R v BB (No 7) [2021] NSWSC 1504 (24 November 2021)

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Case Name:	R v BB (No 7)
Medium Neutral Citation:	[2021] NSWSC 1504
Hearing Date(s):	24 May 2021; 22 June 2021; 11 October 2021 and further written submissions and material
Date of Orders:	24 November 2021
Decision Date:	24 November 2021
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Convicted that, between about 19 March 2009 and about 1 April 2010, in Australia and elsewhere, the offender engaged in conduct that contravened a United Nations sanction enforcement law contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth), the particulars of which include: (a) The United Nations sanction enforcement law contravened was the making of unauthorised sanctioned supplies, contrary to reg 10 of the Charter of the United Nations (Sanctions -- Iran) Regulations 2008 (Cth); (b) The sanctioned supplies were the supplies, sales or transfers to HICo Fze of export sanctioned goods, namely approximately 90 tonnes of export sanctioned nickel alloys, ordered by HICo Fze pursuant to HICo purchase orders HIC/C.E/1078 and HIC/C.E/1079, as a direct or indirect result of which supply, sale or transfer, those goods were transferred to Bandar Abbas, Iran. (2) The offender is sentenced to a term of imprisonment of 2 years to commence on 24 November 2021 and expiring on 23 November 2023. The term of imprisonment is to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW). (3) The Intensive Correction Order is subject to the following standard conditions: (a) The offender is not to commit any offence while subject to this Intensive Correction Order; (b) The offender must submit to supervision by a Community Corrections Officer; (c) The relevant agency for the purposes of supervision is Hornsby Community Corrections District Office. (4) The Intensive Correction Order is subject to the following additional conditions: (i) The offender shall today report to Hornsby Community Corrections Office for the purpose of implementing the foregoing; (ii) The offender is to perform 20 hours of Community Service Work per month during the entirety of the duration of the Intensive Correction Order (being a total of 480 hours); (iii) The offender is to be released to home detention for a period of 6 months, commencing 24 November 2021 and concluding 23 May 2022.
Catchwords:	CRIME – SENTENCING – breach of United Nations sanctions against Iran rendered criminal by operation of Commonwealth legislation – discussion of culpability and subjective circumstances – appropriateness of sentence other than full-time custody – parity in sentence with co-offender – Intensive Correction Order imposed
Legislation Cited:	Charter of the United Nations Act 1945 (Cth), s 27(1) Crimes (Administration of Sentence) Act 1999 (NSW) Crimes Act 1914 (Cth), s 17A s 165 of the Evidence Act 1995 (NSW)
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn [1893] 6 R 67 Hofer v The Queen [2021] HCA 36 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Llewellyn v R [2011] NSWCCA 66
Category:	Sentence
Parties:	Regina (Crown) BB (a pseudonym) (Accused)
Representation:	Counsel: M McHugh SC / A McGrath (Crown) S Pararajasingham (Accused) Solicitors: Director of Public Prosecutions (Cth) (Crown) Musgrave Legal (Accused)
File Number(s):	2016/321930
Publication Restriction:	Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

1 HIS HONOUR: BB, the offender, has pleaded guilty to a single count of a contravention of s 27(1) of the Charter of the United Nations Act 1945 (Cth). The offence carries a maximum penalty of 10 years’ imprisonment and/or a fine of 2500 units or the greater of three times the value of the impugned transaction. The Court is required to sentence the offender. Previously, the Court sentenced the offender’s wife and co-offender, AA.

2 The offence in question was committed by the offender when he engaged in conduct the effect of which was to supply 90 tonnes of export sanctioned nickel alloys to an Iranian-owned Dubai-based company HICo Fze (hereinafter “HICo”) for the nickel alloys to be then transferred to Iran. This conduct occurred between 19 March 2009 and about 1 April 2010.

3 The offender’s home was searched on 7 August 2013, from which time the offender has been on notice that there was an investigation into the transactions and on 4 October 2016 a Court Attendance Notice was served. The Brief of Evidence was served on 17 January 2017 and concluded on 28 March 2017.

4 The delay is a matter that the Court takes into account, as it has, on the material before the Court, exacerbated the stress and other issues affecting BB. I do not criticise either the Crown or the law enforcement agencies for the delay.

5 There has been one trial in which the jury was unable to reach a verdict and that accounts for some of the delay, but not all of it. The remainder relates to the complicated nature of the transactions and the detail that was required to be obtained, often involving overseas communications, in order to complete the Brief of Evidence and prosecute the proceedings.

