Al Am Ali v R

Court of Criminal Appeal (NSW)|2021-11-19|Before: Beech-Jones CJ, Davies J, Wilson J, Jones CJ

Judgment

BEECH-JONES CJ AT CL: In joining the orders made on 19 November 2021 dismissing the appeal I was satisfied that no lesser sentence was warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3)). I reached that state of satisfaction regardless of whether the consideration of whether to make an Intensive Correction Order in resentencing was determined having regard to the sentencing objectives in s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (see R v Pullen [2018] NSWCCA 264 at [86] to [89]). I otherwise agree with the reasons of Davies J.
DAVIES J: On 19 November 2021 at the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal but dismissing the appeal. Reasons were to be provided later. These are my reasons for joining in the orders of the Court.
The applicant pleaded guilty to possessing 1974 kilograms of tobacco knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for this offence is ten years' imprisonment and/or a fine (calculated in accordance with s 233BABAD(5)), which in this case was in the order of $9.8 million.
The applicant, with three others charged with the same offence and, in some cases, with additional offences, came for sentence before Judge North in the District Court on 25 February 2021. On 9 April 2021 his Honour sentenced the four offenders. The sentence imposed on the applicant was a sentence of 24 months' imprisonment commencing 11 February 2021 and expiring 10 February 2023. His Honour directed that the applicant be released at the expiration of 12 months, on 10 February 2022, upon the applicant entering a recognizance in the sum of $1,000 without surety to be of good behaviour for the balance of the term.

The offending

The following is an executive summary of the detailed facts dealing with the offending. It is taken from the sentencing judge's Remarks on Sentence (ROS). 1. In November 2017 the Joint Counter Terrorism Team, or JCTT, commenced an investigation code named Strikeforce De Haar into a Sydney-based organised crime syndicate specialising in the illicit importation and distribution of large quantities of smuggled tobacco product directed by Ahmed Masri, known as A Masri in these facts, and Nadim Kanssan hereafter Kanssan. 2. In addition to A Masri and Kanssan, the following co-accused were also identified and arrested as a result of the investigation; (a) Azeem Khan, (b) Hamad Masri, (H Masri hereafter), (c) Ali Khalil, (Khalil), (d) Alaeddine El Masri, (El Masri), (e) Ibrahim Al Am Ali (Al Am Ali), and (f) Aiman Al Khair (Al Khair). 3. The members of the syndicate included three brothers, namely A Masri, H Masri and M Masri as well as their cousin El Masri. 4. As part of the ongoing investigation, successful cross-border controlled operation authorities were issued pursuant to the Commonwealth and state legislation. Certain conduct was initiated by the JCTT investigators pursuant to the authorisations including the deployment of undercover police officers, (hereafter UCOs), known as UCO1, UCO2 and UCO3. 5. Between 18 July 2018 and 29 April 2019 the syndicate took part in the supply and distribution of 7,214 kilograms of molasses tobacco. The total duty evaded on the 7,214 kilograms of molasses tobacco was AUD$7,506,379.53 including GST. 6. Molasses tobacco is a syrupy tobacco mix containing molasses and vegetable glycerol which is smoked using a hookah pipe. It is usually flavoured with fruit or other flavouring. 7. The syndicate also facilitated the illegal importation of a shipping container filled with tobacco products into Australia from Dubai, (hereafter the Dubai importation). The container held approximately 475,000 packets containing 9.5 million cigarette sticks of Manchester brand cigarettes with a retail value of up to AUD$7.125 million on the Australian black market. The total duty evaded for the 9.5 million cigarette sticks was AUD$8,545,847.50 including GST. 8. The syndicate also dealt with AUD$1,323,955.51 which included the transfer of the equivalent of AUD$198,578.03 paid in US dollars into a United States bank account and the equivalent of AUD$69,981.48 paid in Euro into a Norwegian bank account. 9. The Department of Home Affairs manages the flow of legitimate tobacco products across the Australian border and collects excise duties and taxes on that tobacco. Customs import entry procedures are based on self-assessment by importers, including self-assessment of the correct classification of goods. Licences to grow tobacco are subject to strict rules and conditions and are rarely granted. At all material times there was no tobacco manufacturing occurring in Australia and there were no licences to grow tobacco for commercial sale or personal use in existence. 10. The excise payable on tobacco products changed various times during the offence period. Excise was charged: a. per cigarette stick with a tobacco content that did not exceed .8 grams; and b. per kilogram for molasses tobacco. 11. The various rates are then set out in the executive summary of the agreed facts. 12. In summary, investigations reveal that Al Am Ali engaged in the following conduct in furtherance of the possession of molasses tobacco: a. He accompanied Kanssan on 18 July 2018, 31 July 2018, 9 August 2018, 17 August 2018, and 19 September 2018 to meet with UCO1 to purchase various quantities of molasses tobacco and to transport the tobacco to various businesses in Sydney for sale; b. He accompanied Kanssan on 16 August 2018 to a meeting with UCO2 and UCO3 where he participated in a conversation regarding the ongoing purchase of large quantities of molasses tobacco and the methodology for payment; c. The total duty evaded by Al Am Ali in relation to the 1,974 kilograms of molasses tobacco was $1,970,512.32 and $197,051.22 GST; and d. Al Am Ali was arrested on 21 May 2019 and taken to Liverpool Police Station where under caution he participated in an Electronic Record of Interview where he made the following admissions: (i) He and Kanssan were friends and he had met Kanssan at a coffee shop when he first arrived in Australia from Lebanon; (ii) He worked for CBD Couriers in 2017 but could not recall whether he was employed by them in 2018; and (iii) He leased the Volkswagen van with a NSW registration with the decals "CBD Couriers By Demand" from a friend but he could not afford the $500 lease and therefore returned the van to his friend shortly after.

