Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R

Abbas Elzein - Zahr Partners Ahmad Elzein - Zahr Partners Bilal Doughan - Astoria Lawyers Crown - Commonwealth Director of Public Prosecutions File Number(s): 2015/285145; 2015/285159; 2015/285186 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 26 August 2020 Before: Hunt DCJ

Judgment

1. BELL P: I have had the advantage of reviewing the detailed and careful analysis by Bellew J of these three related sentence appeals. For the reasons his Honour gives, error has been established in the sentencing of each of the three applicants. I agree with his Honour's assessment that no less a sentence is warranted in the case of Abbas. In the case of Ahmad and Doughan, I agree with the sentences which Bellew J has proposed, and the reasoning process underpinning those two resentences.
2. WALTON J: I have had the opportunity of reading the draft judgment of Bellew J in this matter. I agree with the orders proposed for the reasons provided in his Honour's judgment.
3. BELLEW J: In 2020, Abbas Elzein (Abbas), Ahmad Elzein (Ahmad) and Bilal Doughan (Doughan), along with a number of other co-offenders, appeared before the before the District Court for sentence. Each of them had pleaded guilty to various charges which arose from investigations undertaken by the "Polaris Joint Waterfront Taskforce" (JWTF) which was established to investigate the commission of offences involving goods under customs control, with a particular focus on the operation of sea cargo terminals in New South Wales.

Abbas Elzein

1. Abbas pleaded guilty to the following offences: 1. between about 19 November 2014 and 2 September 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth) (the CUA) (Abbas count 1); 2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Abbas count 2); 3. between about 24 February 2015 and 17 March 2015, at Sydney in the State of New South Wales, imported tobacco products knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(1) of the CUA (Abbas count 3); 4. between about 30 June 2015 and 11 August 2015, did conspire to import goods, being tobacco products, into Australia with the intention of defrauding the revenue, contrary to s 11.5(1) of the Criminal Code 1995 (Cth) (the Code) and s 233BABAD(1) of the CUA (Abbas count 4); 5. between about 10 April 2015 and about 29 September 2015, at Sydney in the State of New South Wales, conspired with Yehia Assi, Abbas Choukor, Ahmad Elzein, Mouhammed (aka Michael) Jomaa and divers others with the intention of dishonestly causing a loss of $4,876,920.00 to a third person, namely the Australian Border Force, which is a Commonwealth entity, contrary to s 135.4(3) of the Code (Abbas count 5).
2. The maximum penalties applicable to those offences are as follows: 1. Abbas counts 1, 2, 3 and 4 - 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA; 2. Abbas count 5 - 10 years imprisonment.
3. Abbas asked the sentencing judge to take into account a further offence when imposing a sentence in respect of Abbas count 1, namely an offence of dealing with money that Abbas intended would become an instrument of crime, contrary to s 400.4(1)(b)(ii) of the Code.
4. Abbas was sentenced as follows: 1. Abbas count 1 - 20 months imprisonment commencing on 26 August 2020 and expiring on 25 April 2021; [1] 2. Abbas count 2 - 24 months and 3 weeks imprisonment commencing on 26 November 2020 and expiring on 16 December 2022; 3. Abbas count 3 - 20 months imprisonment commencing on 26 March 2021 and expiring on 25 November 2023; [2] 4. Abbas count 4 - 14 months and 3 weeks imprisonment commencing on 26 August 2021 and expiring on 15 August 2022; 5. Abbas count 5 - 33 months imprisonment commencing on 26 February 2022 and expiring on 25 November 2024.
5. The total effective sentence was 4 years and 3 months imprisonment, commencing on 26 August 2020 and expiring on 25 November 2024.
6. The sentencing judge imposed a single non-parole period of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023.

Ahmad Elzein

1. Ahmad pleaded guilty to the following offences: 1. between about 19 November 2014 and 2 September 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Ahmad count 1); 2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Ahmad count 2); 3. between about 10 April 2015 and about 29 September 2015, at Sydney in the State of New South Wales, conspired with Yehia Assi, Abbas Choukor, Ahmad Elzein, Mouhammed (aka Michael) Jomaa and divers others, with the intention of dishonestly causing a loss of $4,876,920.00 to a third person, namely the Australian Border Force, which is a Commonwealth entity, contrary to s 135.4(3) of the Code (Ahmad count 3).
2. The maximum penalties applicable to those offences are as follows: 1. Ahmad counts 1 and 2 - 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA; 2. Ahmad count 3 - 10 years imprisonment
3. Ahmad asked the sentencing judge to take into account: 1. a further offence when imposing a sentence in respect of Ahmad count 1, namely an offence of dealing with money that Ahmad intended would become an instrument of crime, contrary s 400.4(1)(b)(ii) of the Code; and 2. a further offence when imposing a sentence in respect of Ahmad count 3, namely an offence of dealing with money that Ahmad intended would become an instrument of crime, contrary to s 400.4(1)(b)(ii) of the Code.
4. Ahmad was sentenced as follows: 1. Ahmad count 1 - 20 months imprisonment commencing on 26 August 2020 and expiring on 25 April 2021; [3] 2. Ahmad count 2 - 24 months and 3 weeks imprisonment commencing on 26 November 2020 and expiring on 16 December 2023; 3. Ahmad count 3 - 33 months imprisonment commencing on 26 June 2021 and expiring on 16 April 2024. [4]
5. The total effective sentence was 3 years and 5 months imprisonment, commencing on 26 August 2020 and expiring on 25 March 2024.
6. The sentencing judge imposed a single non-parole period of 2 years and 4 months imprisonment commencing on 26 August 2020 and expiring on 25 December 2022.

Bilal Doughan

1. Doughan pleaded guilty to the following offences: 1. between about 24 February 2015 and 17 March 2015, at Sydney in the of New South Wales, jointly committed an offence with Abbas Elzein, Jawad Elzein and unknown others by entering into an agreement to important tobacco products with intent to defraud the revenue, contrary to s 11.2A of the Code and s 233BABAD(1) of the CUA (Doughan count 1); and 2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, jointly committed an offence with Abbas Elzein, Ahmad Elzein, Abbas Choukor and unknown others by entering into an agreement to possess goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 11.2A of the Code and s 233BABAD(2) of the CUA (Doughan count 2).
2. Doughan asked the sentencing judge to take into account a further offence when imposing a sentence in respect of Doughan count 2, namely an offence of dealing with the proceeds of crime of a value of $100,000.00 or more, contrary to s 400.4(1)(b)(i) of the Code.
3. The maximum penalty for the offending in each of Doughan count 1 and Doughan count 2 is 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA.
4. Doughan was sentenced as follows: 1. Doughan count 1 - 19 months imprisonment commencing on 26 August 2020 and expiring on 25 March 2022; 2. Doughan count 2 - 27 months imprisonment commencing on 26 November 2020 and expiring on 25 December 2023, [5] partially suspended pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (the Act) with an order that Doughan be released on 25 April 2022 on the condition that he enter into a recognizance for a period of 10 months, expiring on 25 December 2023. [6]
5. Abbas, Ahmad and Doughan each seek leave to appeal against their respective sentences the grounds more fully discussed below.

Possessing goods knowing that they were imported with intent to defraud the revenue

Ahmad count 1

1. The sentencing judge found the facts of this offending to be as follows. [7]
2. In August 2014, the JWTF commenced an investigation into the activities of persons employed within the waterfront sector who were alleged to have facilitated the illicit importation of (inter alia) prohibited drugs and tobacco products into Australia. Pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW) a series of authorisations were issued in the course of the investigation which incorporated the involvement of an undercover officer (the UCO).
3. Ahmad was the owner/operator of the Elzein Supermarket (the supermarket) at Arncliffe. He was assisted in the conduct of that business by members of his family, including Abbas who is one of his children. Hussein Kadouh (Kadouh) was an acquaintance of Ahmad and Abbas.
4. On 14 October 2014 Kadouh met with the UCO, at which time the UCO said that he was engaged in the business of smuggling cigarettes into Australia and that he could give Kadouh a sample of what was available. At a subsequent meeting on 6 November 2014, the UCO gave Kadouh 30 packets of "Dunhill Lights (Red Label)" cigarettes, containing a total of 600 sticks. Kadouh then gave samples of the cigarettes to a number of small businesses, including the supermarket operated by Ahmad.
5. On 19 November 2014 Kadouh introduced the UCO to Abbas and Ahmad, following which the UCO supplied them with 4,970 packets (99,400 sticks) of cigarettes. Both Abbas and Ahmad knew that the cigarettes had been smuggled into Australia without the applicable customs duty being paid.
6. Following that initial supply, the UCO established a relationship with Ahmad and Abbas, pursuant to which he sold them smuggled cigarettes and tobacco on an ongoing basis. The individual quantities supplied which were referable to Abbas count 1 and Ahmad count 1 were as follows: [8] Date of supply Amount paid Product Notional duty avoided 19 November 2014 $22,000.00 99,400 sticks of tobacco (4,970 packets of mixed Dunhill Lights and Win King Size) $45,990.39 27 November 2014 $50,000.00 200,000 sticks of tobacco (10,000 packets of Davidoff Classic cigarettes) $92,536.00 9 December 2014 $63,200.00 250,000 sticks of tobacco (12,500 packets of mixed cigarettes being Davidoff Classic, Dunhill Lights and Marlboro Red) $115,670.00 27 February 2015 $8,000.00 104kgs of mixed flavoured Al Fakher Molasses tobacco $60,150.48 8 April 2015 $12,000.00 40,000 sticks of tobacco (2,000 packets of Davidoff Classic cigarettes) $18,803.20 15 April 2015 $3,000.00 10,000 sticks of tobacco (500 packets of Davidoff Classic cigarettes) $4,700.80 21 April 2015 $200.00 4kgs of Nakhla Molasses tobacco $2,350.48 27 April 2015 $6,000.00 20,000 sticks of tobacco (1,000 packets of Davidoff Classic cigarettes) $9,401.60 15 May 2015 $18,000.00 60,000 sticks of tobacco (3,000 packets of mixed cigarettes) $28,204.80 28 May 2015 $119,900.00 280,000 sticks of tobacco (14,000 packets of mixed cigarettes) $131,622.40 3 June 2015 $15,000.00 50,000 sticks of tobacco (2,500 packets of mixed cigarettes) $23,504.00 2 September 2015 $36,730.00 92,200 sticks of tobacco (4,610 packets of mixed cigarettes) $48,874.85 TOTAL $354,030.00 1,101,600 sticks of tobacco or 55,080 packets of cigarettes or 108kgs of tobacco $581,809.00

1. The duty avoided was notional rather than actual because the revenue had already been defrauded of that sum by the person(s) who had smuggled the cigarettes into Australia in the first instance.
2. The total amount of $354,030.00 which was paid for the cigarettes was the basis of the respective additional matters that Abbas and Ahmad asked be taken into account when being sentenced for this offending.

Possessing goods knowing that they were imported with intent to defraud the revenue