6 The criminal offence created by s 27(1) of the Charter of United Nations Act may involve a significant range of criminal conduct. As is clear from the foregoing description of the offence it involves conduct that is in breach of one or other United Nations sanctions against one or other nations from time to time.

7 As a consequence, the offence may involve the provision of nuclear or other mass destruction weapons; the technology to manufacture such weapons; weapons of any description; and other items that may directly cause significant harm to a persecuted minority or another country in time of conflict. Further, the provision will, depending upon regulations and other instruments, apply to all manner of sanctions that may be imposed by the United Nations and which are rendered criminal by the Australian Government. The provisions of s 27(1) of the Charter of The United Nations Act are not confined to Iran or confined to the particular sanctions that were breached by the conduct of the offender.

8 The range in possible criminality is significant. The goods that were exported to Iran by the offender were that which is commonly referred to as super alloys and was a sanctioned nickel alloy. This nickel alloy was used, in these circumstances, for the domestic production of electricity.

9 The Crown does not suggest that the sanctioned goods were used in the production of weapons, either directly or indirectly. The electricity produced by the turbines ultimately utilising the sanctioned goods was electricity for domestic purposes.

10 As a consequence of the plea, there is a Statement of Agreed Facts which forms the basis for the sentence that the Court is now to impose. The Crown also relies on a number of emails, some of which are dealt with in the Agreed Facts; certain exhibits from the offender’s first trial; evidence from Mr Anthony (Tony) Habib, including cross-examination; evidence of Mr MP; and the offender’s ERISP.

11 As has been implied in the immediately preceding paragraph, the facts now recited are taken from the Agreed Facts. There are some matters that were disputed and to the extent necessary the other evidence is relied upon to reach conclusions on the disputed matters.

12 The material that was exported to Iran included nickel alloys of the following types: Inconel 738LC; Inconel 792; Inconel 939; and Hastelloy-X. Each of those goods qualified as export sanctioned goods because each was composed of not less than 25% by weight of nickel or not less than 30% by weight of nickel and cobalt combined.

13 The three Inconel alloys are, as was earlier mentioned, part of the family referred to as “super alloys”. These alloys may be used in the production of weapons and the refinement of uranium, which, readily, explains the sanctioning of the goods. However, as earlier stated, it is not suggested that the alloys were used for that purpose in this case.

14 The goods were transferred by two shipments one for 60 tonnes and one for 30 tonnes. The details of the shipments are provided in the Agreed Facts, and it is unnecessary to repeat them in these reasons.

15 It is sufficient for present purposes to indicate that the goods were sourced in the United Kingdom and shipped from the United Kingdom to the free port in Dubai, United Arab Emirates (UAE) and, thereafter, from the free port in Dubai to Bandar Abbas, Iran. The ordering of the goods in the United Kingdom; the organisation of the sourcing of the goods; and their shipment to Dubai were each arranged, directly or indirectly, by the offender.

16 I should make clear that I accept and take into account all the facts that have been agreed between the parties and the very brief summary that is contained in these remarks is not intended to detract from the details contained in those Agreed Facts.

17 It is necessary to set out an overview of the corporate structure with which the offender was dealing.

18 HICo was, together with a company called Hirbodan Management Company (hereinafter “Hirbodan”) part of a worldwide energy, infrastructure and industrial projects engineering and contracting, financing, procurement, trade and project development group, serving industries and projects in the oil and gas, petrochemical, power and utility, infrastructure, renewable energy and industrial sectors. HICo and Hirbodan are related companies. HICo was Iranian owned and shared the same logo as Hirbodan.

19 The offender’s co-accused, AA, was employed by Hirbodan from about 5 May 2003, but worked day to day under the banner of HICo. [REDACTED].

20 HICo was officially headquartered in Jebel Ali, UAE, but AA worked mostly from Hirbodan’s offices in Tehran, Iran.

22 During the period of offending, the offender would regularly telephone AA in Tehran, including at Hirbodan’s offices in Tehran. The offender also visited Tehran and, in particular, the Hirbodan’s offices in that city, prior to the period of offending. There he met with AA and was introduced to her colleagues.

23 Over and above the foregoing, it is necessary to understand that there was a group of companies known as the MAPNA Group, headquartered in Tehran, which was involved in the construction of power plants. It was partly state-owned in Tehran and partly privately owned.