The sentence proceedings

The Crown provided detailed written submissions which included the provision of a substantial table of comparative cases. Written submissions were provided by counsel for each of the other offenders but not on behalf of the applicant. Each of the counsel for the offenders made oral submissions, followed, in each case, by oral submissions in response by the Crown.
In the Crown's written submissions, the Crown submitted that the only appropriate sentence for three of the offenders including the applicant was a term of full-time imprisonment. In relation to one of the offenders, Mohamad Masri, the Crown submitted that a sentence of imprisonment was appropriate, but did not oppose a submission that a full-time custodial sentence was not the only appropriate penalty for that offender.
In a section of the Crown's submissions under the heading "Setting the sentence", the Crown said this: 87. By virtue of s 20AB(1) of the Crimes Act, additional sentencing alternatives available under the law of a participating State may be imposed in respect of a person convicted of a federal offence. These include a community service order and intensive corrections (sic) order.
In his oral submissions, counsel for the applicant said this: Your Honour taking all the factors into account, we would submit that with this offender, a sentence of the most appropriate severity in all the circumstances is not one of further full-time custody, but one in the order of a sentence of an intensive corrections (sic) order with strict conditions. Only in unusual circumstances would a custodial sentence not be justified. An intensive corrections order gives full and proper weight to this consideration as well the appropriate weight to the other sentencing considerations whilst still being at an appropriate severity. General deterrence is given real weight by dint of the period of time in custody already served coupled with an intensive corrections order being a sentence of custody but one that is geared towards community based rehabilitation as well as punishment. It is still a very real sentence and a very real punishment. Those will be the submissions for this offender subject to anything specific.
Both in his written and oral submissions, counsel for Ali Khalil, another of the offenders, submitted that an intensive correction order (ICO) would be appropriate for his client, and counsel for Mr Masri made a similar submission in his written submissions.