Doughan count 2

1. The sentencing judge found the facts of this offending to be as follows. [9]
2. On 3 June 2015 the UCO met with Abbas. He told Abbas that he had run out of cigarettes and that he would try to obtain some molasses tobacco which could be supplied. On 11 June the UCO and Abbas met at the supermarket, at which time the UCO said that he was working on the tobacco supply. He asked Abbas to be patient, saying: That's going to be very beneficial for both of us but it's just going to take a little time. Just trust me. If I can get it, it's going to be good.
3. There followed various conversations between Dougan, Abbas, and Abbas Choukor (Choukor) about the cost of the tobacco, and the possibility of obtaining some samples of it.
4. At 1:21pm on 23 June Doughan telephoned Abbas, who said that the UCO had four tonnes of tobacco available at a price of $100.00 per kilogram. Abbas said that the expiry date for the tobacco was August 2015 and expressed the view that it was not worth it. Doughan suggested that he ask for a price of $80.00 per kilogram.
5. At 8:03pm on 24 June Abbas telephoned Choukor who asked to see the tobacco. About 8:46pm Abbas telephoned Doughan who asked Abbas if he had the samples. Abbas told him that he did not.
6. At 2:24pm on 25 June Abbas telephoned Choukor who asked if the samples were available. Abbas told him that they were not.
7. At 3:54pm Abbas telephoned the UCO who confirmed that the samples were available. Abbas told the UCO that he had a "guy" who was willing to take them all, but who preferred certain flavours such as "Two Apples" (seemingly because that flavour was more popular). The UCO responded by saying that he would only sell the tobacco as one whole lot, and would otherwise sell it to another buyer.
8. At 4:02pm Abbas telephoned Doughan and informed him that that the UCO had said that he would not sell the flavours separately. Doughan said: We will take all of them.
9. At 7:13pm Abbas telephoned the UCO and they discussed the supply of the samples.
10. At 12:21pm on 26 June Abbas telephoned the UCO and asked if he would agree to supply the tobacco in four separate lots, telling the UCO that he had: … a guy that wants to take a bit of stuff to Perth.
11. The UCO responded that he wanted to sell the tobacco as a whole. When Abbas asked again if he could take delivery in four lots, each of one tonne, the UCO said that he would think about it and let him know.
12. Abbas and the UCO spoke again at 2:47pm. When Abbas again asked whether the four tonnes could be separated into one tonne lots, the UCO responded that this would be too difficult, and too much work for him. He also told Abbas that he would only deliver samples of the tobacco when he received the "paperwork" in relation to the discussions which were then taking place in relation to the offence in Abbas count 5. Abbas explained that he was not "hassling" the UCO about delivering the tobacco and said: Because the guy that I'm gonna offload, trying to offload the four pallets to, he's been harassing me, I'm not gonna take 'em for me, I don't need 'em, he's been harassing me… My dad doesn't care about the molasses and the other guy just wants to know the breakdown of the molasses.
13. At 4:05pm the UCO sent Abbas a message regarding the tobacco which was available for supply: They are in 6kg boxes. 209 boxes of Two Apples, 1254kg; 125 boxes of grape, 750kg; 125 boxes of mint, 750kg; 83 boxes of mint grape, 498kg; 42 boxes of energy, 252kg; 42 boxes of bubble-gum, 252kg; and 41 boxes of lemon, 246kg.
14. Abbas forwarded that message to Doughan at 4.45pm, and to Choukor at 8.32pm. Within a minute of receiving the message, Choukor telephoned Abbas who told him that the UCO wanted to sell the entirety of the tobacco in one lot. Abbas said that many of the flavours were "shit", and that he would try to organise to take only the apple flavour, a proposal to which Choukor agreed. Choukor also observed that the tobacco had a "very short date".
15. At 1:43pm on 27 June Abbas telephoned Doughan who said: Abbas Choukor and I are taking them together.
16. Doughan suggested offering $5.00 per kilogram less (i.e. a price of $95.00 per kilogram). Abbas responded that he did not think it was feasible to negotiate a new price, and told Doughan that he was not making any money on the transaction, an assertion which the sentencing judge found was false.
17. In a subsequent conversation at 6:14pm, Choukor told Abbas that he (i.e. Choukor) and Doughan would take the entirety of the tobacco, subject to an agreement being reached as to the price. Choukor asked Abbas to organise a sample box of each flavour. Abbas said he would do so, but also said that he thought that the less popular flavours were not worth the asking price because of the potential difficulty in selling them.
18. At 10:59am on 29 June Choukor telephoned Abbas who said that he had not received the samples. Choukor commented that this was "no good" because they would shortly become out of date and suggested taking delivery of the tobacco in two separate lots.
19. At 3:30pm Choukor telephoned Abbas who said that the UCO would be bringing the samples the next day.
20. At 10.00am on 30 June the UCO met Abbas at the supermarket and provided a sample box of each flavour of tobacco. When Abbas queried why the product had such a close expiry date of August, the UCO said: It's no good me hanging onto them until you get the money. So I'm happy to bring it to you, you get rid of it and then you pay me. Do you understand the amount of trust that I'm going to give you?
21. It was then agreed that Abbas would pay the UCO when he received the money from the others (i.e. Doughan and Choukor). The UCO said that he was willing to provide the tobacco on credit and Abbas confirmed that another guy named Abbas (a reference to Choukor) was going to take the tobacco, but wanted to look at the samples first. The UCO refused to accept less than $100.00 per kilo, but indicated that he may be prepared to reduce the price in light of the fact that some of the flavours were not very attractive for sale. Abbas said: I told him whatever you told me. I promised the guy I'm not gonna make nothing out of it.
22. At 12:07pm Abbas telephoned Choukor and told him that he had the samples. Choukor said he would meet with Abbas shortly.
23. At 12:16pm the UCO telephoned Abbas and said that he would reduce the price of the tobacco to $375,000.00 on the basis that the entirety of it was sold in one lot. When Abbas said that he would "tell him (i.e. Choukor) $375", the UCO offered Abbas a commission of $5,000.00. Abbas asked for $10,000.00, in response to which the UCO told him that if the entire consignment could be sold for $385,000.00, he (Abbas) could retain $10,000.00, making his total commission $15,000.00.
24. At 12:21pm, Choukor telephoned Abbas and asked whether the UCO would be prepared to sell the tobacco in two or three lots. Abbas suggested that Choukor take the entirety of the tobacco in one lot, that he pay half the cost initially, and that he pay the balance in two or three weeks. Choukor said that he would let Abbas know if that was suitable.
25. At 4:19pm Abbas telephoned Doughan who raised concerns about some of the flavours, and said that they should get a further discount. Abbas told Doughan that this had already been attempted. They discussed taking delivery of the tobacco in two days' time.
26. At 11:11am on 1 July Abbas telephoned Choukor who said that he was not keen on taking the tobacco because it included a number of flavours that would be difficult to sell. Abbas agreed, saying: I reckon don't take them, don't take them, that's what I reckon.
27. Choukor also referred to the fact that there was only two months left before the expiry date. He said that he would get back to Abbas.
28. Abbas telephoned Choukor again at 12:15pm. Choukor asked if he was able to buy only the apple flavour for $110.00 per kilogram, telling Abbas that he had a purchaser for the entirety of it. Choukor directed Abbas not to tell Doughan anything, and that it was just between "you and me". Abbas said: I will call the man now.
29. Abbas and Choukor spoke again at 11:12am the next day, 2 July, when Choukor asked Abbas to check if "he" (i.e. the UCO) could reduce the price of some of the flavours. No specific reduction was mentioned. Choukor said that he would bring Abbas the deposit later that day.
30. At 11:53am Abbas telephoned the UCO and said that "they" wanted the entirety of the tobacco for $320,000.00. In the absence of any evidence to suggest that Choukor had suggested that price, the sentencing judge found that in making that offer Abbas was attempting to make a profit. In any event, the UCO refused, and said that $375,000.00 was his lowest price.
31. Abbas telephoned the UCO at 3:38pm, and said: All he wants is the Two Apples.
32. The UCO then offered to sell the entirety of the tobacco for $350,000.00, and told Abbas if that if this was not accepted, there was a person in Queensland who would buy it. Abbas said: I'm not making nothing bro, I'm not even making a dollar, I've worked all this not making, you know what I mean.
33. At 3:44pm Abbas telephoned Doughan who agreed to pay $380,000.00 for the entirety of the tobacco. Abbas said: I'm not making anything. I have to make something like something small, I swear to God, I'm not making anything I swear to God.
34. At 4:09pm Abbas telephoned Choukor who agreed to take the tobacco and said: As Bilal told you get him to fix something in relation to the price.
35. When Abbas told Choukor that he had already tried to do so, Choukor agreed to take the tobacco for $380,000.00. Choukor told Abbas: Tell him we pay half and four weeks half, or after three weeks.
36. In a further conversation at 4:15pm between Abbas and Choukor it was confirmed that Choukor and Doughan would take the entire consignment of tobacco for $380,000.00.
37. At 4:16pm Abbas and Ahmad telephoned the UCO and offered to purchase the tobacco for $340,000.00. The UCO agreed to a price of $345,000.00, with $180,000.00 to be paid in advance, and the balance in 3 to 4 weeks.
38. At 3:44pm the following day, 3 July, Abbas telephoned Doughan and they confirmed that the purchase was to go ahead.
39. Abbas then telephoned the UCO at 4:28pm and said: My people don't want it no more. They don't want the molasses no more.
40. The UCO responded by saying that he would "take it to Queensland". At 6:03pm the following exchange of messages took place between Abbas and the UCO: UCO: okay your buyer def out? ABBAS: 110%
41. However, at 11:55am on the following day, 4 July, Abbas telephoned the UCO and asked him if the tobacco could be delivered that day as he (Abbas) had another buyer for it (which was obviously untrue, given that the confirmed buyers were Choukor and Doughan). The UCO said he would deliver it on the following Monday (6 July) in two truckloads. In a conversation at 12:04pm, Choukor agreed with Abbas to take delivery on that day.
42. At 12:59pm Abbas telephoned the UCO and they discussed arrangements for the delivery of the tobacco. Doughan telephoned Abbas at 8:44pm and they also discussed those arrangements.
43. At 12:02pm on 5 July the UCO telephoned Abbas and they had a further discussion regarding the arrangements for the delivery of the tobacco. At about 6:00pm Abbas and Ahmad met the UCO and in the course of that discussion the price of $345,000.00 was confirmed. There were further discussions regarding the timing of the delivery which was proposed for the following day.
44. At 8:45pm Abbas telephoned Doughan and they discussed the delivery arrangements. Doughan said that he would meet Abbas at Choukor's warehouse.
45. In all of these conversations, Choukor, Doughan and Abbas referred to the UCO as either "the male" or "the man" in an effort to avoid detection.
46. At 11:00am on 6 July the UCO drove a truck containing part of the consignment of tobacco to Arncliffe where he was met by Ahmad, who took him to his home to await the truck being unloaded. At 11:14am Abbas telephoned the UCO and asked him if he knew how many boxes were in the truck. The UCO told him that there were 410.
47. Choukor took the truck and drove it to Pendle Hill where he met Doughan, following which they unloaded the tobacco and put it in a residential garage. The sentencing judge rejected a submission advanced on behalf of Doughan that in assisting Choukor in that regard, he (Doughan) was doing no more than acting as an agent for someone else.
48. At 2:53pm Abbas telephoned the UCO at which time they discussed the delivery of the second truckload of tobacco. It was agreed that Abbas would take 15 boxes from that load for himself, on the basis that he was not going to make any money from the venture. The sentencing judge found that this was not correct, as Abbas was in fact going to receive a commission.
49. The UCO then took possession of the (now empty) truck. At about 3.45pm he telephoned Abbas and asked: How many boxes did you say your buddies reckon there was?
50. Abbas responded by saying that there were 383 boxes, in circumstances where there had actually been 410, all of which had been unloaded by Choukor and Doughan. The UCO responded: Mate, they've fuckin' robbed ya.
51. At 4:36pm Abbas telephoned Choukor and told him of his conversation with the UCO. Choukor responded: No I swear to God 383.
52. There were a number of subsequent conversations between Abbas and the UCO regarding the missing boxes of tobacco.
53. At 5:13pm the UCO spoke with Abbas and said that because a number of boxes were missing, the cost would be adjusted. At 6:00pm the UCO returned in the truck, which was carrying a further 257 boxes of tobacco, each weighing 6kg. Abbas took 15 boxes for sale in the supermarket, and the remaining 242 boxes were unloaded in the garage of the supermarket for Choukor and Doughan to collect. Abbas spoke with Choukor at 6:11pm who said he would collect the tobacco in an hour or so.
54. At 7:20pm Doughan telephoned Abbas and they discussed the missing boxes of tobacco. Doughan was reluctant to collect the boxes that evening and it was agreed that he and Choukor would collect them the following day, Doughan said: You tell Abbas (Choukor) - 'I was speaking to Bilal and we said leave it till tomorrow'.
55. Choukor and Doughan subsequently collected the 242 boxes of tobacco.
56. On 9 July, and again on 14 July, the UCO asked Abbas about the sale of the tobacco. Abbas responded: It's going all right, it's going all right …. yeah, the guy took them all.
57. In total, 3,846kg of tobacco was supplied by the UCO on which excise duty of $2,259,986.52 was payable.
58. A total of $332,000.00 was paid to the UCO for the tobacco in the following instalments: 1. $160,000.00 paid in cash by Ahmad on 7 July 2015; 2. $55,000.00 paid in cash by Ahmad and Abbas on 17 July 2015; 3. $87,000.00 paid in cash by Ahmad on 30 July 2015; and 4. $30,000.00 paid in cash by Ahmad on 6 August 2015.
59. Abbas was present at the time of the payment of the money on 6 August 2015 and told the UCO that he had already sold the boxes of tobacco that he had obtained from the UCO and asked for more. Referring to Choukor and Doughan, Abbas said: That guy that took them all, all he's got left is the shit flavours.
60. The $332,000.00 which was paid to the UCO was the amount referred to in the additional matter that Doughan asked the sentencing judge to take into account when sentencing him for this offending.
61. The sentencing judge made reference [10] to having taken into account additional matters attaching to this offence in respect of Abbas and Ahmad. That reference was not correct. Abbas did not ask the sentencing judge to take into account any additional matter when sentencing him for this offence. The only additional matter that Abbas asked be taken into account attached to Abbas count 1. [11] Similarly, although Ahmad had asked that two additional matters be taken into account, those additional matters attached to Ahmad count 1 and Ahmad count 3 respectively, [12] and not to this offending.
62. In apparently taking these additional matters into account when sentencing Ahmad and Abbas for this offence, the sentencing judge erred. However, such errors were not relied upon, by either Abbas or Ahmad, in their respective applications for leave to appeal against sentence. In any event, and for the reasons set out below, I have come to the view that there is a further error which necessitates each of Abbas and Ahmad being re-sentenced.

Doughan count 1

1. The sentencing judge found the facts of this offending to be as follows. [13]
2. In about February 2015, an order was placed for 228 boxes, each weighing 250g, of "Nakhla" brand tobacco to be shipped to Australia from Doha, Qatar. An airway bill dated 23 February 2015 falsely described the consignment as "personal effects", and nominated the consignee as "Ali Ibrahim". The telephone contact number provided was a telephone service used by Abbas. The consignment departed Doha on 24 February and arrived in Sydney on 26 February where it was processed by Toll Dnata (Toll), a cargo and logistics company.
3. At 3:46pm on 27 February Abbas spoke with Doughan in the course of which they discussed the consignment. Abbas said to Doughan: You give me the green light to try a different broker, huh? Doughan replied: Yeah.
4. Abbas and Doughan spoke again at 10:43am on 2 March, at which time Abbas agreed to collect the consignment. In a series of calls later that day, Abbas made enquiries with a number of courier companies about collecting the consignment from Toll. In the course of those calls Abbas described the contents of the consignment as "curtains", a term which he had used in conversations with Doughan to refer to the tobacco.
5. At 2:05pm, authorities attended Toll and examined the consignment, which was found to contain the 228 boxes of tobacco. The tobacco was removed from the boxes and retained by the authorities before being substituted with paper, following which it was returned to Toll for delivery.
6. At 3:45pm Abbas telephoned Toll and asked what time the business closed for the day. Abbas' brother Jawad Elzein (Jawad), and his friend Abbas Dufar (Dufar), later attended Toll and took delivery of the boxes. Jawad telephoned Abbas to tell him that he was on his way back, following which they opened the boxes and found them to contain paper.
7. Abbas spoke with Doughan at 6:13pm and told him that the boxes were full of paper. Doughan asked Abbas: What happened to the weight under which they were shipped?
8. Abbas repeatedly told Doughan that the boxes contained paper weighing about 20kg or 30kg. Doughan said: Don't touch it, don't touch it. Abbas replied: Okay, okay.
9. Doughan was obviously aware that the consignment should have contained tobacco.
10. At 6:21pm Abbas again spoke to Doughan and said that the consignment was full of paper. He told Doughan that Jawad had taken a picture and would send it to him.
11. At 7:27pm Abbas again spoke with Doughan, who reminded Abbas that he had said that he was going to send a picture of the consignment. Abbas again said that Jawad would take a picture and send it. Doughan and Abbas arranged to meet at 12 noon the following day, Doughan being concerned to verify what had been contained in the consignment.
12. At 3:47pm on 3 March Doughan and Abbas spoke again and discussed who had gone to Toll to collect the consignment. Abbas said: My brother Jawad went down with him.
13. At 12:32pm on 4 March Doughan and Abbas spoke again. Doughan explained that he had previously telephoned Abbas "to send me the photo that your brother has in the van just to clear myself".
14. Between 16 March and 20 March employees of Toll made attempts to contact Abbas about the consignment. Various messages left for "Ali" to call Toll were not returned by Abbas.
15. The 57kg of tobacco which was imported and seized attracted excise duty of $32,967.09.

Conspiracy to import goods with intent to defraud the revenue

Abbas count 4

1. In summary, the Crown case in respect of this offending was that between 30 June and 11 August 2015, Abbas, Mohammed Chahine (Chahine), Yehia Assi (Assi) and Mohammed Mourtada (Mourtada) conspired to import 15 boxes of cigarettes containing 7,500 packets (150,000 sticks) of cigarettes into Australia with the intention of defrauding the revenue. The sentencing judge found the facts of this offending (referred to as the "Oporto conspiracy") to be as follows. [14]
2. On 30 June Abbas spoke with Assi and they arranged to meet the following day at the Oporto restaurant in Bexley. There followed numerous conversations between Abbas, Chahine and Mourtada in which they arranged to meet at the same place at that time.
3. On the following day, 1 July, all four persons met and discussed a plan to smuggle tobacco into Australia. One of the principal reasons for the meeting was to enable Abbas to introduce Assi to Chahine and Mourtada. Assi worked at Hellas Pty Ltd (Hellas), a freight forwarding company, and the discussions at the meeting included how Assi might be able to facilitate the importation without any scrutiny by the authorities.
4. The conspirators had a supplier of tobacco who was located in China who had provided Abbas with a number of options for the importation. Abbas arranged a meeting to take place with an associate of that supplier on 8 July and invited Chahine to attend, who in turn invited Mourtada. At the meeting, Abbas said that Chahine was looking to import three boxes for the price that they (i.e. Abbas and the supplier's associate) had previously discussed.
5. Between 24 July and 31 July Chahine and Mourtada made multiple telephone calls, and sent multiple messages, to Abbas, regarding options for the smuggling of the tobacco. Both Chahine and Mourtada became concerned and agitated about the length of time that Abbas was taking to provide those options, and his failure to respond to their communications. The fact was that Abbas was in the process of discussing the options with Assi, having met with him for that purpose on 23 July and 29 July.
6. On 1 August 2015 Abbas sent two messages to Mourtada providing options for smuggling cigarettes and tobacco into Australia, Abbas having settled on those options in the course of his previous discussions with Assi. Abbas also communicated these options to Chahine, all of which involved Assi handling the importation through Hellas. The first of the two messages, sent by Abbas at 10:41am on 1 August, was in the following terms: Okay first option is we buy the stock from there and send it to his office and he will take $10 per kilo for shipping and 500 for his work.
7. The second, sent at 10:45am on the same day, was in the following terms: Another option he will get us cigs box for 200 per box and then we pay shipping $10 per kilo and 500, other option is Fakher, he told her he could get bulk at $150 per box plus shipping and $500.
8. The various references in the messages to "his office", "he" and "his" were references to Assi who, as I have noted, worked at Hellas.
9. At 12:57pm Chahine and Mourtada spoke about the messages they had received from Abbas. When Mourtada asked Chahine about what option they should take, Chahine said that they could talk about it when they saw each other.
10. When they spoke at 2:12pm, Chahine told Mourtada about some calculations that he had done, and suggested that they import 15 boxes containing a total of 750 cartons. Chahine said that Abbas had told him that he would buy each carton for $70.00, a total payment of $52,500.00, meaning that after expenses they would make a total of $45,000.00, or $22,500.00 each. The sentencing judge found that this conversation demonstrated that Chahine and Mourtada did not intend to pay excise duty on the tobacco to be imported. Specifically, his Honour found that the profit discussed by Chahine and Mourtada demonstrated that they had failed to take the applicable excise duty of $70,515.00 into account, and that had they done so, they would have suffered a loss of $25,515.00, rather than making a profit of $45,000.00.
11. On 5 August Mourtada spoke with Chahine about a proposed move by Hellas to a different business address. Chahine stated that he had spoken to his "mate", who spoke to the "guy here", who said that he could "clear it", which the sentencing judge inferred was a reference to the fact that Assi had said that he would be able to clear the smuggled tobacco, but that if they wanted to do a "under bond" move they would have to wait two weeks until the issue of a new licence to Hellas.
12. On 7 September 2015 Hellas was granted a depot licence for its then business address at Wolli Creek. The licence related to goods arriving in, or departing from, Australia by sea or air, and set out a number of conditions, including that: 1. goods subject to control by the Australia Customs Service (Customs) could not be moved without permission; and 2. Hellas was required to obtain approval from Customs to change its business address.
13. There were also conditions relating to: 1. the storage of goods subject to Customs control within the depot; 2. Customs access for the purposes of conducting compliance checks; and 3. the physical security of the depot.
14. On 10 August Hellas lodged an application with Customs to move its premises from Wolli Creek to Moorebank. On 11 August Mourtada discussed this move with Abbas who said that "he" (Assi) could "clear it but if something happens he can't move it". The sentencing judge interpreted this as a reference to the fact that Assi could clear the smuggled cigarettes, but that if something happened he (Assi) would not be able to move it because he did not yet have a depot licence for Hellas' new address. Abbas told Mourtada: He's moved warehouses, he just needs the approval from C
15. The sentencing judge interpreted the reference to "C" as being a reference to Customs.
16. In the same conversation with Mourtada, Abbas said: They've got to come and inspect his warehouse.
17. Abbas and Mourtada decided that they would wait until Hellas' new business address was approved before smuggling the cigarettes.
18. On 21 September Customs granted Hellas approval to operate from their new premises pursuant to the depot licence which had been issued on 7 September.
19. At the time of their arrest in late September 2015, the conspirators were engaged in an advanced plan to smuggle 750 cartons of cigarettes into Australia. The essence of the plan was that Chahine and Mourtada would fund the importation, Abbas would provide assistance and then purchase the cigarettes, and Assi would provide freight forwarding and other services through Hellas, and would facilitate the release of the cigarettes without attracting the attention of the authorities.
20. The amount of duty payable was $70,515.00. However, in light of the fact that the planned importation had not actually been effected, there was no actual loss to the revenue.

