Afiouny v R [2017] NSWCCA 23 | Case summary

Afiouny v R [2017] NSWCCA 23 | Case summary | Zoe

Judgment

HOEBEN CJ at CL: Offence and sentence The applicant was sentenced on 12 June 2015 after pleading guilty to one offence against s 135.1(5) of the Criminal Code for dishonestly causing loss to the Commonwealth in relation to the illicit importation of tobacco on three different occasions. The maximum sentence for this offence is imprisonment for 5 years.
The sentence imposed by Arnott SC DCJ (as subsequently adjusted on 17 May 2016) was imprisonment for 20 months, commencing 23 July 2017 and expiring on 22 March 2019, with a single non-parole period to commence 23 January 2014 and to expire on 22 March 2018.
The reason for the non-parole period being in that form was that the applicant was already serving a sentence imposed by the Court of Criminal Appeal (Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176) as follows: 1. In respect of count 1 a term of imprisonment for 4 years to commence 23 January 2014 and to expire 22 January 2018. 2. In respect of count 2 a term of imprisonment for 4 years to commence 23 January 2015 and to expire 22 January 2019. 3. A single non-parole period for both offences of 3 years and 6 months to commence 23 January 2014 and expire 22 July 2017.
The two offences in respect of which the applicant was re-sentenced by the Court of Criminal Appeal were each an offence of bribery of a Commonwealth public official contrary to s 141.1(1) of the Criminal Code. The maximum penalty for this offence is imprisonment for 10 years.
The applicant seeks leave to appeal from the sentence imposed by Arnott DCJ. The grounds of appeal relate to the non-parole period.
The applicant relies upon the following grounds of appeal. Ground 1 - The learned trial judge erred in law and in the exercise of his discretion in fixing a total non-parole period which did not afford a sufficient parole period to accord with the principles applicable to sentences for Commonwealth offences. Ground 2 - His Honour failed to give any or adequate reasons for fixing such a non-parole period. Ground 3 - The sentence was manifestly excessive. Factual background
The two offences dealt with by the Court of Criminal Appeal involved the applicant paying seven bribes to a Customs official in the period 6 July 2011 to 29 August 2011. The total amount of the bribes was $352,190 and $US20,000. The bribes were paid in an attempt to circumvent border protection controls and to avoid payment of between $25 - $27 million in customs duty and taxes on tobacco imported into Australia. The applicant pleaded guilty to those offences.
In fixing the sentence which it did, the Court of Criminal Appeal took as its start point for each offence, a sentence of 8 years and applied a 50% discount for the applicant's early plea of guilty and his assistance to authorities which the Court characterised as assistance of a high order. The sentences were partially cumulative.
In relation to the offending for which Arnott DCJ imposed the sentence under consideration (the instant sentence), it is not necessary to set out the detail of the applicant's involvement given the narrow issue raised by the grounds of appeal.
The offence arose from the applicant participating in various ways in smuggling three containers of cigarettes or tobacco into Australia between April and June 2013.
The first importation of cigarettes arrived in a shipping container in Melbourne on the evening of 4 May 2013. The shipping documents contained false details. The importation was successful and as a result, the exact amount of cigarette product imported was not able to be determined with precision. The estimate accepted in the sentence proceedings was that the loss to the Commonwealth was approximately $3.5 million in duty.
Preparations for the first importation commenced in late April 2013 with the applicant providing advice to other persons who were more directly involved in a "hands on" role. During the period the applicant maintained regular contact with these persons by way of mobile phones. The applicant received a substantial sum of money for his participation in this importation.
Following that successful importation, on 24 May and 14 June 2013 two importations of legitimate goods were made into Melbourne from Malaysia as dry runs. Each was a container of rubber purportedly sent, according to the bill of lading, by ASP Rubber Industries (Vic) Pty Ltd. The same method was used to do this as was used in the first successful importation.
On 17 June 2013 a container arrived in Melbourne purportedly sent from Indonesia by Beeda Imports and Exports Distribution (Beeda), a Victorian company. This container was later seized by authorities and found to contain frozen tobacco. Had the importation been successful, it would have resulted in lost revenue to the Commonwealth of $10,723,262 including GST. There were 35 pallets of manufactured tobacco in a frozen state. The applicant was an active participant in that importation.
On 23 June 2013 the last container arrived in Melbourne purportedly sent from Malaysia by a legitimate company. Had the importation been successful, the import duty and GST payable would have amounted to $3,509,253.
On 20 June 2013 the applicant's co-offenders were arrested in Victoria and on 24 June 2013 the applicant was arrested in New South Wales. Sentence proceedings
His Honour found that the applicant's role was a significant one but that he performed the function of an adviser providing telephone advice to the principals to the importation. His Honour declined to find that the applicant was a principal in the importation and that he was involved in the selling and distribution of the second and third importations. His Honour accepted that if the applicant had not participated in the importation it would not have proceeded as smoothly as it did.