Remarks on Sentence

Having set out the facts relating to the offending, his Honour then considered the roles of each of the offenders to make findings of objective seriousness. In the case of the applicant, his Honour found that he was an active and trusted participant in regard to the tobacco products, he was more than a driver or passenger, and that the objective seriousness of his offence fell midway between midrange and low range for an offence of this type.
His Honour next dealt with subjective aspects in relation to each of the offenders, and then dealt with issues of parity. Finally, his Honour dealt with the sentence to be imposed upon each of the offenders.
Earlier in his ROS, his Honour had noted the Crown's submissions that the only appropriate sentence for the offenders, Ali, Khalil and Kanssan was full-time imprisonment, and in relation to Mr Masri, his Honour noted that the Crown said that there might be alternatives to full-time custody.
The sentencing judge said, in relation to all of the offenders: A Court may only pass a sentence of imprisonment on a person for a federal offence if, having considered all other available offences [scil. sentences], it is satisfied that no other sentence is appropriate in all the circumstances: s 17A(1) Crimes Act.
When his Honour came to sentence the applicant, he said this: In the light of the gravity of the Customs Act 1901 of the Commonwealth offence to which the offender has pleaded guilty, I have formed the view that no other penalty but imprisonment will suffice. I have had regard to the matters set out in s 16A and note the seriousness of this offence in which the offender was involved for some two months and attended on no less than five occasions and was clearly a trusted confidante of Mr Kanssan. In respect of the commission of that offence, I accept that the offender by his plea of guilty has shown contrition and will, as said, allow him a 25% reduction for that plea. The sentence is designed to adequately punish him and to have a deterrent effect upon him and others. I have considered all those matters personal to the offender which I have already set out above. The offender is capable of rehabilitation and I have considered the probable effect on his family.

Applicant's submissions

The applicant submitted that the sentencing judge made no reference to any submissions made by his counsel and, in particular, made no reference to the submission made in relation to the imposition of an ICO.
The applicant drew attention to what had been said by this Court in Blanch v R [2019] NSWCCA 304 and Wany v DPP [2020] NSWCA 318. He submitted that in the light of the submissions made on his behalf, the sentencing judge was required to consider the manner in which the sentence of imprisonment should be served.
The applicant submitted that when his Honour should have been considering whether an ICO should have been made, he was obliged to consider the terms of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ( "the Sentencing Act") .
The Crown conceded that error occurred, and that the ground of appeal had been made out, particularly in the light of this Court's decision in Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246.

Determination

In Mourtada v R [2021] NSWCCA 211, Basten JA discussed the extent to which the provisions of Part 1B of the Crimes Act 1914 (Cth) pick up the procedural requirements of the Sentencing Act in relation to the imposition of an ICO. His Honour identified some difficulties at [16], but in relation to the requirement to apply s 66 of the Sentencing Act in deciding whether to make an ICO, he said at [20]: Ground 1 in the notice of appeal alleged that the judge failed to apply s 66 when deciding whether to make an ICO. The ground assumed that, in picking up the power under State law to impose such a sentence, s 20AB also picked up procedural steps governing the operation of the State provision. The Director did not challenge that assumption and it should be accepted. There is then a factual question as to whether the judge had regard to the considerations set out in s 66.
A similar view was taken by the Crown in the present case. In the absence of detailed argument about whether the requirements of s 66 are picked up where an ICO is being considered for a Commonwealth offence, it should be accepted for present purposes, in the light of the Crown's approach, that the sentencing judge was required to consider the matters identified in s 66 if he had been contemplating making an ICO.
In Mourtada, the sentencing judge gave consideration to whether an ICO should be imposed; he simply made no mention of s 66 when reaching his decision about the matter. The issue in the present case involves an anterior error; despite submissions made on the applicant's behalf about the imposition of an ICO, the sentencing judge made no reference to that in his ROS.
In Abbas Elzein, Bellew J said (Bell P and Walton J agreeing): [325] 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. [326] 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, 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. [327] In making those observations, McCallum JA made reference to the judgment of Campbell J in Blanch v R 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. [328] 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.
Precisely the same position obtains in the present case. The sentencing judge failed to engage with the submission of the applicant's counsel that consideration should be given to an ICO. In that way, it follows that no consideration was given to the requirements of s 66 of the Sentencing Act.
Accordingly, the ground of appeal is made out, and the Crown's concession in that regard is properly made.