Conspiracy to dishonestly cause a loss to a Commonwealth entity

Ahmad count 3

1. The sentencing judge found the facts of this offending (referred to as the "Dubai conspiracy") to be as follows. [15]
2. On 8 April Abbas and Ahmad met with the UCO who outlined a plan to import two containers containing approximately $2 million worth of cigarettes. He said that he needed a broker to "land" them and told Abbas that if he (Abbas) could provide someone to perform that role, he (Abbas) could have "first bite of the lot". The UCO explained that he needed the broker to ensure that the containers "didn't get flagged", a reference to the necessity to ensure that the consignment was not overseen by Customs so that the payment of excise duty could be avoided. The UCO told Ahmad and Abbas that he would sell them the cigarettes for $5.00 per packet. In response, Abbas said: I've got a guy, two guys actually, who could assist with the importation.… It might cost us a bit.
3. The UCO indicated that he was happy to pay, following which there were discussions about meeting up with other persons. Abbas said that he wanted to "take a cut" when the cigarettes arrived.
4. Abbas subsequently introduced the UCO to Assi, Mouhammed Jomaa (Jomaa) and Rahma Zein (Zein). Zein was a cousin of Abbas and was an import supervisor at Capital Distribution Services (Capital), a freight forwarder with headquarters in Hong Kong. Jomaa was employed by Qube Logistics, a provider of import and export services. All of them agreed to use their knowledge, experience, and employment in the waterfront industry, to facilitate and monitor the importation, and to warn of possible law enforcement interest. In that sense, whilst the agreement was one to illegally import cigarettes, it also encompassed what the sentencing judge described as "the corruption of Customs procedures designed to protect the revenue".
5. On 15 April Abbas met the UCO and they discussed the importation, and the purchase of the cigarettes by Abbas and Ahmad. The UCO indicated that with the assistance of the broker, he would bring the cigarettes to Abbas. Abbas said: And we'll buy the ciggies off you straight away.
6. Abbas told the UCO that because Assi worked in the international freight forwarding business, and because Jomaa was a broker, both would be able to help with the importation. He also said that Assi had advised him that the containers should be described as "furniture", and should pass through the warehouse where he (Assi) worked, in order to avoid X-ray detection and thus payment of excise duty. There was a further discussion about Jomaa monitoring the container and being paid $50,000.00 for his services.
7. On 21 April Abbas and the UCO met again and they had a further discussion about the proposed importation. Abbas told the UCO that he and Ahmad would take one container one week and the second container the following week, as they could not afford to pay the UCO in advance for all of the cigarettes. Because two containers were to be imported using two separate brokers, the UCO offered a sum of $40,000.00 to be payable to each broker, with an initial deposit of $20,000.00 and the balance becoming payable on arrival of the containers. When Abbas enquired as to what would happen if the container was not cleared, the UCO advised that this was "his risk" and that in that event, the two brokers would keep the money. Abbas then said: 'Cause I'm not making nothing out of it, I promise to God I'm not, not even a dollar, I'm not even making out of it, these cigarettes come make my money then.
8. At that meeting Abbas described Jomaa (to whom he referred in conversations with the UCO as "Shifty") as being "experienced". Abbas also told the UCO that Jomaa had stated that he was reluctant to meet him (i.e. the UCO) in person in case he was a police officer.
9. The UCO gave Abbas the name of two companies that could be named as consignees for the containers, and said that both companies had clean import histories. The first company was "American Golf Supplies" which was a sporting goods company, and the second was "Dietrich Family Trust", which purportedly imported waterproofing materials. It was proposed that the contents of each container would be falsely described in the shipping documentation as "golf bags" and "waterproofing materials" respectively.
10. At the same meeting, Abbas told the UCO that Jomaa had recommended that the containers not be loaded in Vietnam because items exported from that country were subject to X-ray. The UCO told Abbas that he would write down the details of each company and said that he wanted to give those details to the brokers in person. Abbas also indicated that he would prefer the UCO to meet them, saying: So like I'm at the back I've got nothing to do with it. You're the buyer. You're the buyer that's getting it.
11. Following that meeting, the UCO sent a text message to Abbas in the following terms: Two companies, Dietrich Family Trust (chemical waterproofing, rubber imports) American Gold [sic] Supplies (golf equipment and sporting goods). Both are good companies. Cheers. Talk soon.
12. The UCO sent further information to Abbas, namely that each shipping container would contain 230,000 cartons of cigarettes, and suggested that Abbas would be able to sell them for $8.00 per packet. Abbas said that the sale price would depend upon the brands in question.
13. On 27 April Abbas met the UCO and introduced him to Zein. They discussed the importation and Zein said that she would be willing to oversee one of the containers. She said that she would need an ABN (Australian Business Number) and an authority from the UCO to Capital to handle the importation. She told the UCO to ensure that there was no wood packaging in the container, and that he would need to create an email account and a phone number for each company. She said that she would monitor the importation, provide updates of movements of the container, and confirm any law enforcement interest. She said that if something went wrong: I don't know you, you don't know me….I've never seen you, you've never seen me.
14. On the same day Abbas telephoned Jomaa and tried to arrange a meeting with the UCO that evening. Jomaa declined to take part. Abbas suggested that he and the UCO telephone Jomaa to which Jomaa responded: No better you know ask me over the phone.
15. The following day, 28 April, Jomaa again declined to meet Abbas and the UCO, telling Abbas: No I'd rather not…… get whatever information you can.
16. At 4:38pm on 28 April Jomaa telephoned Abbas. They discussed the importation of the containers, using "soccer balls" as code for payment, and "coach" as code for the UCO. Jomaa told Abbas to "forget about (him) meeting up with (the UCO)". He said that he did not trust "the other guy" and told Abbas "don't mention me to him by name," asking Abbas to refer to him as "the Greek guy" when speaking to the UCO.
17. On 29 April Abbas telephoned the UCO and, in respect of Jomaa, said: (He) says he'll do it but he doesn't want to meet up.… If you want Shifty to do it he'll do it but like he doesn't want to get his hands dirty, you know what I mean? … And yesterday he goes to me 'and make sure you tell him I'm not Lebo I'm Greek'.
18. On 3 May 2015 Abbas telephoned Jomaa and, in reference to the UCO, said: Hey my Italian mate, we're gonna help him out? Jomaa replied: Yeah, yeah, yeah perfect, perfect, yeah no worries. When I collect those goods we'll talk.
19. On 15 May Abbas met the UCO. During the course of the meeting, Abbas telephoned Jomaa and placed the call on loudspeaker. Using code in part of the conversation, Jomaa told the UCO that he would look after "everything" in relation to the importation and said that he wanted "8 boxes or 100 boxes" (which was code for $80,000.00 or $100,000.00) in return for his assistance. He eventually agreed to accept "8 boxes", half at the start and half on completion. Abbas confirmed in the course of the meeting that he would purchase both containers of cigarettes.
20. Following that call, the UCO and Abbas discussed the fact that Jomaa was raising his price. They agreed to pay Jomaa $20,000.00 in advance. When the UCO asked whether the payment could be made in the form of prohibited drugs instead, Abbas replied: We're just cash, that's all we deal with.
21. On 28 May Ahmad met with the UCO and they spoke about the importation. The UCO told them to choose from a selection of "Manchester" cigarette products and to provide him with a list by Tuesday. Abbas said: There are plenty of Manchesters in the market.
22. The UCO advised that one container was definitely Manchester brand and that he would enquire about including Dunhill and Davidoff products in the other. Ahmad said that he would prefer those brands. The UCO confirmed that it would cost Abbas and Ahmad $1.25 million to purchase each container. Attempts by Ahmad to negotiate a price of $1 million per container were rejected by the UCO. In a further reference to prohibited drugs, the UCO said that he could either accept $1.25 million or: ….take that out in the other product. Abbas replied: We don't want anything to do with the other product.
23. On 3 June 2015 the UCO met with Abbas and Ahmad, and said: There's only Manchesters available.
24. Abbas then asked that the first container carry Manchester Light Blue cigarettes, and that the second carry half Manchester Red cigarettes, and half Manchester Ultra Light cigarettes. The UCO said: 100%. They're coming from Dubai so they are the real deal. The big dollars are when we get those two containers here.
25. The UCO provided Abbas with instructions about the invoices and shipping documents to give to Zein as she had forgotten to come to the meeting. When Abbas suggested that one container should go to Brisbane just in case, the UCO said that he was confident that there would be "no drama" and that it would be his fault if anything happened.
26. On 4 June Abbas met the UCO and said that Hellas was in the process of moving to Moorebank and that the new premises would have a quarantine area. Assi then arrived, and Abbas introduced him to the UCO. They discussed the importation of the containers. Assi told the UCO: We're going to be the brokers now looking after everything for the importation of one of the containers.… Because the brokers have changed, like maybe it's going to X-ray.
27. Assi said that he would create the false documents required for the importation, and upload them to the Integrated Cargo System (ICS) and would charge $40,000.00 for his services. The UCO then handed Assi a USB stick containing details of the Dietrich Family Trust which was to be the consignee of one of the containers, and told Assi that it was a container of cigarettes coming from Dubai via Singapore. Assi confirmed that the contents of the container would be falsely described as waterproofing materials, and said he would create the packing list and packing declaration, and would upload the bill of lading into the ICS. Assi asked the UCO if he trusted his people in Singapore and Dubai, and the UCO said that he did. Assi also said that he wanted any further communication with the UCO to take place through Abbas.
28. The UCO handed a second USB stick to Abbas who agreed to give it to Zein. That USB contained the details of American Golf Supplies which was to be named as the consignee of the other container. The UCO confirmed that he was going to go to Singapore and if there were any additional charges, he would cover them.
29. On 11 June Ahmad met the UCO at his (Ahmad's) home, having spoken with Choukor. Ahmad described Choukor to the UCO as "the other man" and said that he had connections in Dubai who could supply any brand of cigarettes cheaply. Ahmad said that Choukor was going to call the UCO as he had been unable to come that day because of a family problem.
30. Ahmad and the UCO then commenced to discuss the importation of the containers. When Abbas joined the conversation, the UCO complained that Jomaa had not been in contact with him, and that he (i.e. UCO) had more material to give him. Abbas mentioned that Zein had the UCO's letter of authority but that she did not need "the other stuff" until a week before the shipping container arrived. The UCO then said that Jomaa needed to know what was going to be in the container. He then handed Abbas two written documents which (falsely) described the product type, amount, price and size of the material contained in the second container. These details were intended to assist in the preparation of the shipping documents. The UCO told Abbas that he had spent all of his money on the purchase of the Manchester cigarettes and wanted the paperwork to be completed. Abbas said that he would contact Jomaa later that day, and told the UCO that he would give a copy of the documents to Zein so that she could complete her paperwork.
31. Abbas then called Assi to clarify various shipping details with him, including the falsified description of the contents provided by the UCO as "Aquagard M Charcoal". Assi told Abbas that he would complete the paperwork and give it to him.
32. On 18 June Abbas met the UCO and they discussed the fact that the containers were due to arrive in six weeks. The UCO asked about the paperwork that he had provided and Abbas said that it was coming and would be completed soon.
33. On 30 June Abbas met with the UCO and said that Zein no longer wanted to be involved. Abbas asked if it would be in order for Jomaa to oversee the second container, and confirmed that Assi was still willing to oversee the first. Abbas suggested that Jomaa was the best person to assist them, saying: That guy is the shiftiest of the shifty.
34. The UCO said that he needed to meet "Ahmad's friend" (i.e. Choukor) before arranging the next container. Abbas replied: My dad's … Abbas is going to take these, he wants to look at them, right.
35. At 3:06pm on 3 July Abbas telephoned the UCO while Assi was present. Assi told the UCO that the "paperwork" (i.e. the invoice, the packing list and the packing declaration) could be prepared after the shipment had arrived. However, the UCO insisted that it be done beforehand.
36. On 5 July Ahmad and Abbas met the UCO and they discussed the purchase price of the cigarettes. Ahmad said that they were unable to take so many boxes of cigarettes due to limited storage space. Ahmad enquired as to the price of the containers, and the UCO told him that the price was $1.25 million per container, a total of $2.5 million for both. The UCO told Ahmad that each container would contain 23,000 cartons of cigarettes, which would equal 230,000 packets. They agreed on a price of $5.00 per packet, Ahmad telling the UCO that Abbas (i.e. Choukor) could source cigarettes for a better price than the UCO. Ahmad also said: Everyone's getting scared…. say to me what about if he's undercover.
37. In a reference to Choukor, Ahmad said: I guarantee the other guy he, we're scared that he's probably undercover.
38. When Abbas re-joined the conversation he said: A few boys go you were from the Middle Eastern coppers.
39. On 6 July the UCO met with Ahmad. The UCO asked Ahmad if he had any papers from the broker and Ahmad replied: Not yet, when Abbas comes in.
40. The UCO told Ahmad that one container was to be described as "waterproofing stuff" and the other was to be described as "golf supplies". He said that his money was all tied up in the cigarettes and he was waiting to get the containers in so that he could move back to his other business (a reference to the importation of drugs). Ahmad did not know that the UCO had prepaid for the containers of cigarettes and said to the UCO (in reference to involvement with drugs): Better stay with cigarettes.
41. On 9 July Abbas met the UCO and handed him a false commercial invoice and a false packing declaration which had been created by Assi, based on the information which had been provided by the UCO. The documents related to the second container which had been consigned in the name of the Dietrich Family Trust.
42. On 17 July Ahmad and Abbas met the UCO for the purpose of the UCO collecting $55,000.00 as part payment for the tobacco which was the subject of other charges. [16] The UCO asked Abbas if he had heard anything about the invoices. Abbas responded that he was not sure, and that the UCO should come back next week. The UCO confirmed that he would get the two containers of cigarettes into a warehouse, and that Abbas could then "come and buy them".