24 A division of that group was called Mapna Turbine Blade Engineering & Manufacturing Company (known by its acronym in Farsi as PARTO). It was involved in the design, engineering and manufacture of gas turbine blades and cores. The sanctioned goods were imported by AA on behalf of Hirbodan and HICo for the use by PARTO in the manufacture of turbines for domestic electricity production, for which purpose the sanctioned goods were provided.

25 The business relationship between AA and BB was not confined to the transactions for which the prosecution has occurred. Together they established a joint Iranian business venture, together with other members of the offender’s family.

26 That joint venture was involved in importing goods into Iran. [REDACTED]. The goods imported into Iran are not goods that are suggested to be sanctioned, except for the goods involved in these impugned transactions and the offence for which the Court is now required to sentence.

27 [REDACTED] represented that its head office was in Tehran. It was staffed by AA and also represented that it had an Australian office in Sydney that was staffed by BB.

28 [REDACTED] described itself as an engineering and marketing company and its promotional material also suggested that it was involved in the oil and gas industries as an engineering company. The majority of goods imported into Iran by [REDACTED] were building products and other sophisticated products used in industrial metallurgy and machining.

29 In August 2006, [REDACTED] had a stall at the 6th Tehran International Construction Fair in Tehran, which both AA and BB attended.

30 The romantic relationship between the offender, BB, and his wife, AA commenced in 2006 when they both travelled together in Europe. BB proposed to AA from Australia in 2007 and they next met in person in Iran in November 2008. BB separated from his first wife in about 2004, from which time he suffered some depression.

31 At about the time of BB’s return from Iran to Australia, he telephoned an acquaintance, Mr Habib, inquiring about the availability of one or other of the super alloys for supply to a customer. Mr Habib had experience in the supply of metals including special alloys.

32 Upon BB’s return, BB and Mr Habib began working from the same business premises. Initially, Mr Habib communicated with a sales representative of the Western Australian-based supplier, Stainless Pipes and Fittings Pty Ltd (hereinafter “SPF”) enquiring after the company’s capacity to supply the Inconel alloys and the Hast-X alloy. In April 2009, SPF advised Mr Habib that it was able to supply the high-grade nickel alloys.

33 On 18 and 19 May 2009, AA forwarded to BB two email chains disclosing that she was attempting to procure electronic beam welding equipment for the purpose of welding Inconel and other metals to create industrial turbines.

34 AA corresponded by email with BB in May 2009 relating to other prospective suppliers of the alloys outside Australia.

35 On 22 May 2009, SPF, having obtained a quotation from Firth Rixson Metals Limited in the UK, provided a quotation for SPF’s supply to Metalloy Pty Ltd (hereinafter “Metalloy”) (a company established and conducted by BB of a minimum 10 tonne quantity of UK-manufactured Inconel alloys to BB.

36 There are a number of email exchanges between AA and BB. Some of the emails sent to AA are over the name of Mr Habib. There is a dispute as between the Crown and the offender as to whether those emails were sent by BB.

37 I take into account the fact that the Crown is required to prove every matter against the offender beyond a reasonable doubt. On the other hand, the offender, in order to prove something that is sought to be to his credit, need only prove those matters on the balance of probabilities.

38 Notwithstanding the foregoing onus and burden of proof, I have formed the view that the emails sent over the name of Mr Habib on 23 May 2009 and 31 May 2009, together with the emails of 16 June, 18 June, 29 June and 30 June and the later emails in August, sent over the name of Mr Habib, were in fact sent by BB. That inference is drawn on the basis of the relationship between the parties and the other matters and communications between the parties and in particular to the contents of the emails and the assumption, in some of them, of knowledge that would have been available only if the person communicating was in fact BB.

39 Further, I rely on the evidence of Mr Habib and, to a lesser extent, Mr MP. Each denies sending the emails. I warn myself and take into account, in my assessment of Mr Habib’s evidence, the circumstance that he was involved in sourcing and ordering the sanctioned goods and, pursuant to s 165 of the Evidence Act 1995 (NSW) in that, absence such denials, Mr Habib may be reasonably supposed to be involved, even if only peripherally, in the criminal conduct and, therefore, may be seeking to downplay his involvement or extricate himself from the conduct.