Resentencing

The applicant submitted that, bearing in mind the time the applicant has spent in custody pending the hearing of the appeal, any further sentence of imprisonment should be served in the community by way of an ICO.
The Crown submitted that there was no challenge to the factual matters found by the sentencing judge, and that regard should be had to those findings in the resentence exercise. The Crown submitted that parity was a relevant consideration.
In resentencing the applicant the Court is required to consider the matters in s 16A of the Crimes Act.

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

The course of conduct - s 16A(2)(c)

The nature and circumstances of the offending and the course of conduct have been set out above. The following matters are significant: (a) The applicant accompanied Kanssan on five occasions in just over two months to meet with UCO1 to purchase various quantities of molasses tobacco; (b) He also accompanied Kanssan on another occasion to meet with UCO2 and UCO3 where he participated in a conversation regarding the ongoing purchase of large quantities of molasses tobacco and the methodology for payment; (c) He transported the tobacco to various businesses in Sydney for sale; (d) The total duty and tax evaded was over $2million; (e) He was present when either Kanssan or Khalil handed over cash payments to UCO1; (f) He provided a van that he leased from a friend to transport the smuggled tobacco on four of the five occasions the molasses tobacco was collected;
I agree with the sentencing judge that the applicant was an active and trusted participant in regard to the possession of the tobacco products. I consider that the objective seriousness of the offending falls midway between mid range and low range.

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

The amount of duty evaded was $1,970,512.32 and GST of $197,051.22.

Contrition - s 16A(2)(f)

Although the applicant did not give evidence at the sentence proceedings, I am prepared to find that he is remorseful in the light of what he said to the psychologist Mr Chafic Awit, and Mr Awit's assessment of him in that regard.

Plea of guilty - s 16A(2)(g)

The plea was entered at the earliest opportunity. It is appropriate in the circumstances to allow a discount of 25% for the utilitarian value of the plea.

Deterrence - s 16A(2)(j) and s 16A(2) (ja)

General deterrence is an important consideration in matters involving the defrauding of the revenue. Both the author of the Sentencing Assessment Report (SAR) and Mr Awit assessed the applicant as being a low risk for reoffending. At the time of the present offending he had no prior offences, although since the present offending he has subsequently received two separate Community Correction Orders for supplying a small quantity of a prohibited drug and for dishonestly obtaining property by deception. It would appear from what he said to Mr Awit, that these offences were committed arising out of his drug habit at the time. Specific deterrence has some importance, despite his low risk of reoffending.