In relation to the seriousness of the offending his Honour found that the applicant had played a significant role in a sophisticated and concerted scheme to circumvent border protection and to smuggle tobacco products into Australia. This included: 1. Facilitating the submission of paperwork to customs brokers to enable the clearance of the importation. 2. Facilitating payment to customs brokers. 3. Advising and in the case of importation one, instructing his co-accused to carry out various tasks (e.g. collecting containers upon clearance). 4. Advising and assisting his co-accused in relation to various aspects of the importations. 5. Obtaining updates about the importations as they progressed through the customs clearance process. 6. Making arrangements for the importations. 7. Providing warnings to his co-accused about maintaining vigilance in order to avoid detection of the first imported container by authorities. 8. Travelling to Melbourne in anticipation of the arrival, unpacking and subsequent distribution of the first container. 9. Enlisting the assistance of an inside contact (who charged a fee) to assist with clearing the second importation and obtaining information about the container.
His Honour found that the offending involved a continuous course of conduct of a same or similar character spread over a six week period in which the applicant participated in the importation of five containers, two of which were dry runs, to gauge the level of interest of the authorities in relation to particular consignees or deflect interest from the future genuine shipments. The scheme involved talking in code, using false identities, and using false documents to facilitate the importation.
His Honour found that the offending involved a risk of a large loss to the Commonwealth. The amount of revenue actually evaded in relation to the first container and the amounts attempted to be evaded in relation to the fourth and fifth importations amounted to approximately $17.7 million.
His Honour found that the first importation was wholly motivated out of profit, but that the other two importations had the dual motive of profit and to assist the authorities if and when it would benefit him. His Honour assessed the seriousness of the offending as falling in the middle of the range of seriousness for offences of this type.
His Honour regarded general deterrence as important for this type of offence to signal potential offenders that the financial rewards to be gained from defeating Commonwealth revenue raising would be neutralised by the risk of severe punishment. His Honour found that specific deterrence was also an important consideration.
His Honour had regard to the applicant's subjective case. He was aged 33 at the time of sentencing. His Honour was not prepared to find that the applicant was a person of good character, although he had engaged in good work assisting refugees and others in Africa. His Honour regarded this as relevant to the applicant's prospects of rehabilitation. His Honour took into account that in 2007 in civil penalty proceedings in the Supreme Court it was found that the applicant had knowingly participated in an episode of smuggling tobacco into Australia with the intention of defrauding the revenue. The applicant was found guilty of evading the payment of proper duty and fined $1.7 million. His Honour took into account that the two offences of bribing a customs officer had occurred in July and August 2011. His Honour also took into account that the present offence was committed while the applicant was on bail for those bribing offences.
His Honour noted that the applicant submitted that because he was facing sentence proceedings for the bribing offences, his primary motive for participating in the instant offence was to gain information about the smuggling operation so that he could pass this onto the authorities to get a lighter sentence. His Honour noted that the applicant had not told the police about this intention nor had he obtained a controlled operation certificate. His Honour also noted the Crown submission that it was only when the applicant was arrested in May 2013 that he claimed that he was involved to gain information for the authorities and that he had already been complicit in the successful first importation.
As indicated above, the finding by his Honour was that the applicant had a dual motive in relation to the second and third importations. That was a generous finding which considerably favoured the applicant.
The applicant did not give evidence on sentence. The evidence as to his history and background was obtained from a psychologist's report dated 7 May 2015. His Honour accepted that the applicant was educated to year 10 after which he worked in the family business which he managed for 15 years. The business had up to 16 employees and he often worked six days per week. His Honour found that he had a very positive work ethic.
His Honour accepted that since being arrested on 1 September 2011 for the bribing offences, the applicant had developed mental health problems, was on anti-depressants and was receiving psychological counselling. He had attempted suicide in mid 2012 by an overdose of medicine.
Until 2012 he was married for 12 years and had four children by the marriage. Their ages ranged between 3 and 13 years. In 2012 his marriage broke down because he told his wife about an extra marital relationship which he was having with another woman who had become pregnant by him. Since his marriage broke up, the applicant had continued the relationship with the other woman and fathered two children by her aged 3 years and 18 months respectively.
The psychologist made the following diagnosis: 1. Major depressive disorder, secondary to his current circumstances of being in custody and superimposed upon a mild but long-term form of depression due to him having alopecia universalis. (He had been diagnosed with this at the age of 14 and his light complexion accentuated the absence of bodily hair.) 2. Post traumatic stress disorder with panic attacks due to fear of perceived risks associated with assisting the authorities. 3. Back and neck pain including numbness in the legs preventing him from exercise.