40 Having come to the conclusion that the emails were sent by BB, I do not consider that the Crown has proved that BB used the name Habib as a means of obfuscation or for the purpose of hiding his identity. The material before the Court discloses that one of the computers, from which the emails would most easily have been sent, automatically signed the emails in the name of Habib and its default account name was the account of Mr Habib. It is far more likely that, in the circumstances as they pertained, BB simply utilised a particular computer and, in so doing, did not bother to alter the default email account or the signature block on the email that was being sent. In other respects he made no attempt to hide his involvement.

41 The email chains, being those in dispute and the other emails, disclose the role of BB in procuring and sending these sanctioned goods to Tehran. Moreover, towards the end of July 2009, BB sought to change the labels on the shipping boxes that were destined, ultimately, for Iran, to disclose that the contents were not super alloys or the sanctioned goods, but were commonly used stainless steel that was not the subject of UN sanction.

42 In particular, on 30 July 2009, BB emailed SPF stating that his clients required that the documents for the super alloys be labelled as stainless steel. BB informed SPF that the change was at the request of the client and was for “commercial security reasons”. He informed another representative of SPF that the change was because the client did not want to insure the goods as super alloys, presumably on the basis that super alloys were more expensive to insure.

43 It is unnecessary to be more detailed in the recounting of the email contents and in the role of BB. It is sufficient, for present purposes, to make clear that the facts as set out in the Statement of Agreed Facts have been taken into account in their entirety and that BB plainly organised the purchase and shipping and sought to disguise the contents of that which was being shipped. Those goods were sanctioned goods and were delivered in two shipments from the United Kingdom to Dubai and from Dubai to Iran.

44 The goods in question were worth US$3,610,184.60, which amount was paid by HICo for the goods contained in both shipments. Metalloy, the company with whom BB was involved for these transactions, received US$315,142.40.

45 The Crown has supplied an Agreed Transaction Chart which usefully depicts the transactions and shipments subject to the offence for which a sentence must be imposed. The personal financial benefit for BB, as a result of the offence, was US$231,978.75, being his individual profit-share of the transaction.

46 It is unnecessary to detail the investigations of the Australian Federal Police, which also forms part of the Agreed Facts before the Court. The documentation was voluminous and accounts for some of the delay to which the Court has already referred.

47 Further delay was caused, albeit unmentioned earlier in these reasons, by the inability of the Court to conduct a jury trial under the COVID-19 restrictions that were in place for part of the period during which BB was before the Courts.

48 Of importance in relation to the investigation is the record of conversation between the Australian Federal Police and BB, during which BB stated:

49 Lastly, in terms of the Agreed Facts, while it is more relevant to the subjective circumstances of the offender, it should be recited that [REDACTED].

50 BB is married to AA. They have a daughter aged six years. He is also the father of three sons aged 34, 29 and 24 from a previous marriage. His youngest son lives at home with the offender, his wife and their daughter.

51 In reaching the conclusion as to the emails being sent by Mr Habib, I have taken into account the evidence of Mr Habib and his cross-examination during the previous trial. I do not take account of any failure by those representing the accused in that trial to put to Mr Habib that he, not BB, sent the emails in dispute.

52 While Browne v Dunn^[1] is a rule of fairness and practice, its application to the criminal law against an accused or offender is highly questionable. First, like the rule in Jones v Dunkel^[2] it presupposes a burden of proof and a requirement to adduce evidence. Secondly, an accused at trial (or an offender on sentence) may have no knowledge of particular facts and the cross-examination may be directed at casting doubt on the Crown’s case, rather than proving or asserting the unreliability or untruthfulness of any particular witness or version.^[3]

53 As earlier stated, the finding in relation to the authorship of the emails relates to the inferences that may be drawn from the nature of the communications between AA and BB; the contents of the email and the facts assumed therein that more obviously identify the author as BB; and the nature of the relationship between AA and BB. Nevertheless, the Crown has not satisfied the burden that the use of Mr Habib’s name was intended to be subterfuge, as distinct from the automatic operation of the computer that was being used as a matter of convenience.

54 It is necessary for the Court to determine the objective seriousness of the offence. In so doing, it is important to bear in mind the relative objective seriousness of BB as compared to AA. As earlier stated, the range of offending encompassed by the provisions of s 27(1) of the Charter of the United Nations Act is extremely broad and includes the most serious conduct that would have the effect, or slightly less seriously the potential, of causing huge loss of life or the significant subjugation and torture of minorities. The conduct of AA and BB are not in that category.