43. On 30 July Abbas met with the UCO and handed him a draft packing list, a packing declaration and a commercial invoice, all of which had been created by Jomaa, and all of which were obviously false. There were outstanding details to be completed on those documents by the UCO. There was further discussion about the containers, with Abbas informing the UCO that Jomaa would upload the documents onto the ICS. The documents were ultimately uploaded onto the ICS by an agent at Wiseway Logistics (Wiseway), a brokerage firm which was used by Qube. Whilst Jomaa disputed playing any role in arranging this, the sentencing judge concluded that the inference that he did so was clearly available.
44. On 6 August Abbas met the UCO and they discussed the arrival of the containers. The UCO told Abbas that he had organised one container to be picked up when it arrived at the warehouse and that he wanted a substantial deposit, in the order of $1 million to $1.5 million, and would then provide the warehouse key to Abbas. It was agreed that a full count of the imported cigarettes would be conducted by Abbas and the UCO before delivery. Abbas said: But like now we're not taking that up, we're gonna give it to another wholesaler. He's gonna sell them. … Okay but this guy won't pay us until he receives the stock.
45. The Crown submitted, and the sentencing judge appears to have accepted, that Abbas' reference to "another wholesaler" was a reference to Choukor.
46. When Abbas told the UCO that he would pay a deposit of $750,000.00 on delivery, the UCO said that this was unacceptable, and that he required $1.5 million as a deposit. The UCO also told Abbas that he still needed to get the paperwork ready. Abbas replied that Assi was "asking (him) for papers", to which the UCO responded: Like I said to him, you'll get your 20 when I get the invoice and the boat is on the water.
47. Abbas then called Assi. They had a brief conversation in which Assi said that he did not want to talk on the phone and would meet with Abbas the following week.
48. The UCO and Ahmad then discussed arrangements for the delivery of the cigarettes once they had arrived. Ahmad asked for a smaller delivery by van or truck, but the UCO advised that this was not possible, as he had already invested all of his money in the containers. He said that once the cigarettes had cleared, he would put them in a warehouse, obtain the deposit, and then give Ahmad the key to the warehouse, with the outstanding balance to be paid when the cigarettes were sold. Ahmad replied: I think that way very hard for us.
49. The UCO responded by saying that this was how was going to work and that he did not: …care if it takes a couple of months, but upfront, I need my money up front.
50. When the UCO said that he would help Ahmad "move them", Ahmad replied: To be honest with you it's not gonna be easy on us. … Two, I think very, very hard, it's - it's not easy but I can get my partners, we can manage with one but the second one like it…… 460, we'll take 300 small shops, they'll take one, it's all right, we can manage here. We can manage both of them together, very hard.… With one, we can manage with one, but the other one's gonna take three or four weeks, something like that.
51. The two containers left Dubai on 27 August. One carried half Manchester Regular Red cigarettes, and half Manchester Ultra Light Grey. The other carried Manchester Light Blue cigarettes only. All of the cigarettes had been sourced by, and provided to, the JWTF.
52. At 10.00am on 2 September Abbas and Ahmad met the UCO to discuss payment. Ahmad told the UCO that he was concerned about law enforcement intervention and wanted the container to be stored for a number of weeks prior to collecting the cigarettes. Ahmad then left the meeting to attend an appointment, following which Abbas and the UCO discussed Assi being able to help with moving the containers. The UCO waited while Abbas telephoned Assi to try and organise a time for him to meet the UCO so that the UCO could give Assi his agreed advance payment of $20,000.00.
53. At 5:53pm, Abbas returned a telephone call from the UCO and they discussed the fact that both Assi and Jomaa wanted more money. The UCO said that he was ready to give each of them an initial payment of $20,000.00 but wanted to negotiate a new fee with them directly. They then discussed the logistics of the delivery and the payment. Abbas said: Yeah, no we're gonna pay you up front. We're not gonna wait until we sell them.…. The man will have the money ready for the 20 pallets right? We take the truck, the guy will get the money here, the money will be in the shop with my dad. The UCO replied: If you bring me the money you can take the truck.
54. They agreed to talk again before the UCO met with Jomaa or Assi. The UCO subsequently told Abbas that he wanted a deposit of $750,000.00.
55. On 8 September Abbas met with the UCO. In the course of that meeting Abbas telephoned Assi and they agreed that the three of them should meet a short time later. Abbas and the UCO then met with Assi, at which time the UCO handed Assi a typed document that he (the UCO) had created, which included the container number and details of the purported contents. During the meeting Assi advised that he needed the bill of lading. He negotiated a total fee of $70,000.00 with the UCO for his involvement in the importation and was handed $20,000.00 in cash as a deposit. In reference to the fact that he did not like meeting in person, Assi said: If it's up to me I don't like to see anyone, that's what I mean…. I wanna stay away.
56. Abbas and the UCO then left.
57. Abbas then received a call from Jomaa. Abbas said: The guy came past and he gave me a few papers. I will show them to you yeah?
58. Jomaa agreed with Abbas to meet with him in 20 minutes time, telling Abbas: All right, no worries, bring the drinks with you, I'm waiting.
59. The sentencing judge inferred that the reference to "the drinks" was a reference to the payment of money, in circumstances where Jomaa had repeatedly said that he did not want to meet the UCO personally.
60. Abbas and the UCO then drove to Jomaa's residence where Abbas met Jomaa in a downstairs garage. The UCO had previously given Abbas a typed document with the container number and a description of the purported contents. A short time later, Abbas returned to the UCO with a handwritten list, requesting the UCO provide Jomaa with (inter alia) a bill of lading. Abbas told the UCO that Jomaa would organise the invoice and the packing declaration. The UCO said he wanted to personally hand Jomaa his advance of $20,000.00.
61. Abbas then left again and walked back to the garage. A short time later, the UCO received a call from Abbas who handed the phone to Jomaa allowing him to speak to the UCO. The UCO told Jomaa that he was going to give Abbas the deposit who would pass it on to Jomaa on his behalf. Abbas then returned and the UCO gave him $20,000.00 in cash. Abbas then left for a third time and returned to Jomaa. He then telephoned the UCO again who spoke to Jomaa and said: Yeah we're good? Jomaa responded: Yeah, yeah, yeah, yeah, all good.
62. Although Jomaa disputed it, the sentencing judge was satisfied that he was paid $20,000.00 on that occasion.
63. On 14 September Abbas spoke to the UCO and told him that he had spoken to Jomaa over the weekend who had created a handwritten note to the UCO setting out details of how to create an invoice for one of the containers. Abbas and the UCO agreed to meet the following day so that the UCO could collect the note.
64. At 4:00pm on 15 September Abbas and the UCO met and discussed how payment of the deposit for the cigarettes was to be made to the UCO, and the timing of the delivery of the containers. Abbas then telephoned Jomaa and discussed the documents that the UCO had provided, with Jomaa telling Abbas that he was scared to meet the UCO but would accept an electronic copy of the documents. A short time later, the UCO and Abbas travelled in separate vehicles to Jomaa's residence. The UCO gave Abbas a bill of lading, following which Abbas again met Jomaa in the garage of Jomaa's residence. A short time later Abbas left the garage in possession of documents given to him by Jomaa which were to be passed onto the UCO. Those documents were handwritten invoices, with a reference to a particular email address, which Jomaa had given Abbas to facilitate the creation of a false invoice for the container consigned to American Golf Supplies. Abbas conveyed, to the UCO, the instructions that Jomaa had given him, namely that the UCO was to create a false invoice using the details provided by Jomaa, and then email the invoice, along with the bill of lading, to the email address which had been provided.
65. The UCO and Abbas also discussed the arrangements for collection of the cigarettes. The UCO suggested that the exchange of money and the collection of the cigarettes from the warehouse take place simultaneously. Abbas suggested that the UCO organise a truck containing the cigarettes, hand over the keys to the truck, and then collect the money.
66. At 8:30pm on 15 September Abbas and Assi met the UCO, at which time the UCO handed a second bill of lading to Assi. Assi told him to email the original, along with the shipping instructions, to an email address at Hellas, which was in fact the email address of Assi's de facto partner who had access to the ICS. Assi told the UCO what to include in the official invoice, and said that he required the email and the paperwork to be sent immediately, explaining that the documents needed to be loaded onto the ICS urgently to prevent any law enforcement interest.
67. At 5:39pm on 16 September the UCO telephoned Abbas and asked him to follow up the packing declaration and list from Jomaa.
68. At 5:42pm Abbas telephoned Jomaa and they again spoke using coded terms, including "soccer" references. Abbas told Jomaa that the company needed the declaration and the packing list. Jomaa replied that they did not need the list but that if the UCO insisted, he should prepare one himself. Jomaa arranged to meet the following day and provide the packing declaration.
69. At 6:10pm Jomaa telephoned Abbas to confirm the details. Abbas again advised that the UCO required the packing list. Jomaa said that he needed the invoice to create the list. The packing list was later provided to the UCO.
70. At 6:08pm on 21 September the UCO sent a text message to Abbas saying: Make sure you let the Greek know I don't got any bill from the Maersk shipping company which means he hasn't submitted the documents to them. If I don't pay Maersk they won't clear. Let him know mate.
71. The reference to "the Greek" was a reference to Assi.
72. At 7:46pm on 21 September Abbas telephoned Choukor on behalf of Ahmad, at which time Choukor agreed to meet Ahmad at 6:00pm the following day.
73. At 12:15pm on 22 September the UCO sent a further text message to Abbas saying: The Greek hasn't done his stuff mate, ship is due tomorrow. If I don't pay the ship company today the container will be held. I need to go and pay 'em. Greek needs to submit everything now. Shifty all good, already spoke to them and it's all good to pick up but Greek no good mate. Call them and make it happen.
74. The sentencing judge inferred from this message that all of the paperwork was in order in relation to the container for which Jomaa was responsible, but not for that for which Assi was responsible.
75. At 2:20pm Abbas telephoned the UCO and advised that he was meeting with Assi in 10 minutes. When Abbas and Assi met a short time later, Abbas telephoned the UCO. Abbas passed the telephone to Assi who told the UCO that the ship was going to arrive on 24 September 2015,that it would take at least two days to unload it, and that he was going to give the papers to Abbas to pass on to the UCO. Assi later handed Abbas a false packing declaration and a false commercial invoice in respect of one of the two containers.
76. At 5:45pm the UCO sent a message to Abbas stating: All the documents have been sent to the Greek mate. Thanks heaps man.
77. On 23 September Abbas met the UCO and they discussed the imminent arrival of the containers. The UCO advised that he would organise the truck which would be loaded at the warehouse with the assistance of Abbas. He also suggested that Jawad assist. The UCO said that the truck would then be brought to the back of the supermarket so that he could collect payment, following which the contents of the truck could be delivered to the purchaser. The UCO suggested that two truckloads be delivered on the first day, which would equal one container. He told Abbas that he wanted Zein to: … double check cause I don't know who these guys are at Wiseway. I don't know who the other guys are that's ringing me and saying alls good.
78. Abbas was hesitant to do so but the UCO insisted, and said that he would "look after" Zein, offering to pay her $5,000.00. When Abbas said that he would call Zein, the UCO gave Abbas four mobile telephone handsets so that they could communicate during the exchange. It was agreed that the UCO would collect Abbas and Jawad on 29 September. During this meeting the UCO offered Abbas some tobacco, and Ahmad some cigarettes, for free, saying: It's my thank you for everything you've helped me with.
79. A short time later Ahmad met the UCO at his (Ahmad's) residence and agreed to take two truckloads of cigarettes on 29 September for $480,000.00 per truckload. On that occasion Ahmad said: They said probably within ten days everything's clear and paid.
80. Ahmad and the UCO also discussed details surrounding the exchange of the money in payment for the cigarettes. In a reference to Choukor, Ahmad told the UCO that he (Choukor) was the man they were going to deal with, describing him as a "very honest man".
81. At 9:11am on 25 September Jomaa called Abbas and they spoke in Arabic using coded terms. Jomaa asked if the container been released, and if arrangements were in place to move it. He warned Abbas that the papers had arrived two days ago but that transport was "not looking good". Jomaa said, on two occasions: And try to stop calling just in case. Abbas responded: I know that all we spoke about was soccer.
82. At midday on 25 September Abbas met Choukor and they discussed the imminent arrival of the containers. Later that day the vessel MSC Daniela, carrying the two containers, arrived in Sydney. Each of the two containers was carrying 230,000 packets of 20 cigarettes on which excise duty totalling $4,876,883.20 was payable, $2,438,441.60 on each container. Choukor telephoned Abbas at 7:25pm and they arranged to meet a short time later. Choukor subsequently met with Abbas and Ahmad and gave them $350,000.00 in cash for his share of the cigarettes.
83. On 28 September the containers were moved to a terminal in Banksmeadow. At 8:00am on 29 September the UCO met Abbas, Ahmad and Jawad. Ahmad waited behind whilst the UCO, Abbas and Jawad went to the terminal. On the way, Abbas confirmed that Ahmad had received money from Choukor and that the UCO would be paid $350,000.00 for the first truckload of cigarettes. On arrival at the terminal they opened the two containers and Jawad assisted in unloading the first 108,000 boxes of cigarettes into a truck. Abbas then drove the truck to Arncliffe, with Jawad and the UCO following in the UCO's car. After parking the truck, Abbas entered the UCO's car. He told the UCO that the man waiting with Ahmad at the supermarket was "Abbas" (i.e. Choukor) and said that they would give him the keys to the truck. The keys were then given to Choukor with the intention that he would take possession of cigarettes. Ahmad gave the UCO $350,000.00 in cash which he had received from Choukor, with Jawad being present when the payment was made. That amount of $350,000.00 was the amount referred to in the additional matter which Ahmad had asked the sentencing judge to take into account when sentencing him for this offending.
84. The conspirators were subsequently arrested.