Although the psychologist opined that the applicant's depression and post traumatic stress disorder would have had some effect on his judgment and impulsivity at the time of the instant offence, his Honour did not consider it appropriate to moderate the need for general or specific deterrence or that this consideration reduced the applicant's moral culpability. His Honour found that the applicant was well aware of what he was doing and that it involved illegal activity. His Honour noted that these mental health problems of modest severity were still relevant to the sentencing process.
His Honour had regard to the provisions of s 16A(1) and (2) of the Crimes Act 1914 (Cth). In addition to the matters already considered, his Honour was of the opinion that the applicant had shown contrition by his plea of guilty which was made on 15 September 2014. The plea of guilty came after six months of negotiations. Despite that delay his Honour allowed a discount of 20% for the applicant's plea of guilty.
Although there was no oral expression of remorse, his actions in assisting the authorities and plea of guilty did indicate that remorse and contrition were present. His Honour was not satisfied that these had reached the level of "being deep and heartfelt".
In relation to rehabilitation, his Honour regarded the assistance provided to refugees as a positive consideration. His Honour was concerned that the previous offending was of a similar kind. He regarded the applicant's prospects of rehabilitation as somewhat guarded.
His Honour accepted that imprisonment of the applicant would cause considerable hardship to his six children but that such hardship was not of an exceptional nature so as to mitigate his sentence.
His Honour accepted that since his arrest the applicant had provided some modest assistance to authorities which entitled him to a 5% discount on sentence. The appeal
The applicant submitted that the effect of his Honour's sentence was an overall term of 5 years and 2 months with a non-parole period of 4 years and 2 months, all to date from 23 January 2014. This represented a ratio of the non-parole period to the head sentence of 80%. The applicant submitted that while his Honour had regard to his multiple offences, he made no findings in relation to recidivism, rehabilitation or any of the other matters to which he should have had regard under s 16A of the Crimes Act. Had his Honour done so, the applicant would have had the benefit of a significant non-parole period in the order of 60-66% to enable the transition back to community life.
The applicant submitted that his Honour's approach had produced a non-parole period which was excessive and a parole period which was inadequate. The applicant submitted that even having regard to what the High Court said in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the ratio of the non-parole period to the head sentence was so markedly high for Commonwealth offences as to bespeak error, particularly since at no time did his Honour refer expressly to the principles in Power v The Queen [1974] HCA 26; 131 CLR 623; Deakin v R [1984] HCA 31; 58 ALJR 367 and Bugmy v R [1990] HCA 18; 169 CLR 525. The applicant submitted that when considering the pre-release period of custody, his Honour had failed to make an order which was appropriate in all the circumstances of the offence.
The applicant submitted that his Honour's sentencing discretion had miscarried because he failed to take into account rehabilitation principles and no adequate reasons were given for why that was not done. This had produced a sentence which was manifestly excessive. The applicant submitted that the non-parole period should be set aside and reassessed. The applicant submitted that an appropriate non-parole period, having regard to the proper application of principle, would be somewhere between 3 years 1 month and 3 years 5 months.
The applicant submitted that his Honour had not properly applied the principle of totality as set out in Mill v The Queen [1988] HCA 70; 166 CLR 59. The applicant submitted that the effect of the totality principle is to require a sentencing court which is imposing a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The applicant submitted that notwithstanding his Honour's reference to this principle in his sentence judgment, had his Honour properly considered whether the sentence was "just and appropriate" his Honour could not have arrived at a non-parole period of 80% of the head sentence without expressly stating why such a figure was appropriate. The applicant submitted that the error in the ratio identified the error in the exercise of his Honour's sentencing discretion.
The applicant submitted that such a long non-parole period with such a high ratio, when regard was had to the head sentence, could not be appropriate because such a period failed to meet the requirements of Power, Deakin and Bugmy thereby requiring that the sentence be restructured to accord with proper sentencing principles. Consideration
The applicant does not suggest that the sentence imposed by the Court of Criminal Appeal for the bribery offences was other than a proper exercise of the sentencing discretion. The effect of that sentence was a non-parole period of 3 years and 6 months with a head sentence of 5 years. The effect of the sentence imposed by Arnott DCJ in respect of the offence against s 135.1(5) of the Criminal Code was to increase that sentence so that the non-parole period became 4 years and 2 months and the head sentence became 5 years and 2 months. Taken on its own, the sentence imposed by Arnott DCJ produced a ratio of the non-parole period to the head sentence of 40%. The non-parole period suggested in submissions by the applicant is less than that imposed by the Court of Criminal Appeal and is not only contrary to s 19AD(3)(b) of the Crimes Act but would result in the applicant serving no additional prison time for the instant offence.