55 As the Court and judicial officers have been told on a number of occasions, the worst category of case is not confined to that for which one cannot imagine a worse category. Unfortunately, human ingenuity can always imagine a worse category of case.

56 However, in this instance, while the enforcement of United Nations sanctions is extremely important for Australia and the world, the goods imported were intended to be used for peaceful purposes; each of AA and BB believed the goods were to be used for peaceful purposes; and they were used for such purposes. Moreover, there is no evidence that either AA or BB were aware that the goods could possibly be used for other purposes.

57 As the Court commented in the sentencing of AA, and as is obvious from the comments above, the Court takes the view that the enforcement of United Nations sanctions is an important if not essential aspect of global relations. Those sanctions are used, or intended to be used, to avoid armed conflict and to deter the breach by governments and others of fundamental human rights, sometimes both.

58 Such sanctions are intended to deter governments and others from conduct that breaches international standards relating to human rights or the relations between nations. In that aspect, general deterrence in sentencing those who have breached or may breach such sanctions is an important criterion.

59 General deterrence is a more important aspect in relation to BB than it was for AA. That circumstance relates to the fact that BB was living in Australia and a citizen of Australia and was not living, working or a citizen of Tehran, which affected the determination of moral culpability in relation to AA. It also affected the significance of general deterrence. In the foregoing I make clear that I accept BB was both a citizen of Iran and Australia.

60 In the operation that existed, it seems to me that AA’s role was more senior and objectively more serious than the role played by BB. That is not to say that the role played by BB was not essential in the commission of the offence, but it was in large measure the result of directions given from Tehran by AA and, in turn, her superiors, and orders placed by them. BB was not acting on his own initiative.

61 Having made that comment, it is important to understand that the motive for the conduct of BB does not assist him. The motive was plainly, at least in part, profit, although I accept that, to some extent, the motive may have been associated with the relationship between BB and AA.

62 Having noted the objective seriousness of the offending, in terms of the role of each, is less serious for BB than it is for AA, I take the view that, the differences in citizenship and domicile render the moral culpability associated with the offender more serious in the case of BB. And, as earlier stated, general deterrence is a much more significant factor.

63 Notwithstanding that aspect, I do take into account the fact that BB has family in Tehran and, on the balance of probabilities, would have feared for their safety were he to have refused to comply with a request by the Government of Iran or one of its agencies. However, that factor, in my view, is one for which there is little evidence and cannot affect in any substantial way the sentence to be imposed.

64 For all of the foregoing reasons and the facts associated with this breach, compared with the kind of action that can be encompassed in a breach of s 27(1) of the Charter of the United Nations Act, I consider the conduct of BB to be well below mid-range in objective seriousness and, would, given my comments about moral culpability, assess it at about the same as that of AA. In so doing I accept that the offence was planned and premeditated.

65 I also accept that it was sophisticated, although I doubt that I would categorise it as “highly sophisticated”, as has the Crown. In any event, it is difficult to envisage an offence of this kind being committed without significant planning and premeditation and therefore the Court takes the planning and premeditation into account in determining the objective seriousness of the offence, but not adding to what otherwise is the criminality of the offending.

66 I do not take account of any narcissistic personality style that may be possessed by BB in determining either moral culpability or objective seriousness. To the extent that the offender, BB, suffers psychological issues, they are taken into account in determining subjective circumstances and the ultimate sentence to be imposed. I do not consider his psychological issues causative, but they do offer an understanding of the conduct.

67 As already stated, BB is 62 years old. He was born in Iran and he has no previous history of offending.

68 Having been born in Iran and travelled to Australia, his early background must have been problematic. He lived through the Iranian revolution and the Iraqi invasion. He moved to Australia in 1992 and was granted citizenship in 1994.

69 Thus, the Court can take into account not only the absence of any evidence of offending in Iran, but the fact that he has lived in Australia for almost 30 years without blemish and without becoming known to the police or law enforcement agencies.

70 He has been employed throughout his time in Australia and, notwithstanding his qualifications as an architect, has worked as a building contractor and other less skilled functions. He has contributed to Australia and continues so to do.