Ground 1 - The sentencing judge failed to take into account, or give adequate reasons with respect to, a relevant consideration, namely, the prospects of rehabilitation

The evidence on sentence - Abbas

1. Abbas did not give evidence in the sentence proceedings but tendered a letter to the sentencing judge which included the following: [17] Besides understanding the effects of my actions, I have taken the right steps in order to make sure I will never reoffend again. I am a firm believer in helping others in need and therefore will never try to defraud the government again. I will make sure I never put myself in a position to ever hurt my kids ever again. The last thing I want is not to be able to see my kids grow up.
2. A report of Dr Paul Pusey, Clinical and Forensic Psychologist, dated 23 September 2019 was tendered in Abbas' case on sentence. In addressing the risk of re-offending, and the related necessity for ongoing treatment, Dr Pusey said: [18] As previously reported, [Abbas] has no history of criminal offending prior to the event for which is before the court. Indeed, his reported history primarily evidences that he has engaged in prosocial behaviour, holds prosocial attitudes and has been able [sic] actively engage in the creation and maintenance of contexts which are supportive of this. It is noteworthy however that he appears to base much of his interpersonal decision making, sense of self and self-worth on the desire and ability to make people happy particularly as evidenced by the service which he is able to provide for others with whom he places a value on a relationship with them. His reported history suggests that he is likely to have difficulty maintaining effective boundaries within these relationships, in particular as it relates to the process of balancing who's [sic] needs should be prioritized with respect to his behavioural decision making. Based upon the disclosures made during his clinical interview, it is likely that this is significantly influenced by his discomfort with the scrutiny that he believes he will experience from others and that the cognitive process described above is a method of avoiding his exposure to this.
3. Dr Pusey concluded that Abbas did not present with any additional risk of recidivism arising from his reported history, and that the risk which was otherwise present could be modified through treating his identified psychological vulnerabilities, and the role that those vulnerabilities had played in his offending. [19] In expressing the view that it was unlikely that Abbas would be able to access such treatment in custody, Dr Pusey said: [20] There is also the significant likelihood that a removal from his community based prosocial relationships, opportunities and roles that he currently undertakes, will likely result in the exacerbation of his untreated psycho pathology complicating his presentation. This would be likely to enhance the difficulty associated with any future community re-integration and increase the potential for future engagement in maladaptive behaviours which may lead to future offending.
4. A number of testimonials were tendered to the sentencing judge in Abbas' case, [21] from which it was clear that he had wide ranging support from a large number of family and friends. The authors of some of those testimonials expressed the view that Abbas would not re-offend. An affidavit of Ali Elzein (Ali), Abbas' brother, was also tendered. That affidavit, on which Ali was not cross-examined by the Crown, covered a wide range of issues, some of which were specifically referable to Abbas' case. [22] Ali expressed the unequivocal opinion that Abbas would not reoffend. [23]

The sentence proceedings - Abbas

1. In written submissions provided to the sentencing judge, counsel who appeared for Abbas on sentence (who was not senior counsel who appeared for Abbas and Ahmad in this Court) referred to the decision in Stanford v R [24] and submitted that personal deterrence and the protection of the community had little (if any) role to play in determining sentence where there was "demonstrated rehabilitation" on the part of an offender. [25] Counsel further submitted, by reference to the decision in Thorn v R, [26] that where there is demonstrated rehabilitation, general deterrence will also play a much lesser role in the sentencing exercise. [27] Counsel also emphasised that Abbas had maintained his employment pending sentence, and had complied with all conditions of his bail over a long period of time. [28] The fundamental proposition underlying all of these submissions was that Abbas had demonstrated rehabilitation in the period since his arrest.
2. Counsel's written submissions then proceeded to state the following: [29] [Abbas'] prospects for rehabilitation are very good for the following reasons: his expression of remorse in his letter of apology and to family and friends; he has strong family support; and his risk of recidivism is low (see psychological report of Dr Pusey, paragraph [12] (sic)).

The evidence on sentence - Ahmad

1. Ahmad did not give evidence on sentence. Similarly to Abbas, he tendered a letter to the sentencing judge which included the following: [30] To avoid making this mistake again I immediately banned the selling of imported tobacco and only allow Australian cigarettes in my shop which will make sure that I never have a problem with the government again. I understand that defrauding the government is a big crime since it takes money away from government which helps support schools, hospitals, the poor and others. …… But your Honour, I am here for to put my hand up for what I have done and take full responsibility. I am apologetic for my selfish behaviour which has caused a considerable amount of hardship to everyone associated and would love nothing more than to continue living my life with my family and helping my community. I have made sure this will never happens [sic] again and hope that my good record, charity work and community service come into consideration.
2. Testimonials from a number of Ahmad's family and friends were also tendered, [31] all of which expressed support for him. Ali's affidavit also addressed Ahmad's position [32] making specific reference to the support for Ahmad, both within his family and the broader community. Ali expressed the unequivocal (and unchallenged) opinion that Ahmad would not re-offend. [33]
3. A sentencing assessment report [34] noted that Ahmad had accepted responsibility for his offending, and assessed his risk of re-offending as low. [35] A psychological assessment by Jake Baldacchino was also tendered in Ahmad's case which included the following: [36] [Ahmad's] significant family support, strong religious faith, supportive healthcare providers (psychologist and GP), meaningful employment, current absence of acute pathology and demonstrated insight, suggest that his prognosis remains good in the event he is not incarcerated. Subsequently his risk of recidivism would be considered low.
4. Clinical notes of Abdul Saad, Clinical Psychologist, [37] were also tendered in Ahmad's case. Those notes made reference to (inter alia) Ahmad suffering from an "anxious ruminations" and a "depressed mood". In his report, Mr Baldacchino noted [38] that Ahmad had attended four sessions with Dr Saad between 20 October 2015 and 2 March 2016 for treatment of depressive and anxious symptomatology following his arrest, at which time Dr Saad had reported that Ahmad had persistent passive suicidal ideation. Mr Baldacchino also noted that Ahmad had said to Dr Saad: We did wrong… (we are) definitely not innocent of all of them (charges). [39]
5. The written submissions provided to the sentencing judge by counsel for Ahmad [40] generally mirrored those made on behalf of Abbas as to the issue of rehabilitation. Counsel advanced the general proposition that Ahmad's demonstrated rehabilitation meant that the principles of personal and general deterrence were of less weight, before specifically submitting: [41] …… [Ahmad's] prospects for rehabilitation are very good for the following reasons: (i) despite the age of the offender, he has no criminal history; (ii) he has an extremely strong support network, including family and friends, and others linked to his community and faith; (iii) he travelled to Lebanon with his wife in July/August 2018 and returned to Australia to continue with his criminal proceedings [and] it was upon his return that his pleas of guilty were entered; (iv) he has expressed retrospective insight into his offending as to his behaviour and subsequent impact upon his family; (v) he has expressed remorse as early as 2 March 2016 were reflected on his offending to Dr Saad stating, 'we did wrong… (we are) certainly not innocent of all of them (charges)'; and (vi) the risk of recidivism has been assessed as low (see psychological report of Mr Baldacchino, page 5) (emphasis in the original).

The reasons of the sentencing judge

1. His Honour specifically referred to s 16A(2)(n) of the Crimes Act 1914 (the Act) which requires a Court, when sentencing a Federal offender, to have regard to that offender's prospects of rehabilitation. His Honour then said: [42] I propose to deal with each of the subjective cases of the offenders one by one and form some assessments about their prospects for rehabilitation and any likelihood of either not offending or offending in the future. It must be said that a majority of the offenders fall to sentence having no criminal antecedents and some of them having achieved middle age or later. Against that, as can be seen a number of offenders face punishment for multiple offences.
2. In addressing Abbas' subjective case, the sentencing judge summarised the contents of the report of Dr Pusey at some length. [43] His Honour also observed [44] that Abbas was "entitled to trade on 35 odd years of upright behaviour in the community before these falls from grace." His Honour addressed Ahmad's subjective case in various respects, [45] including his prior good character, his upbringing and his age, before referring to aspects of the report of Mr Baldacchino. [46]
3. Finally, his Honour said: [47] I have endeavoured in articulating the role and involvement of the offenders to differentiate their conduct, one from the other. Greater weight has been given to rehabilitation to those who have demonstrated that they had something to rehabilitate from and Kadouh particularly has shown impressive progress particularly in that regard.
4. In circumstances where there was evidence that Kadouh had a long standing drug addiction, I infer that his Honour was alluding to that addiction, and Kadouh's efforts in overcoming it.

Submissions of Abbas and Ahmad

1. Senior Counsel submitted that the sentencing judge did not, at any point in his reasons, make any finding about the prospects of rehabilitation of either Abbas or Ahmad. It was submitted that this issue had been squarely raised in submissions, and was thus one of which his Honour must have been aware. It was submitted that in these circumstances, there was an obligation on the sentencing judge to address that issue by considering the submissions which had been made, and expressing a conclusion.
2. Whilst senior counsel acknowledged that his Honour had made reference to the rehabilitation of other offenders, he submitted that those references did not support an inference that his Honour had considered the issue in the case of either Abbas or Ahmad. Senior counsel further submitted that his Honour's reference to other offenders having had "something to rehabilitate from" did not alter the fact that rehabilitation remained a mandatory consideration in the subjective cases of each of Abbas and Ahmad.
3. In the alternative, it was submitted that if it were found that the sentencing judge had taken into account, and assessed, the prospects of rehabilitation of each of Abbas and Ahmad, his Honour's reasons failed to discharge the obligation to explain any conclusions that he may have reached.

Submissions of the Crown

1. Whilst acknowledging that an offender's rehabilitation was a specific consideration by virtue of s 16A(2)(n) of the Act, the Crown submitted that the matters in s 16A(2) were not to be regarded as constituting some form of rote "checklist". It was submitted that the more important consideration was whether his Honour's reasons had reflected the fact that his Honour had considered and addressed all relevant issues.
2. In circumstances where his Honour was evidently aware of the provisions of s16A(2)(n) of the Act, the Crown submitted that the references in his Honour's reasons to the rehabilitation of other offenders sustained an inference that his Honour had in fact considered the prospects of rehabilitation of each offender, including Abbas and Ahmad.

Consideration

1. In Pettitt v Dunkley, [48] as well as in Soulemezis v Dudley (Holdings) Pty Limited [49] it was recognised that the duty to provide reasons is a fundamental component of the judicial process. Such duty is a manifestation of the fundamental principle of the common law that justice must not only be done, but must be seen to be done. [50]
2. The extent of the duty will depend upon the circumstances of the individual case. [51] In that regard, Mahoney JA said in Soulemezis: [52] … In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.
3. The corollary of that proposition is that if an issue is the subject of a specific submission made to a judge in terms which call for a reasoned consideration of it, that issue must be addressed in the reasons, and a definitive conclusion expressed.
4. In Taylor v R [53] Davies J, in the context of the factors set out in s 21A of the Crime (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), observed that it was not necessary for a sentencing judge to structure a judgment in the form of a checklist, in which principles of sentencing are enumerated and then "ticked off" as having been applied. To that extent, I accept the submission advanced by the Crown in response to this ground of appeal. However, consistent with the principles which govern the duty to give reasons, Davies J also observed in Taylor [54] that when a particular factor is addressed in submissions, what is required on the part of a sentencing judge is a "succinct statement as to the approach adopted on sentence" in relation to that factor. Whilst his Honour's views were expressed in the context of the factors set out in s 21A of the Sentencing Act, they are equally applicable to any relevant factor which arises under s 16A of the Act when sentencing a Federal offender.
5. In the present case, detailed submissions were made to the sentencing judge as to the prospects of rehabilitation of each of Abbas and Ahmad, in which a series of factors were set out in support of the ultimate submission, in each case, that the prospects of rehabilitation were very good. Having expressly stated that he would form an assessment about the prospects of rehabilitation for each individual offender, his Honour ultimately made no finding in that regard in respect of either Abbas or Ahmad.
6. It follows that in the circumstances of this case, and having regard to the submissions which had been made, the obligation which was imposed on the sentencing judge to engage with those submissions and reach a conclusion was not discharged simply by making reference to the evidence, nor was it discharged by making reference to the fact that greater weight had been given to rehabilitation in the cases of those offenders "who had demonstrated that they had something to rehabilitate from".
7. Moreover, in the context of sentencing any offender, the prospects of rehabilitation which must be considered is not confined to rehabilitation from (for example) a drug addiction, as was the case with Kadouh. It necessarily extends to rehabilitation from the very criminality of which that offender stands to be sentenced. The fact that neither Abbas nor Ahmad suffered from a drug addiction did not render their efforts at rehabilitation irrelevant, nor did it alleviate the necessity for the sentencing judge to consider the submissions which had been made, reach a conclusion on the issue, and explain such conclusion as had been reached.
8. I unreservedly acknowledge that the number of offenders, the multiplicity of charges, the complicated facts, and the varying degrees of criminality amongst the offenders, rendered this a very difficult sentencing exercise. However, giving full weight to those factors, I am satisfied for the reasons stated that this ground of appeal has been made out. In those circumstances, it is necessary for this Court to re-sentence each of Abbas and Ahmad in the fresh exercise of the sentencing discretion. In that regard, Abbas and Ahmad each relied on separate affidavits of Aisha Lopez, Solicitor, of 31 August 2021.
9. It should also be noted that Abbas and Ahmad also sought to rely on two additional grounds of appeal which asserted that the sentencing judge had: 1. failed to take into account, or give adequate reasons with respect to, the delay in sentencing; and 2. failed to take into account a relevant consideration, namely that the plea of guilty in each case was evidence of a desire to facilitate the course of justice.
10. Ahmad also advanced a fourth ground of appeal, namely that he had a justifiable sense of grievance in light of the sentence which had been imposed upon him when compared with the sentence imposed on Abbas.
11. Given that I have found that ground 1 has been made out, it is not necessary to consider these remaining grounds. However, I have taken into account the submissions advanced by the parties in respect of those remaining grounds on the question of re-sentence.

RE-SENTENCE - ABBAS

1. In re-sentencing Abbas, the Court must take into account such of the factors in s 16A of the Act as are relevant and known. Whilst I will address those factors individually, there are three matters which should be noted at the outset in terms of addressing the nature and circumstances of the offending and the need for adequate punishment. [55] Each of those three matters apply equally to the re-sentence of Ahmad, as well as to the re-sentence of Doughan, in circumstances where, for the reasons set out below, I have concluded that the second of Doughan's grounds of appeal has been made out.
2. The first, is that in each case I have addressed and considered the nature and circumstances of the offending, and the need for adequate punishment, on the basis of the factual findings reached by the sentencing judge which I have outlined above.
3. The second, is that addressing those considerations necessarily requires an assessment of the objective seriousness of the offending, that being an integral part of the sentencing process. The sentencing judge did not specifically engage in such an assessment. I have done so as part of the process of re-sentence.
4. The third, is that there is no requirement to express such an assessment in terms which place the offending at a particular point within a range or scale. What is required is that the facts, matters and circumstances of the offending be considered [56] by reference to what the particular offender actually did, [57] and bearing in mind that the only available conclusion is that the entirety of the offending of each of Abbas, Ahmad and Doughan was committed for financial gain.