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

I have already made reference to the other offences in respect of which the applicant has been convicted.
The applicant has some health problems including disc bulging and disc protrusion at the C4/5 and C5/6 level, seemingly following an accident where a lift door closed on him. I note that he also appears to have problems with sleep apnoea and hypertension.
The psychologist's report provides information about the applicant's background. He was born in Tripoli in Lebanon in 1979. Lebanon was ravaged by civil war from 1975 to 1990, and he experienced significant trauma during that time. He spent nights living underground to avoid the war. A number of people he knew including family members were killed during the war.
The applicant studied computer engineering in Lebanon and subsequently accounting in Romania. He came to Australia in 2005. His qualifications were not recognized without further study being undertaken here. Although he commenced those studies at Sydney University, he was forced to drop out because of the high cost. He has worked in various areas in Australia including cabinet making, labouring, packaging, in a company that supplied airlines with food, and in a hire car position. He sustained a workplace injury when working in packaging and eventually received a lump sum payment from the WorkCover Insurance Scheme. He subsequently worked in a car dealership and then casually as an Uber driver.
He was introduced to cocaine in 2016 shortly after receiving his lump sum payment for the work injury. He became addicted quite quickly, and his use of it continued until his arrest for the present offending in May 2019.
Relations with his wife became strained when he was not working because of his work injury. He then had to admit to his wife that he had spent more than half of his lump sum payment on illicit substances. He eventually lost all his money and became heavily in debt due to his addiction.
He married his wife in 2006 and they separated at the end of 2017. They have three children. When he was released from custody in July 2019 he returned home. The relationship was initially strained but then began to improve.
Mr Awit diagnosed the applicant as suffering from extremely severe depression and extremely severe anxiety in the lead up to the period of the offending. That assessment was made on the basis of the Depression, Anxiety Stress Scale 21 (DASS21). Mr Awit said that those results were consistent with a diagnosis on the DSM-5 of Generalised Anxiety Disorder and Major Depressive Disorder. Mr Awit considered that there was a psychological link between the applicant's condition and the offence for which he was sentenced. That link came from his ongoing impaired decision-making ability during the period of the offending.
The applicant told the author of the SAR that his main motivation in becoming involved in the offending was to supplement his income and to fund his drug habit.
I have also noted the affidavit of his wife which generally referred to his position as her husband and the father of their children. She made reference to his workplace injury and to the subsequent growing apart between them which led to their separation. She spoke very positively of his relationship with the children, although noting that that was affected during the time when it is apparent he was heavily involved in the use of illicit drugs.

Prospects of rehabilitation - s 16A(2)(n)

Mr Awit proposed a treatment plan involving cognitive behaviour therapy and drug counselling. Mr Awit said that if the treatment plan was followed it should greatly assist with the applicant's rehabilitation. Taking that into account and also the insight which the applicant appears to have into his drug use and offending, disclosed in both the SAR and the psychologist's report, I consider that his prospects of rehabilitation are reasonable.

Sentence

In sentencing for a Commonwealth offence, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. The applicant was involved in organised criminal activity and in doing so committed a serious offence. His role was a significant one, and he involved himself for the purposes of supplementing his income and funding his drug habit. No sentence other than a sentence of imprisonment is appropriate.
I would not alter the sentence of imprisonment for two years imposed by the sentencing judge. The question is whether, in all the circumstances, that sentence should be served in the community by an ICO.
In my opinion, a combination of factors tells against that course. First, the applicant is due to be released on a recognizance in less than three months. Secondly, any ICO imposed could not extend beyond the date of the existing sentence, which is only 15 months hence. Associated with that consideration is that it is necessary for an assessment report to be obtained, and evidence obtained from a Community Corrections officer, before a final decision can be made about the imposition of an ICO: s 69 of the Sentencing Act. The existing SAR, being nine months old, would need to be reviewed. The Court is aware that such reports ordinarily take a minimum of six weeks.
The result would be that if an ICO was to be imposed, that sentence could not be imposed prior to February 2022, and in those circumstances the period of the ICO would be limited to 12 months or thereabouts. Although a sentence of 12 months imprisonment (however served) would be entirely inadequate, I accept that where an offender has already served a period of fulltime custody, the length of the sentence to be served by way of an ICO may be reduced to take account of the time served: Mandranis v R [2021] NSWCCA 97 at [55] to [62]; R v Edelbi [2021] NSWCCA 122 at [80].
Finally, and significantly, in circumstances where the applicant is being released on a recognizance on 10 February 2022, the imposition of an ICO would be a more severe punishment than has already been imposed. On the other hand, no basis is shown for bringing forward the date the applicant is to be released on a recognizance. Nor was such an outcome suggested on behalf of the applicant.
In all the circumstances, no lesser sentence is warranted than was imposed on the applicant by Judge North on 9 April 2021.
WILSON J: I joined the orders earlier made by the Court for the reasons expressed by Davies J. I also agree with the further observations of Beech-Jones CJ at CL.

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: 01 December 2021

(Criminal Appeal Act 1912(NSW)

Crimes Act 1914(Cth)s 16A

Customs Act 1901(Cth)s 233BABAD

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Cited By (3)