71 It has been eight years since police executed the warrant and searched his premises. During all of that time the offender has suffered the stress associated with having these proceedings hanging over his head and the financial burden of defending them initially and ultimately of concluding them. Nevertheless, the delay is not, in my view, the result of any dilatoriness on the part of investigating or prosecuting authorities and the additional stress is considered in the subjective circumstances and is not of any or any significant effect on the sentence.

72 Notwithstanding the current charge before the Court to which BB has pleaded guilty, the offender can be treated as a person who is a first-time offender with an otherwise unblemished record and good character. That good character and the fact that this is the first offence committed by BB entitles BB to the leniency afforded a first offender. There are references to confirm BB’s good character.

73 Counsel for BB relies upon contrition. I accept that there has been contrition and he has, of recent time, acted in a manner which assists the authorities in the proceedings for the charge that has been accepted. Nevertheless, his contrition is not complete.

74 I accept the comments of the psychologist, Ms Dombrowski, that BB expressed his regret for his involvement in the offending. The comments in the Report, recited in the submissions of the offender are informative. They are to the following effect:

“[BB] expressed regret for his involvement in the subject offending: ‘I hate it ... I regret it ... I was making too many decisions too fast and too confident ... I should have not done it ... I regret I didn’t put my foot on the break [sic]’. When asked if he knew he was breaching the United Nations sanctions he said: ‘I always felt that I didn’t know, but inside I knew ... It was some sort of no and some sort of yes ... At the back of my mind, I knew that and perhaps couldn’t resist to push the thing forward’.”^[4]

75 The foregoing represents a genuine expression of contrition and has a degree of verisimilitude that is often missing in some of the more fulsome expressions of contrition that are tendered during the course of sentencing proceedings more generally.

76 I do not consider that the contrition is affected in any way by the contest as to whether he or Mr Habib authored the emails. I have found, beyond reasonable doubt, that BB authored them, but I have done so on the basis of inferences available to the Court leading to an irrefragable conclusion.

77 It may well be that BB simply does not recall sending them or using that mechanism. The conclusion reached by the Court to the effect that the use of Mr Habib’s name was automatic may account for the ignorance or lack of memory of the fact.

78 On the other hand, given the result of the trial that was conducted, one cannot exaggerate the utilitarian value of the plea of guilty. There is no reason to suspect that the Crown would not, once more, have failed to convince a jury of the guilt of the offender. The foregoing is not intended to suggest that there is a weakness in the Crown case; only that the issues to be decided, were it to go to trial again, were complicated and difficult to understand for laypersons.

79 As to rehabilitation and the likelihood of reoffending, I make the strong finding that the prospects of rehabilitation, if rehabilitation be the right word in this context, are extremely high. In my view there is no likelihood that BB will reoffend. Such a finding accords with the assessment provided to the Court in the Sentencing Assessment Report and the opinion of the psychologist.

80 As already indicated, the Court has the benefit of a psychologist’s report. It assesses BB as exhibiting features consistent with narcissistic personality style which leads to a grandiose self-image and an exaggerated sense of self-importance and competence.^[5]

81 The assessment by Ms Dombrowski is not to the effect that BB has pathological narcissism. Rather, he may have features associated with dramatic/erratic personality disorder, with narcissistic features. In some part, at least, this may have allowed him to justify the circumvention or disregard of the United Nations sanctions. However, the circumstances, while providing a context and rationale for the criminal behaviour, do not justify it. Nor do they warrant any substantial ameliorating effect in the sentence.

82 Over and above the foregoing, the Court has recently received material relating to the health of BB and, in particular, issues associated with an aneurysm. It is unnecessary for the Court to detail these issues, at this point, although some detail is provided shortly.

83 It is sufficient, for present purposes, to note that the circumstances would render BB incarceration more onerous and is a matter that the Court takes into account in determining the nature of the sentence to be imposed.

84 Ultimately, in determining an appropriate sentence for BB, I am required to take into account issues of parity and the plea of guilty. As earlier stated, the plea of guilty is more significant than its timing might otherwise indicate, because of the complexity of the proceedings and the difficulty that the Crown may have, and has had, in persuading a jury of guilt beyond reasonable doubt.

85 Some of the difficulty is associated, as earlier stated, with the complexity of the transactions and the sheer volume of communications that it has been necessary for the Crown to adduce in order to prove the guilt of BB. Nevertheless, the plea of guilty, even though late, is of significant utilitarian value.