The nature and circumstances of the offences - s 16A(2)(a)

The course of conduct in which Abbas engaged - s 16A(2)(c)

The need for adequate punishment - s 16A(2)(k)

1. The nature and circumstances of each of the offences to which Abbas pleaded guilty have been set out above.
2. In terms of objective seriousness, the offending in Abbas count 1 was not isolated. It took place over a continuous period of almost 10 months. Whilst the duty avoided was notional in the sense previously described, the magnitude of the amount of duty payable is nevertheless reflective of the seriousness of the offending. Moreover, Abbas' plea encompassed an admission that he knew that the goods had been imported and that in possessing them as he did, he intended to defraud the revenue of a substantial sum. Further, the total of $354,030.00 which was paid for the tobacco has added significance, as it is the sum referred to in the additional matter which Abbas has asked be taken into account in sentencing him for this offending.
3. The offending in Abbas count 2 was, once again, not isolated. Although the period of 3 months over which it extended was less than that in Abbas count 1, the facts demonstrate that for the entirety of that period Abbas was at the forefront of negotiations, not only with the UCO but also with Choukor and Doughan. In that sense, the offending involved considerable planning and premeditation. The negotiations for which Abbas was responsible extended to flavours of the tobacco which were to be supplied, and the price which was to be paid for it. Abbas' plea encompasses an admission that he knew that the goods were imported, and that he intended to defraud the revenue. Despite his repeated protestations to the contrary, the only available conclusion is that Abbas stood to make a considerable profit from the venture. The sum paid to the UCO, namely $332,000.00, and the amount of excise duty which was payable, namely $2,258,986.52, also reflect the seriousness of the offending.
4. The offending in Abbas count 3 was, once again, not isolated, and extended over a period of almost three weeks. Abbas' involvement is reflected, at least in part, by the fact that the airway bill, which nominated a false name for the consignee, specified a telephone contact number which was connected to a service that was used by Abbas at the time. Abbas also facilitated the collection of the boxes following their arrival by organising Jawad and Dufar to attend to that task. In his various conversations with Doughan, Abbas also used code when speaking of the consignment, obviously in an attempt to avoid detection. The excise duty payable, namely $32,967.09, was a significant sum.
5. The offending in Abbas count 4 extended over a period of approximately 6 weeks. For the entirety of that period, Abbas played a major role. To begin with, he was largely responsible for arranging the initial meeting with Assi, Chahine and Mourtada which took place on 1 July 2015, at which time the conspiracy was formed. It was Abbas who introduced Assi to Chahine and Mourtada, and who "promoted" Assi (and later Jomaa) persons who could assist in ensuring that the proposed importation did not come under the scrutiny of authorities, so that the payment of excise duty was avoided. It was also Abbas who met with the associate of the supplier of the tobacco and who, having discussed the available options for the importation with Assi, provided those options to Chahine and Mourtada.
6. The offending in Abbas count 5 commenced in April 2015, at which time Abbas met with the UCO, and extended over a period of almost six months. When the UCO initially explained his proposal to import the containers, Abbas' immediate response was positive, telling the UCO that he knew of other people who could assist. For the entirety of the period that followed up to the time of his arrest on 29 September 2015, Abbas performed a major role in the conspiracy. He was continuously meeting with the UCO to discuss all aspects of the conspiracy and was specifically responsible for: 1. Recruiting Assi and Jomaa to join the conspiracy; 2. negotiating the price, and the brand, of the cigarettes which were to be imported, and the details of their delivery; 3. engaging in coded discussions with Assi and Jomaa concerning their proposed roles; 4. providing information and advice to the UCO which he had obtained from Assi and Jomaa about most efficient way in which to carry out the importation so as to ensure that it would not come under scrutiny from authorities; 5. facilitating contact between the UCO on the one hand and Jomaa and Abbas on the other; 6. acting as the conduit for the transmission of cash, false documentation, and related information between Assi and Jomaa on the one hand, and the UCO on the other; 7. providing the UCO with false documentation which had been created by Assi and Jomaa in order to facilitate the importation; and 8. liaising with Choukor, and accepting receipt of $350,000.00 in cash for Chukour's share of cigarettes.
7. The seriousness of Abbas' offending is also reflected in the fact that the conspiracy was directed to avoiding an amount of $4,876,883.20 in excise duty.
8. In committing each of these offences, Abbas engaged in a continuing course of conduct which involved considerable planning. The individual periods over which Abbas offended were significant, some more so than others. Offending which involves an extended course of criminal conduct is obviously entirely different to, and more serious than, a specific event which constitutes an offence, or a number of specific events which occur within a relatively short period of time. [58]

Other offences that are required to be taken into account - s 16A(2)(b)

1. I have previously noted Abbas has asked the Court to take into account an additional matter attached to Abbas count 1 which involved dealing with $354,030.00 that he intended would become an instrument of crime. The Court must take that additional matter into account with a view to increasing the penalty which would otherwise be imposed in respect of Abbas count 1. In doing so, the Court must give greater weight to two particular factors, namely personal deterrence and retribution. [59]

Any injury, loss or damage resulting from the offending - s 16A(2)(e)

1. The duty referable to each individual offence was as follows: 1. Abbas count 1 - $581,809.00; 2. Abbas count 2 - $2,259,986.52; 3. Abbas count 3 - $32,967.09; 4. Abbas count 4 - $70,515.00; 5. Abbas count 5 - $4,876,883.20.
2. Any further observation about the significance of these amounts would be superfluous. In cases of welfare fraud, it is well established that the sum of money involved is a particularly relevant consideration on sentence. [60] It is no less relevant in a case such as the present, although I acknowledge that in some instances of Abbas' offending there was no actual loss to the revenue.

Contrition - s 16A(2)(f)

1. Section 16A(2)(f) requires the Court to take into account the degree to which an offender has shown contrition for the offence, either: 1. by taking action to make reparation for any injury, loss or damage resulting from the offence; or 2. in any other manner.
2. I have previously noted that Abbas tendered a statement without giving sworn evidence. This Court has recently reiterated, by reference to an established line of authority, that the practice of an offender tendering a statement in the absence of giving sworn evidence is not one to be encouraged, and that such statements are deserving of little or no weight. [61] Consistent with that approach, I attribute no weight to the statement tendered by Abbas.
3. Dr Pusey [62] made reference to Abbas having experienced "feelings of guilt in relation to his offences and their impact on his family". There are also references in some of the testimonials to Abbas having expressed contrition for his offending. [63] The weight which can be attached to that evidence in and of itself is limited. [64]
4. That said, Abbas' pleas of guilty are perhaps some evidence of contrition. Moreover, in his affidavit Ali made specific reference to Abbas having said that he was "extremely regretful" for his actions. [65] The Crown chose not to cross-examine Ali on the contents of his affidavit. The fact that such sworn evidence was unchallenged does not mean that the Court is bound to accept it. However, the Court is entitled to evaluate it in the context of other relevant evidence. [66] In the circumstances, I am satisfied that Abbas has some degree of contrition.

The pleas of guilty - s16A(2)(g)

1. Section 16A(2)(g) of the Act requires the Court to take into account Abbas' pleas of guilty, along with their timing and the degree to which they have resulted in any benefit to the community. When sentencing an offender for a Federal offence, the Court may apply a discount to reflect the utilitarian value of a plea of guilty. [67] The level of any utilitarian discount will be determined, to a large extent, by the timing of the plea. [68]
2. In the present case, the sentencing judge set out the procedural history of the matter at length. [69] In short, Abbas was arrested on 29 September 2015, and his pleas of guilty were entered approximately 3 years later. I infer that the delay was attributable to a variety of factors, including the number of offenders, the multiplicity of charges, and the negotiations which were obviously taking place. However, it remains the case that Abbas' pleas, far from being entered at the first available opportunity, were entered after he had been committed for trial in the District Court.
3. In addition to its utilitarian value, a plea of guilty may also be demonstrative of an offender's willingness to facilitate the administration of justice. However, particularly given that Abbas did not give evidence on sentence, there is no evidence which would support a conclusion that his pleas are indicative of such a willingness.
4. In all of the circumstances, and bearing in mind the timing of Abbas' pleas, I allow a discount of 17.5% to reflect their utilitarian value.

Specific deterrence - s 16A(2)(j)

1. Notwithstanding Abbas' background, and his prospects of rehabilitation which are discussed below, the additional matter that Abbas has asked be taken into account when sentencing him for the offending in Abbas count 1 requires the Court, for the reasons previously expressed, to have particular regard to personal deterrence.

General deterrence - s 16A(2)(ja)

1. General deterrence is an important consideration on sentence. Premeditated offending such as this, which is committed for financial reward, necessitates that any penalty imposed be sufficient to operate as a disincentive to others who may be tempted to offend in a similar way. [70]

Character, antecedents, age, means and physical or mental condition - s 16A(2)(m)

1. Abbas is presently 39 years of age and is married with three children. He has no prior convictions and in light of the testimonial material tendered on his behalf, he is clearly a person of prior good character. He is entitled to have that taken into account.
2. Having completed High School, he commenced working at the supermarket and had done so for 10 years at the time of the offending. He supported his community by (inter alia) making numerous donations to local organisations and charities. Certificates setting out his support of such organisations forms part of the evidence. That support is also referred to in a number of the testimonials. [71]
3. Dr Pusey concluded (inter alia) [72] that Abbas had no current or premorbid history of psychiatric pathology, but said that he presented with symptoms consistent with somatoform disorder, major depressive disorder, anxiety disorder, post-traumatic stress disorder and dysthymic disorder. [73] Dr Pusey also expressed the view that Abbas may meet the criterion for a dependent personality disorder [74] and concluded that he would benefit from treatment to address the issues which had been identified. [75]
4. The affidavit of Ms Lopez [76] makes reference to the effects of the current pandemic on persons in custody. I accept that those effects render Abbas' custodial conditions more onerous and have taken that into account.

The prospects of rehabilitation - s 16A(2)(n)

1. The unchallenged opinion of Dr Pusey is that Abbas' risk of recidivism is low [77] and that to the extent that there is any risk, it can be addressed by appropriate treatment. [78] Those opinions are generally consistent with the views expressed by Ali in his affidavit, [79] and those expressed in the testimonial material. All of these matters were specifically adverted to in the written submissions of counsel in the Court below which I have taken into account. In addition, the affidavit of Ms Lopez of 23 August 2021 [80] establishes that Abbas has been using his time in custody productively by engaging in employment and demonstrating a preparedness to engage in vocational courses as and when they are available. Case notes [81] describe Abbas as diligent and polite, and make specific reference to his good work ethic.
2. All of these matters support a conclusion that Abbas' prospects of rehabilitation are favourable.

Delay

1. Although delay is not one of the factors in s 16A of the Act, it may nevertheless be relevant when sentencing a Federal offender. [82] That relevance may manifest itself in different ways. In the present case, the delay which is relied upon by Abbas is delay in the resolution of the proceedings.
2. In Sabra v R, [83] with the concurrence of Meagher JA and Schmidt J, I departed from the approach which had been taken by the Full Court of the South Australian Supreme Court in Pickard v R, [84] namely that delay could only be taken into account if it was established that it resulted in consequences over and above anxiety and concern being visited upon the offender. In doing so, I said: Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant to all. To so conclude would be contrary to the weight of previous authority in this Court.
3. There was considerable delay in this case. The procedural history set out by the sentencing judge [85] establishes that a period of almost 4 years elapsed between the date on which Abbas was arrested and the date on which he was sentenced. The delay in the period between the time of Abbas' arrest and the time at which he entered his pleas of guilty, which was approximately 3 years, appears to have been attributable to the various factors to which I previously referred when considering Abbas' pleas of guilty. A variety of factors, including the number of offenders, the multiplicity of charges, and the general factual complexity of the allegations. To the extent that these matters did contribute to the delay, they are not the fault of Abbas.
4. Importantly, there was a delay of almost 9 months between the conclusion of the sentence hearing on 12 December 2019, and the imposition of sentence on 26 August 2020. That delay appears to have been attributable, at least in part, to the impact of the Covid-19 pandemic on sittings in the District Court. It was certainly not attributable to Abbas in any way. It is also significant that for that entire period, Abbas was at liberty on bail, in circumstances where the Crown had unequivocally submitted to the sentencing judge that the only appropriate sentence was one of full time custody. [86]
5. In his affidavit, [87] Ali spoke of the emotional toll on Abbas brought about by the proceedings. Further, at the time of his examination of Abbas on 23 September 2019 (which was almost 12 months before sentence was ultimately imposed), Dr Pusey [88] took a history that Abbas was "not really happy because [he's] always got this thing in the back of [his] mind". In light of this evidence, I accept that Abbas was under some stress and anxiety waiting for the proceedings to be concluded. Delay is therefore relevant as a mitigating factor.

Conclusion on re-sentence - Abbas

1. The seriousness of Abbas' offending is reflected in (inter alia) his role, the specific periods of time over which each offence was committed, the degree of planning and premeditation involved, and the amount of excise duty which was sought to be evaded in each case. The offending in Abbas count 5 was particularly serious, given the predominant role that Abbas played, and the amount of duty which was sought to be avoided. Whilst there are a number of subjective considerations which I have taken into account, it is important to bear in mind that a subjective case, no matter how strong, can result in the imposition of a sentence which is disproportionate to the seriousness of the offending. [89]
2. In view of the matters to which I have referred, I would have imposed a higher sentence in respect of Abbas count 5 than that which was imposed by the sentencing judge. It follows that in Abbas' case I am not of the opinion that any lesser sentence is warranted in law. [90]
3. I have set out my proposed orders below.

The nature and circumstances of the offences - s 16A(2)(a)

The course of conduct in which Ahmad engaged - s 16A(2)(c)

The need for adequate punishment - s 16A(2)(k)

1. The nature and circumstances of Ahmad's offending have been set out. In terms of assessing the objective seriousness of that offending, I make the following observations.
2. The offending in Ahmad count 1 extended over almost 10 months and accordingly, was not isolated. I have already pointed out, in considering the corresponding charge against Abbas, that both the price paid for the cigarettes, and the magnitude of the duty which was sought to be avoided, are reflective of the seriousness of the offending. Like Abbas, Ahmad's plea encompassed an admission that he knew that the goods had been imported and in possessing them as he did, intended to defraud the revenue of a substantial sum. It is also noted that Ahmad asked for an additional matter to be taken into account in respect of this offence which involved the sum of $354,030.00 which was paid for the tobacco, which Ahmad intended would become an instrument of crime.
3. The offending in Ahmad count 2 centred upon Ahmad's responsibility for facilitating the receipt of the first truckload of tobacco, and paying the UCO a total of $332,000.00 in cash for the tobacco. Whilst those responsibilities were important, and whilst his offending was not isolated, it must be acknowledged that Ahmad played no part in any of the negotiations.
4. The offending in Ahmad count 3 included Ahmad being present at the initial meeting with the UCO in the course of which the UCO set out his plan, and provided both Ahmad and Abbas the opportunity to purchase the cigarettes which were proposed to be imported. Whilst it is evident that Ahmad was more than prepared to avail himself of that opportunity, his role in the extended negotiations which followed over a long period was essentially limited to participating in discussions with the UCO and Abbas regarding the purchase price of the cigarettes and, towards the end of the conspiracy, being party to discussions regarding the delivery of the containers and the handing over of the cigarettes. He was also responsible for handing over the sum of $350,000.00 in cash to the UCO, an amount which he intended would become an instrument of crime, and which was reflected in the additional matter that he asked the Court to take into account when sentencing him for this offending.
5. All of Ahmad's offending was committed over significant periods of time, and involved premeditation and planning. For the reasons previously expressed, that is a relevant factor on sentence, and is one which renders the offending more serious than may have been the case had it been isolated.

Other offences that are required to be taken into account - s 16A(2)(b)

1. As previously noted, Ahmad has asked that two additional matters be taken into account, one in respect of Ahmad count 1 and the other in respect of Ahmad count 3. I have previously set out the approach which the Court must adopt when imposing sentence for each of the specific offences to which such additional matters are attached.

Any injury, loss or damage resulting from the offending - s 16A(2)(e)

1. The amounts of duty referable to each offence were as follows: 1. Ahmad count 1 - $581,809.00; 2. Ahmad count 2 - $2,259,986.52; 3. Ahmad count 3 - $4,876,883.20.
2. For the reasons previously expressed, these amounts are significant, and are a relevant consideration on sentence.

Contrition - s 16A(2)(f)

1. As I have noted, Ahmad did not give evidence on sentence but tendered a letter on which he was not cross-examined. For the reasons previously stated, I attach no weight to the contents of that statement. However, as is the case with Abbas, Ahmad's pleas of guilty are perhaps some evidence of his contrition and the sworn and unchallenged evidence of Ali [91] was that Ahmad had "expressed extreme remorse for his actions". The testimonial material tendered in Ahmad's case [92] was to a similar effect.
2. I am satisfied in the circumstances that Ahmad has some degree of contrition.

The pleas of guilty - s 16A(2)(g)

1. I have previously set out the principles governing the assessment of any discount for a plea of guilty entered by a Federal offender. Ahmad's pleas were entered approximately 3 years after his arrest, in the context of the procedural history to which I have referred. I apply a discount of 17.5% to reflect the utilitarian value of Ahmad's pleas. There is no evidence which would support a conclusion that any additional discount should be applied to reflect a particular willingness on his part to facilitate the course of justice.

Personal deterrence - s 16A(2)(j)

1. For the reasons previously expressed in addressing case of Abbas, and bearing in mind the additional offences that Ahmad has asked the Court to take into account, personal deterrence has a role to play in any sentence to be imposed on Ahmad.

General deterrence - s 16A(2)(ja)

1. For the reasons expressed when addressing this issue in the case of Abbas, general deterrence has an equally important role to play in sentencing Ahmad.

