrence, denunciation and punishment are relevant and important considerations — money laundering difficult to detect, investigate and prosecute and incumbent upon courts to impose sentences that deter others from engaging in this type of serious criminal activity — specific deterrence — s 16A(2)(j) — while each offender willingly engaged in sustained criminal activity, weight given moderated having regard to each offender’s prior good character, compliance with bail and not re-offended — at time Co-offender 3 committed present offences, had no prior criminal history— mental condition — s 16A(2)(m) — no direct nexus between Co-offender 3’s mental health issues and offending conduct to reduce moral culpability — Co-offender 3’s mental health issues taken into account in assessing weight given to subjective case and insofar as relevant to conditions under which they will serve term of imprisonment — Co-offender 1’s panic disorder, severe depression, anxiety and concern for son’s health taken into account as time in custody more onerous — rehabilitation — s 16A(2)(n) — Co-offender 3 has good prospects of rehabilitation, committed to their young family and unlikely to engage in criminal activity which would risk further removal from their family in the future — Co-offender 1 good prospects of rehabilitation and unlikely to reoffend — Co-offender 2 has excellent prospects of rehabilitation and is unlikely to reoffend — co-operation — s 16A(2)(h) — Co-offender 3’s type of co-operation with authorities by surrendering items should be recognised in determining sentence as facilitates and promotes cooperation by others — although no person arrested, charged or prosecuted, surrender of items removed from community — assistance warrants 10% reduction — offender’s family and dependants — s 16A(2)(p) — no suitable placement found for Co-offender 2’s child among family or friends — in light of unsettled state of law, in order to substantially modify otherwise appropriate penalty, sentencing judge must be satisfied hardship to offender’s son by reason of offender’s incarceration is exceptional — unique circumstances giving rise to utterly close bond between mother and child forged in difficult circumstances of abusive relationship, estrangement from family, living together in basic accommodation — sentencing judge satisfied gaoling Co-offender 2 and separating them for their son will cause significant emotion and psychological hardship to them and exceptional hardship to their son, who may well be placed in out-of-home care — sentence — Co-offender 1 sentenced to 3 years’ 4 months imprisonment with a 1 year 6 month non-parole period — Co-offender 2 sentenced to 2 years’ imprisonment to be served by way of Intensive Correction Order — Co-offender 3 sentenced to 3 years’ and 7 months imprisonment with a 1 year 9 month non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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