86 In the course of these comments, I have not traced the legislative regime and the manner in which the conduct in question is rendered criminal. The Court performed that task when it sentenced AA and to do so again would simply be repetitive for no apparent purpose. I adhere to the views expressed in relation to the legislative scheme in those sentence remarks.^[6]

87 BB medical prognosis is guarded and relates to small vessel ischaemic disease and no infarction, as yet. There seems to be a suspicion of a basilar tip aneurysm, which was confirmed by angiograph to be somewhere between 2.3 and 3 mm. This is a serious issue which must be, at the least, monitored.

88 BB has been assessed as low risk of reoffending by both the psychologist and in the Sentence Assessment Report and has been assessed by Corrective Services as being suitable for an Intensive Correction Order and, if thought appropriate, home detention. Home detention would allow BB to continue employment. It would also permit him to receive medical treatment and undergo any medical procedure.

89 As for the plea of guilty and, to the extent that it is included in that course, any assistance to authorities as a result of the Agreed Facts, I would allow more than would ordinarily be appropriate for such a late plea. In particular, I would allow a discount of 20% to provide for the plea of guilty and, given the objective seriousness and the subjective circumstances of BB, I would commence a sentence at 30 months’ imprisonment. That figure, obviously, takes account of the objective seriousness and the subjective circumstances, but, in particular, is at that level because of the need for general deterrence and consideration of parity.

90 By applying the discount for the plea of guilty to that figure, I calculate the term of imprisonment as 24 months. As a consequence of that calculation, it is necessary for the Court to determine whether full-time imprisonment is appropriate.

91 I take account of the fact that full-time imprisonment should be a last resort and imposed only in circumstances where no other sentence is appropriate.^[7]

92 The 20% discount for plea of guilty and “assistance” takes into account the assistance provided by agreement as to the facts; the timing of the plea of guilty and the benefit to the community of the plea of guilty as well as the plea itself; and the cooperation with law enforcement agencies, including the fact that there has been some disagreement as to the facts before the Court on sentence. The sentence to be imposed takes account of the need for general deterrence, which has been already mentioned and, to the extent necessary, specific deterrence, although, as stated, I do not consider that specific deterrence is a significant factor in this sentence.

93 I have considered the probable effect that the sentence will have on BB family and dependents. As earlier remarked, he is married with a young child. One of his sons also resides with him and a full-time prison sentence would deprive them of their major income; split a family that is no doubt in need of support; and cast the burden of childcare solely onto AA. But these factors are not exceptional or out of the ordinary and I do not ameliorate the sentence on their account.

94 The matter of most concern is, to the extent not otherwise dealt with, the provision of a sentence that adequately punishes the offence and acts appropriately as general deterrence. In my view, BB is, and will be, a positive contributor to Australian society.

95 Nevertheless, he has engaged in criminal conduct that is serious. A prison sentence, being a sentence of full-time imprisonment, is unnecessary and the punishment and general deterrence can be dealt with adequately by way of Intensive Correction Order, with some conditions.

96 It is appropriate that, taking into account the pluses and minuses associated with the comparison with his co-offender, AA, that he has imposed upon him a sentence of the same length as that which was imposed upon her. The only remaining issue is whether it is appropriate to impose home detention and community service.

97 I have come to the conclusion that community service is necessary in order to achieve a greater degree of general deterrence. I am mindful of the need for general deterrence and I also consider that, in the absence of home detention, such general deterrence will not be achieved by the imposition of an Intensive Correction Order. A Home Detention Order would allow BB to leave the house for employment and study purposes; for his medical needs; basic errands, such as grocery shopping or exercise; and for certain family outings. It would prohibit the consumption of alcohol or attendance at pubs.

98 BB’s family history, given to the psychologist, is that his paternal grandfather was a religious leader amongst Shiite Muslims, but there is no evidence before the Court as to whether BB is particularly religious or observant. If he were observant, then the prohibition on alcohol would probably be of no significance.

99 Overall, I consider it appropriate to impose both community service requirements and home detention for a period. An Intensive Correction Order involves a significant degree of leniency, but, in this case, is an appropriate custodial sentence and operates as a substantial punishment, bearing in mind all of the matters to which the Court has had regard.

100 In all of the circumstances, the offender will be sentenced to community service for 20 hours per month over the 2-year period, namely 480 hours, and home detention for a period of 6 months, concluding 23 May 2022.

Supreme Court of New South Wales

R v BB (No 7) [2021] NSWSC 1504 (24 November 2021)