Character, antecedents, age, means and physical or mental condition - s 16A(2)(m)

1. Ahmad is presently 71 years of age. He has no prior criminal history and the unchallenged testimonial evidence establishes that he is a person of prior good character, a circumstance which he is entitled to have taken into account. He was born and raised in Lebanon and lived in an active war zone between 1972 and 1977. Mr Baldacchino reported that Ahmad [93] had traumatic memories of this time and was forced to move to Kuwait, before emigrating to Australia. He married in 1978 and has 11 children, and 35 grandchildren.
2. Mr Baldacchino's conclusions included the following: [94] Psychological assessment of [Ahmad] revealed a sound employment history and strong work ethic as demonstrated by his ability to manage and maintain a business. Assessment also revealed that [Ahmad's] background (i.e. separation from family due to the war and sudden loss of a brother) predisposed him to his strong family values which appear directly influenced [his] decision-making related to his offending misconduct (in an attempt to protect and repay his children). It appears that at the time of the index offence [he] likely did not meet the DSM-5 diagnostic criteria for any acute psychopathology, however, it is likely that he experienced anxious symptomatology surrounding the potential loss [sic] his son and repaying his children which precipitated his misconduct. [He] has retrospectively demonstrated both insight and remorse into his offending behaviour and how it has impacted his family.
3. In reaching these conclusions, Mr Baldacchino referred to clinical notes of Dr Saad, Ahmad's treating Psychologist, the contents of which I have previously noted.
4. The affidavit of Ms Lopez [95] establishes that Ahmad suffers from a hearing difficulty, which makes it difficult for him to hear public announcements in the correctional facility in which he is housed. That difficulty also impacts on visits, both from his lawyers and from members of his family, which are presently only available by audio visual link. I accept that these matters, along with the ongoing effects of the pandemic referred to in the affidavit of Ms Lopez, [96] render Ahmad's conditions custody more onerous.

The prospects of rehabilitation - s 16A(2)(n)

1. I have previously noted that Mr Baldacchino assessed Ahmad's risk of recidivism as low, which was consistent with the sentencing assessment report. I have also noted Ali's unchallenged opinion that Ahmad will not re-offend.
2. The affidavit of Ms Lopez [97] establishes that Ahmad has been employed in custody as a "sweeper", a role in which he has been described as diligent and polite. [98] He has also completed various programs in custody in (inter alia) workplace health and safety. [99] All of these matters establish that Ahmad is making productive use of his time in custody.
3. Having regard to the entirety of this evidence, I consider that Ahmad's prospects of rehabilitation are favourable.

Delay

1. I have set out, when addressing Abbas' subjective case, the principles which govern the circumstances in which delay can be taken into account as a mitigating factor on sentence. The periods of delay in Ahmad's proceedings, and the reasons for such delay, are identical to those identified in the case of Abbas.
2. In his report, Mr Baldacchino said: [100] [Ahmad] reported that, for nine (9) months after his arrest (2015), he experienced anxious symptomatology 'every couple of weeks' when triggered by 'feelings of guilt and thinking about it (the arrest)' detailing 'my heart would beat faster, I had headaches, my legs trembled (and) my breathing would become faster'. From the time of his arrest until 2017, [Ahmad] reported experiencing: trouble falling asleep detailing that he would ruminate about his arrest and take 'three (3) to four (4) sleeping tablets before bed' .…… With respect to current functioning, [Ahmad] reported that the above-mentioned 'still occurs… Just not as much… My sleep (memory and concentration) is good at the moment'. [Ahmad] reported that he suicidal ideations continue to 'come and go' and detailed that they occur every three (3) to four (4) months on average when triggered by thoughts of his arrest and feelings of guilt. When confronted with these suicidal thoughts [Ahmad] reported 'I remember what Saad told me and distract myself'.
3. Mr Baldacchino examined Ahmad in September 2019, almost 12 months before he was sentenced. As was the case with Abbas, Ahmad was on bail for the period of almost 9 months between the conclusion of the sentence hearing and the imposition of sentence, in circumstances where the Crown had submitted that the only appropriate sentence was one of full time custody.
4. In light of the entirety of this evidence, I accept that Abbas was under some stress and anxiety waiting for the proceedings to be concluded. Delay is therefore relevant as a mitigating factor.

Parity considerations

1. The three counts to which Ahmad pleaded guilty corresponded with the first three counts to which Abbas pleaded guilty. These circumstances, as well as the broader circumstances of the offending, necessarily require the Court to have regard to parity considerations. [101]
2. In terms of the offending in Ahmad count 1, it is difficult to differentiate, in any real sense, between the role played by Abbas on the one hand, and that played by Ahmad on the other.
3. However, Ahmad's offending in Ahmad count 2 was substantially less than that of Abbas. In particular, Ahmad played no significant role in any of the negotiations which were conducted.
4. Similarly, although Ahmad was certainly part of the Dubai conspiracy the subject of Ahmad count 3, his role was significantly less than that of Abbas. It is apparent from what Ahmad said when he met with the UCO on 6 July 2015 [102] that he was reluctant to discuss any arrangements for the importation without Abbas being present. Consistent with the objective evidence of the extent to which Abbas was involved, I am satisfied that Ahmad was subordinate to Abbas.
5. In terms of their respective subjective cases, Ahmad is substantially older than Abbas, and therefore has a longer period of time upon which to draw in respect of his prior good character. He also suffers from a hearing difficulty which, for the reasons I have set out, renders his condition of custody more onerous.
6. Taking all of these factors into account, and applying principles of parity, I have come to the view that the sentences imposed on Ahmad should be less than those imposed on Abbas.
7. I have set out my proposed orders in respect of Ahmad below.

THE GROUNDS OF APPEAL - DOUGHAN

1. Doughan relies upon two grounds of appeal. It is appropriate to commence by addressing the of those grounds.

Ground 2 - In refusing to direct, in accordance with s 7 of the Crimes (Sentencing Procedure Act) 1999 (NSW) and s 20AB of the Crimes Act 1914 (Cth), that the sentence of imprisonment be served in the community by way of an intensive correction order, his Honour erred by:

(a) failing to have regard to the issue of community safety; or alternatively

(b) failing to give paramount consideration of the issue of community safety; and

(c) failing, when considering community safety, to assess whether making the order or serving the sentence by way of full-time detention was more likely to address Doughan's risk of re-offending.

The sentence proceedings

1. The written submissions of counsel who appeared for Doughan on sentence (who was not counsel before this Court) included the following: [103] [Doughan] was arrested on 29 September 2015 and he has therefore been within the legal system and on bail for over 4 years and 2 months. This has been a lengthy and salutary lesson for him and his family. It is submitted that a sentence to be served by way of Intensive Corrections (sic) Order would be a more than adequate punishment and a significant deterrent to [Doughan] and other persons.
2. The written submissions went on to state: [104] It is submitted that the circumstances of this case present significant matters for sentence, including there being no prior record, his good character and the long period he has been on conditional liberty. Further, there being no loss to the revenue from any of his actions and taking into account the circumstances of the offending as detailed above, it is submitted that Your Honour should deal with [Doughan] either by the imposition of a sentence suspended forthwith pursuant to s 20(1)(b) Crimes Act (Cth), or a sentence to be served by way of an Intensive Corrections [sic] Order.

The reasons of the sentencing judge

1. The sentencing judge made reference to a number of general sentencing principles [105] before assessing Doughan's subjective case by referring to a range of factors. His Honour did not engage in any specific assessment of Doughan's risk of re-offending, or how any risk might be addressed. In particular, his Honour made no reference to the submissions advanced on Doughan's behalf that any sentence imposed should be served by way of an Intensive Correction Order (ICO).
2. After sentence had been imposed, the following exchange took place between the solicitor for Mourtada and the sentencing judge: [106] AYACHE: Your Honour, one last point, I only raise it because I don't want to be criticised if I receive instructions to take the matter somewhere else. Has your Honour considered the matters in section 66 of the Crimes (Sentencing Procedure) Act in terms of the submission made for an ICO and protection of the community? AYACHE: Yes. Basically what I said at the beginning of the proceedings was that all parties except for [Abbas] contended for sentences served in the community. For a couple of people, that's [sic] succeeds. For the balance and I have obviously considered those exercises in working out on whom it was appropriate to impose an Intensive Corrections Order. So even sentences that fall within the sentencing power of the Intensive Corrections Regime which is basically these three gentlemen in the dock and potentially Mr Jomaa I just thought the objective seriousness of the matters were such that they needed to be served by way of full-time imprisonment for the purposes of general and specific deterrence. AYACHE: Please the court. That is why I raised it because it was in that three year period. HIS HONOUR: No I'm glad you did. Yes all right. AYACHE: Just so I can let my client know. HIS HONOUR: Well that was part of my process, maybe I didn't expose that reasoning but it's certainly reasoning that I conducted as will be seen by the array of different sentencing dispositions. Alright thanks for raising those things Mr Ayache. It's important to be careful.

The relevant legislation

1. Section 20AB of the Act, combined with s 7 of the Sentencing Act, confers power on a Court to make an Intensive Correction Order (ICO) in the case of a Federal offender.
2. Section 66 of the Sentencing Act is in the following terms: Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess 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. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

Submissions on behalf of Doughan

1. In focussing on paragraph (b) and (c) of this ground, counsel for Doughan submitted that a reasoned argument had been put to the sentencing judge in support of a conclusion that any sentence of imprisonment to be imposed on Doughan should be served by way of an ICO. It was submitted that given that the issue had been raised, it was incumbent upon the sentencing judge to address it by reference to the provisions of s 66 of the Sentencing Act, and reach a conclusion. Counsel submitted that at no stage in his reasons in respect of Doughan did the sentencing judge address the issue, either in a general sense, or by reference to the specific submissions which had been advanced. Counsel pointed out that Kadouh and Jawad had each received the benefit of an ICO, but that his Honour had not given any reasons why the same course had not been adopted in Doughan's case, to the point where the issue was entirely unaddressed. It was submitted that in these circumstances, error had been established.

Submissions of the Crown

1. The Crown's position was that this ground was answered in its entirety by the decision of this Court in Mourtada v R. [107]
2. It was further submitted that any consideration of s 66 by the sentencing judge did not need to be specifically expressed, and was capable of being inferred. The Crown submitted that the fact that his Honour had obviously considered the availability of ICO in the cases of Kadouh and Jawad sustained an inference that he had similarly considered the issue in Doughan's case, notwithstanding the absence of any express reference to it in his reasons.

Consideration

1. In Mourtada, one of the grounds of appeal was that the sentencing judge had erred in failing to consider s 66 of the Sentencing Act. That ground was advanced against a background of the exchange which had occurred between the sentencing judge and Mourtada's solicitor at the conclusion of the sentence proceedings. [108]
2. In granting leave to appeal on that ground but dismissing the appeal, Basten JA observed in Mourtada: [109] The following points should be made with respect to the exchange with Mr Ayache set out above. First, the suggestion that the judge may not have considered the possibility of an ICO, in response to the submissions made to him, is flatly contradicted in the course of the exchange. Secondly, the reference in [the solicitor's] question to consideration of s 66 of the Sentencing Procedure Act was the first reference specifically to s 66 in the course of the sentencing proceedings. Thirdly, it was accepted that there was one party for whom no submission was made that the sentence be served in the community, and that ICOs had been given to other co-offenders, though not all. (emphasis added)
3. Basten JA went on to say: [110] The substantive matters raised in the course of the submissions were addressed by the sentencing judge; the phrase 'community protection' did not appear in those submissions. It follows that no complaint can now be made that the judge did not, in the sentencing judgment, use that language.
4. Adamson J, who agreed with Basten JA, said: [111] In the present case, his Honour considered that the objective seriousness of the offending and the purposes of general and specific deterrence required the sentence to be served by full-time detention. His Honour's reasons were sufficient to identify the bases on which an ICO was inappropriate. In these circumstances, it was not necessary for his Honour to go through s 66 of the Sentencing Procedure Act and address each consideration, as if each was an item on a list to be ticked off. No assumption is warranted that the sentencing judge was not cognisant of the wording of s 66 or the importance of the matters required to be considered. Indeed, it is plain from the sentencing judgment, when read as a whole, that his Honour was aware of, and applied, s 66 of the Sentencing Procedure Act and concluded that an ICO was warranted in respect of some offenders, but not in respect of the applicant.
5. In my view, the primary distinction between the circumstances in Mourtada, and those in the case of Doughan, lies in the fact that a specific submission was made to the sentencing judge by counsel for Doughan that an ICO should be imposed. For the reasons set out when dealing with ground 1 of the applications for leave to appeal brought by Abbas and Ahmad, the sentencing judge was obliged to engage with that submission, consider it, and express a conclusion in relation to it. Necessarily, that required a consideration of s 66 of the Sentencing Act. In circumstances where that specific submission was advanced on behalf of Doughan, I am not satisfied that his Honour's ex-post facto comments in the exchange following sentence discharged his obligation to engage with, and consider, such submission.
6. I am fortified in that view by the observations of McCallum JA (with whom Meagher JA and Simpson AJA agreed) in Wany v Director of Public Prosecutions [112] , that the obligation imposed on a sentencing judge to consider making an ICO may be enlivened, as a requirement of practical justice if not a matter of legal duty, where a cogent argument is advanced for taking that course. Such an argument was clearly advanced in Doughan's case.
7. In making those observations, McCallum JA made reference to the judgment of Campbell J in Blanch v R [113] where his Honour said: What enlivened the necessity for his Honour to consider, and in the event explain if he was not persuaded, specifically, that an ICO was appropriate was the argument put by counsel. If the argument was to be rejected, his Honour was required to deal with the matter in accordance with the statutory stipulations governing the power to make such an order.
8. The reasons of the sentencing judge made no reference at all to the submissions which were advanced on Doughan's behalf as to the disposition of the matter by way of an ICO. It follows that the sentencing judge failed to discharge the obligation which was placed upon him. As a consequence, this ground of appeal is made out.
9. In those circumstances, it is not necessary for me to consider Doughan's first ground of appeal which asserts that the sentence imposed was manifestly excessive. However, I have taken into account the submissions of both parties, and the authorities to which the Court was referred in respect of that ground, on the question of re-sentence.

RE- SENTENCE - DOUGHAN

1. In re-sentencing Doughan, the Court is again required to specifically consider those matters in s 16A of the Act which are relevant and known.

The nature and circumstances of the offending - s 16A(2)(a)

The course of conduct in which Doughan engaged - s 16A(2)(c)

The need for adequate punishment - s 16A(2)(k)

1. The nature and circumstances of each of Doughan's offences have been set out above. In assessing the objective seriousness of that offending, I make the following observations.
2. Throughout the period of the offending in Doughan count 1, Doughan was in close contact with Abbas. It is not without significance that Abbas appears to have sought Doughan's permission to contact what Abbas referred to as a "different broker" immediately before making enquiries with various businesses about the collection of the tobacco. Further, when Abbas discovered that the boxes contained paper rather than tobacco, he immediately informed Doughan who, on more than one occasion, asked Abbas to send him a picture of the boxes to verify what Abbas had told him. All of these factors support a conclusion that Doughan's role was certainly not peripheral, that it extended over a period of time, and that it involved evasion of a substantial amount of duty.
3. Doughan's involvement in the offending in Doughan count 2 commenced on 23 June 2015 when he was informed by Abbas that there were four tonnes of tobacco available for a price of $100.00 per kilo. Upon being informed of these details, Doughan immediately suggested that Abbas renegotiate the price to $80.00 per kilo. When later told that the UCO would not separate the consignment, it was Doughan who told Abbas that he and Choukor would "take all of them". Doughan continued to liaise with Abbas throughout the period of the offending, at one stage suggesting to Abbas that the price should be reduced to $95.00 per kilogram. Later, Doughan raised concerns about some of the flavours which were available, and suggested that this justified a further discount. Ultimately, it was Doughan who agreed with Abbas that an amount of $380,000.00 would be paid for the tobacco. All of these matters are indicative of the level of Doughan's authority. Doughan was also party to discussions with Abbas regarding the delivery arrangements, and assisted Choukor in the collection of the tobacco.
4. Both of Doughan's offences involved his engaging in a course of conduct over of time. The significance of offending of that kind, which necessarily involves planning and premeditation, has been previously noted.

Other offences that are required to be taken into account - s 16A(2)(b)

1. Doughan has asked that an additional charge of dealing with the proceeds of crime be taken into account in respect of Doughan count 2, such proceeds being the money paid for the tobacco which is the subject of that count. The manner in which this additional offences to be taken into account has been set out above.