The above analysis demonstrates the difficulty associated with looking at the final sentence imposed when there are multiple offences involving partly cumulative and partly concurrent terms of imprisonment. In that regard, it is clear that his Honour had in mind the totality principles in Mill v The Queen when he determined the relevant head sentence and non-parole period. Because of the seriousness of the offending in the instant offence, his Honour concluded that a period in custody in excess of six months was required but being mindful of the totality principle, only modestly increased the head sentence. This was a favourable result from the applicant's point of view.
His Honour was confronted by a difficult sentencing exercise. The applicant had already been sentenced by the Court of Criminal Appeal. What his Honour had to do in relation to the serious offence before him was to impose a sentence which was appropriate for that criminality but which did not produce an excessive burden for the applicant. This was in a context where some of the matters which he had to consider under s 16A of the Crimes Act gave rise to conflicting considerations. It is also important to keep in mind that his Honour was formulating a sentence under Federal legislation which did not prescribe any standard or minimum term.
Hili v The Queen; Jones v The Queen confirmed that there was no "norm" or usual ratio between a head sentence and the non-parole period when sentencing for a Commonwealth offence. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) explained at [40] - [41] the proper approach to the determination of the minimum term of a sentence imposed under the provisions of the Crimes Act 1914 (Cth): "40 The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order. As the Court of Appeal rightly said, ss 16A(1) and (2) "make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment". In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to "make an order that is of a severity appropriate in all the circumstances of the offence". What is the "severity appropriate" is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen. 41 In the present cases, one consideration critical to the making of recognizance release orders was the determination of what was the period of imprisonment that justice required that each offender must serve in custody. And as the Queensland Court of Appeal pointed out in Ruha, again correctly, "the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody"."
That passage from Hili v The Queen; Jones v The Queen and the authorities therein cited, emphasised the need for an appropriate non-parole period which not only conferred a benefit on an offender but was also meant to serve the interests of the community (Bugmy v The Queen at 531 - 532 per Mason and McHugh JJ; 538 per Dawson Toohey and Gaudron JJ; Power v The Queen at 628 - 629 and Deakin v The Queen at 766.)
It is trite to observe that the necessary deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Given the high level of criminality involved in the instant offending, an additional 8 months added to the existing non-parole period represented the minimum period in custody which could be attributed to that offence. The addition of a further 2 months to the existing head sentence was modest and verging on the inadequate. The evidence relating to the need for rehabilitation was sparse and for the reasons advanced by his Honour, his assessment of the applicant's rehabilitation prospects was somewhat guarded given his previous offending of a similar kind.
The need for rehabilitation had to be balanced against the overarching requirement of s 16A(1) that the sentence be of a severity appropriate in all the circumstances of the offence. Given the particular matters to which his Honour referred, a parole period of a year for this kind of offending did not amount to an error which requires this Court's intervention. Once one accepts the application of the principle of totality and has regard to the objective seriousness of the offending, the additional 8 months in custody was an appropriate non-parole period. The effect of the applicant's submissions as to rehabilitation is not that the non-parole period should be reduced but that the head sentence should have been longer so as to allow a greater opportunity for rehabilitation. That it was not, favoured the applicant.
Nothing was said in Power v The Queen and Bugmy v The Queen to the contrary. In Power v The Queen the plurality (Barwick CJ; Menzies, Stephen and Mason JJ) said at 628: "To our minds no assistance towards the construction of the Act is to be had by considering the various objects of criminal punishment by treating the non-parole period as retributive and the remainder of the time served in confinement as a period of rehabilitation. Confinement in a prison serves the same purposes whether before or after the expiration of the non-parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In A true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."
In Bugmy v The Queen the plurality (Dawson, Toohey and Gaudron JJ) said at 538: "But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: See generally King CJ in Regina v Robinson. There is no incongruity necessarily involved in this approach, as Jenkinson J noted in Morgan and Morgan, when, as a member of the Victorian Court of Criminal Appeal, he said: 'The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The … minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.'"
In any event, as was made clear in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 and Lehn v R [2016] NSWCCA 255 if error was found to exist because of an inadequate parole period, it would not be a question of intervening to adjust the non-parole period. The sentencing discretion would have to be fully exercised afresh, i.e. both the head sentence and the non-parole period for the instant offence would need to be reconsidered. That exercise would be complicated by the requirement to impose a single non-parole period having regard to the sentence imposed by the Court of Criminal Appeal for the bribery offences. If it were necessary to carry out that exercise, I would impose a longer head sentence and non-parole period than that imposed by his Honour. It follows that even if the grounds of appeal were made out, this Court would not intervene.
Accordingly, the order which I propose is that leave to appeal be granted but that the appeal be dismissed.
LATHAM J: I agree with Hoeben CJ at CL.
PRICE J: I agree with Hoeben CJ at CL.

Afiouny v R

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