Any injury loss or damage resulting from the offending - s 16A(2)(e)

1. The amount of duty referable to each of Doughan's offences was as follows: 1. Doughan count 1 - $32,967.09 2. Doughan count 2 - $2,259,986.52.
2. I have previously made reference to the significance of such amounts on sentence.

Contrition - s 16A(2)(f)

1. In a statement which was tendered on sentence, Doughan said: [114] I accept full responsibility for my actions, and I acknowledge the seriousness of the offences which I pleaded guilty to and referred to in the Agreed Facts. I am very sorry for what I have done and for my lack of judgment in allowing myself to be a participant in these offences. I apologise to the government, and to my family for what I have put them through. This has been an extremely large learning lesson for me, and I will ensure that I will never participate in any unlawful activity for the rest of my life. I am disgusted with myself for the shame I have brought to myself and my family. My wife and I brought up our four children to be law abiding, productive members of society and we are very proud of all of them. No one in my family has ever been in trouble with the police before this. If my father was still alive, I think I would have been too ashamed to tell him. I think it would have killed him.
2. Doughan also gave sworn evidence in the sentence proceedings. When asked what he wished to say about the offending, he said: [115] I'm sorry what I did to my family. And to the Government. And I did through stupidity. It was not that I meant to do it.
3. Consistent with these statements, a number of the testimonials tendered on Doughan's behalf made reference to his expressions of contrition. [116]
4. I am satisfied that Doughan has expressed contrition for his offending.

The pleas of guilty - s 16A(2)(g)

1. Against the procedural history that I have set out, Doughan pleaded guilty on the day of his trial. Bearing in mind the importance of the timing of the pleas when assessing any discount for their utilitarian value, I apply a discount of 12.5%. There is no evidence which warrants any further discount to reflect a willingness to facilitate the course of justice.

Specific deterrence - s 16A(2)(j)

1. Specific deterrence is a relevant consideration in light of the additional matter that Doughan has asked the Court to take into account on sentence in respect of Doughan count 2.

General deterrence - s 16A(2)(g)

1. For the reasons previously expressed, general deterrence is an important consideration on sentence.

Character, antecedents, age, means and physical or mental condition - s 16A(2)(m)

1. Doughan is 62 years of age. He has no criminal history and, in light of the testimonials tendered on his behalf, he is clearly a person of prior good character and is entitled to have that factor taken into account. He was born in Lebanon and endured several years of difficulty living in the civil war, as a consequence of which he was forced to move to Saudi Arabia in order to gain employment and provide support for the other members of his family. He completed an apprenticeship as an electrician in Saudi Arabia where he remained for 13 years. Following the death of his father in 1982, he became the principal source of financial support for his family. He was married in 1988, his wife being an Australian resident. Following their wedding, Doughan and his wife came to Sydney. They have four children.
2. Following his arrival in Australia, Doughan was required to undertake further study so that his overseas qualifications as an electrician would be recognised in this country. He completed those additional studies, received his trade licence and established his own business. A significant work injury subsequently rendered him unable to carry on as an electrician, following which he opened up a grocery store in which he worked full time, seven days per week. That business came to an end due to an issue which arose regarding the lease of the premises from which it operated. As a consequence, and not being able to return to work as an electrician due to his previous injuries, Doughan opened an import/export business which appears to have been successful.
3. Dr Olav Nielssen, psychiatrist, diagnosed Doughan as suffering from an anxiety order (panic disorder) as well as a depressive illness. [117] He concluded that Doughan would be likely to derive some benefit from expert counselling in the management of anxiety symptoms, supportive counselling to help him with strategies to overcome symptoms of depression, and a review of his medical treatment. [118]
4. Dr Nielssen's report also made reference to the clinical notes of Doughan's GP, Dr Tadros, which confirmed a prior diagnosis of coronary artery disease in 2000 and the prescription of medication for a number of conditions including high blood pressure and back pain. [119] I am satisfied that these factors render Doughan's conditions of custody more onerous, as does the impact of the current pandemic which, amongst other things, restricts the availability of personal visits.

The prospects of rehabilitation - s 16A(2)(n)

1. In his report, Dr Nielssen made the following observation: [120] Mr Doughan was assessed to have good prospects for rehabilitation and have a low likelihood of further offences of a similar nature, or any other offence. There was no past history of criminal charges or any pattern of antisocial behaviour. He reported consistent employment and work in his own business, and reported a successful family with strong community ties.
2. These observations were consistent with those made in testimonials tendered on Doughan's behalf, including that of his brother who expressed confidence that this offending would remain "a one-off incident" from which Doughan would "learn valuable lessons". [121] It is also evident that Doughan enjoys the support of his family and friends, and his unchallenged evidence before the sentencing judge was that he "will ensure that [he] will never participate in any unlawful activity for the rest of [his] life." [122] Finally, a sentence assessment report assessed Doughan as being at a low risk of reoffending. [123]
3. In all of these circumstances, I am satisfied that Doughan's prospects of rehabilitation are favourable.

Delay

1. I have previously set out the principles which govern the extent to which, and the basis on which, delay may be taken into account as a mitigating factor. Dr Nielssen reported that since being charged, Doughan had developed anxiety and depression for which he had consulted Dr Tadros who had prescribed medication. This was in circumstances where Dr Nielssen noted that Doughan had not reported any contact with any mental health services, or any episodes of depression, prior to being charged. [124]
2. Doughan's position in terms of delay is not dissimilar to those of Abbas and Ahmad. I am prepared to infer that the delay in the finalisation of proceedings has contributed to the stress and anxiety suffered by Doughan, and have taken that factor into account on sentence.

Consideration of an Intensive Correction Order

1. Section 66 of the Sentencing Act mandates that community safety must be the paramount consideration in determining whether to make an ICO and that when considering that factor, the Court must assess whether making an order for serving a sentence by way full time detention is more likely to address any risk of offending.
2. However, when considering the imposition of an ICO, the Court must have regard to all relevant factors, including the need for general deterrence, the prospects of rehabilitation, and the need for adequate punishment. [125] Importantly, this Court has observed that by stipulating in s 66(1) of the Sentencing Act that community safety is the paramount consideration, the legislature should not be taken to have intended that this be elevated to a mandatory consideration in the sentencing exercise, in the sense that it should dominate considerations of broader sentencing principles, including considerations which may dictate that no lesser sentence than one involving a full time custodial term is appropriate. [126]
3. Further, it is uncontroversial that cases in which a Court may decline to consider imposing an ICO will include those where the Court is satisfied, not only that there is no alternative to a sentence of imprisonment, but also where factors require no lesser sentence than full time custody. That may be because of the need for adequate punishment, general deterrence, denunciation, or the need to recognise the harm done to the victim and the community. Those considerations are not to be regarded as being reduced, by the operation of s 66, to a subordinate role. [127]
4. In my view, the objective seriousness of Doughan's offending, the amounts of duty involved, and the need for general deterrence warrant the imposition of a sentence of full time custody. I am not persuaded that such a sentence should be served by way of an ICO.

Parity

1. In determining an appropriate sentence, the Court must apply principles of parity as between Abbas and Doughan.
2. In terms of Doughan count 1, Doughan's day to day role was substantially less than that of Abbas. However in a hierarchical sense, there is evidence which would support a conclusion that Doughan's position was in fact higher. It was Doughan from whom Abbas sought a "green light" to "try a different broker", and who reported to Doughan regarding the progress of the consignment.
3. In terms of Doughan count 2, Doughan was responsible for taking possession of the tobacco and liaising with Abbas in relation to the price. He also asked that an additional matter be taken into account when sentencing him for this offence. However, Abbas' involvement in an overall sense was far greater, particularly in terms of the negotiations conducted with the UCO as to price.
4. In in terms of the respective subjective cases, Doughan is substantially older than Abbas and thus has a longer period on which to draw in terms of his prior good character. He also has health issues which impact upon his conditions of custody, and which have no role to play in Abbas' subjective case.
5. Having regard to all of these factors, I have come to the conclusion that Doughan's sentence, in each case, should be less than that imposed on Abbas.
6. I have set out my proposed orders below.

Abbas Elzein

1. In respect of the application for leave to appeal against sentence of Abbas Elzein, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

Ahmad Elzein

1. In respect of the application for leave to appeal against sentence of Ahmad Elzein, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentences imposed in the District Court quashed. 4. In lieu thereof, Ahmad Elzein is sentenced as follows: 1. in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 1), 16 months' imprisonment commencing on 26 August 2020 and expiring on 25 December 2021; 2. in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 2), 20 months' imprisonment commencing on 26 November 2020 and expiring on 25 July 2022; 3. in respect of the offence of conspiracy to dishonestly cause a loss to the Australian Border Force (referred to this judgment as Ahmad count 3), 24 months' imprisonment commencing on 26 June 2021 and expiring on 25 June 2023. 1. The total effective sentence is one of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023. 2. Pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022.

Bilal Doughan

1. In respect of the application for leave to appeal against sentence of Bilal Doughan, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentences imposed in the District Court quashed. 4. In lieu thereof Bilal Doughan is sentenced as follows: 1. in respect of jointly committing an offence by entering into an agreement to import tobacco products with intent to defraud the revenue (referred to in this judgment as Doughan count 1), 15 months' imprisonment commencing on 26 August 2020 and expiring on 25 November 2021; 2. in respect of jointly committing an offence by entering into an agreement to possess goods, namely tobacco products, knowing that the goods were imported, within intent to defraud the revenue (referred to in this judgment as Doughan count 2), 22 months' imprisonment commencing on 26 November 2020 and expiring on 25 September 2022; 3. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released on 25 December 2021, upon giving security in the sum of $100.00 without surety, on a recognizance to be of good behaviour for a period of 9 months.

Endnotes

1. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 April 2021 which was seemingly an error. The particulars of sentence filed in this Court (at AB 2) specify the correct date of 25 April 2022.
2. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 November 2023 which was seemingly an error. The particulars of sentence filed in this Court (at AB 2) specify the correct date of 25 November 2022.
3. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 April 2021 which was seemingly an error. The particulars of sentence filed in this Court (at AB 5) specify the correct date of 25 April 2022.
4. The reasons of the sentencing judge at AB 540 specified the expiration date as 16 April 2024 which was seemingly an error. The particulars of sentence filed in this Court (at AB 5) specify the correct date of 25 March 2024.
5. The reasons of the sentencing judge at AB 541 specified the expiration date as 25 December 2023 which was seemingly an error. The particulars of sentence filed in this Court (at AB 8) specify the correct date of 25 February 2023.
6. This date is also incorrect and should be 24 February 2023 (i.e. 10 months from 25 April 2022 as confirmed by the particulars of sentence filed in this Court at AB 8.
7. Commencing at AB 401.
8. AB 749 - AB 751.
9. Commencing at AB 406.
10. AB 419.
11. See the schedule at AB 742.
12. See the schedule at AB 1468 (in respect of Ahmad count 1) and AB 1471 (in respect of Ahmad count 3).
13. Commencing at AB 420.
14. Commencing at AB 424.
15. AB 430 and following.
16. Abbas count 2, Ahmad count 2 and Doughan count 2.
17. AB 1575 - 1576.
18. [61]; AB 1564.
19. [66]-[68]; AB 1565.
20. [70]; AB 1566.
21. AB 1577 - 1590.
22. [26]-[34]; AB 1638 - 1639.
23. [48]; AB 1643.
24. [2007] NSWCCA 73 at [19].
25. [29]; AB 1828.
26. [2009] NSWCCA 294; (2009) 198 A Crim R 135.
27. [30]; AB 1828.
28. 31; AB 1829.
29. [61]; AB 1836.
30. AB 1645.
31. AB 1646 and following.
32. [4] - [25].
33. [48]; AB 1643.
34. AB 1474 - 1477.
35. AB 1475.
36. AB 1621.
37. AB 1625 - 1631.
38. AB1620.
39. AB 1620.
40. [31]; AB 1829.
41. [60]; AB 1836.
42. AB 474.
43. AB 506 - 507.
44. AB 509.
45. Commencing at AB 504.
46. AB 504 - 505.
47. AB 535.
48. [1971] 1 NSWLR 376.
49. (1987) 10 NSWLR 247.
50. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42] Spigelman J.
51. Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels (Clarke JA and Hope JA agreeing).
52. [270].
53. [2020] NSWCCA 46 at [86] - [87].
54. [87].
55. Section 16A(2)(a) and (k).
56. Sharma v R [2017] NSWCCA 85 at [63]; FL v R [2020] NSWCCA 114 at [59] - [60].
57. Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54.
58. R v Delcaro (1989) 41 A Crim R 33 at 38.
59. Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518.
60. R v Hawkins (1989) 45 A Crim R 430 at 435.
61. Lai v R [2021] NSWCCA 217 at [79] - [80] per Bellew J, Bathurst CJ and Simpson AJA agreeing.
62. [36]; AB 1560.
63. See for example the testimonial of Hadi Elzein at AB 1579 and the testimonial of Fatima Elzein at AB 1581.
64. R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] - [59].
65. [46]; AB 1642.
66. See generally Van Zwam v R [2017] NSWCCA 127 at [6].
67. Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
68. Xiao at [69].
69. AB 397 - 399.
70. R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212 at [47] per RS Hulme J.
71. AB 1577 - 1591.
72. [29]; AB 1559.
73. [53]; AB 1563.
74. [57]; AB 1563.
75. [69]; AB 1566.
76. [25]-[29].
77. [67]; AB 1565.
78. [68]; AB 1565.
79. [46]; AB 1642.
80. [12]-[24].
81. Annexure C to the Affidavit of Ms Lopez.
82. Aboud v R [2021] NSWCCA 77 at [84] - [92].
83. [2015] NSWCCA 38; (2015) 257 A Crim R 33 at [45].
84. [2011] SASCFC 134 at [45].
85. AB 397 - AB 399.
86. Written submissions of the Crown on sentence at [173]; AB 1817.
87. [46]; AB 1642.
88. [30]; AB 1559.
89. R v Amati [2019] NSWCCA 193 at [120] and the authorities cited therein.
90. Criminal Appeal Act 1912 (NSW) s6(3).
91. [45]; AB 1642.
92. AB 1646 - 1659.
93. AB 1617.
94. AB 1621.
95. [23]-[28].
96. [30]-[31].
97. [3]-[12].
98. [9]-[12] of the Affidavit of Ms Lopez along with the case notes in Annexure "A".
99. [12]-[20] of the Affidavit of Ms Lopez.
100. AB 1619.
101. See generally Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1987) 189 CLR 295; [1997] HCA 26.
102. [163] above.
103. [44]; AB 1885.
104. [48]; AB 1887.
105. AB 464 - 465.
106. AB 542 - 543.
107. [2021] NSWCCA 211.
108. [313].
109. At [22].
110. At [28].
111. At [38].
112. (2020) 103 NSWLR 620; [2020] NSWCA 318 at [52].
113. [2019] NSWCCA 304 at [69].
114. [127] - [128]; AB 1715 - 1716.
115. AB 321.22 to - AB 321.28.
116. See for example testimonial of Zakaria Doughan AB 1734 and Hoda Nahlous AB 1737.
117. AB 1729 - AB 1730.
118. AB 1731.
119. AB 1729.
120. AB 1730.
121. AB 1735.
122. AB 1715.
123. AB 1551.
124. AB 1727.
125. Fangaloka at [60] - [61].
126. Karout v R [2019] NSWCCA 253 at [88] per Fullerton J, Hoeben CJ at CL agreeing, Brereton JA dissenting.
127. Fangaloka at [61] per Basten JA, Johnson and Price JJ agreeing; Karout at [89] per Fullerton J.

Amendments 26 April 2022 - Order (6) made by this Court on 27 October 2021, specifying the imposition of a single non-parole period of 1 year and 11 months imprisonment commencing on 26 August 2020 and expiring on 25 July 2022, is revoked.

In lieu thereof, pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022. 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: 26 April 2022