Commonwealth Director of Public Prosecutions v Afiouny

Court of Criminal Appeal (NSW)|2014-09-04|Before: Price J, Harrison J, Garling J

Counsel: R Bromwich SC / T Muir (Appellant) B Walker SC (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Bilal Afiouny (Respondent) File Number(s): 2012/345768 Decision under appeal Jurisdiction: 9101 Date of Decision: 2014-01-23 00:00:00 Before: Finnane DCJ

Judgment 1PRICE J: I agree with Garling J. 2HARRISON J: I agree with Garling J. 3GARLING J: This is an appeal by the Commonwealth Director of Public Prosecutions ("CDPP"), pursuant to s 5D of the Criminal Appeal Act 1912, against two sentences imposed in the District Court by Finnane DCJ on 23 January 2014. 4The respondent, Bilal Afiouny, was charged with two offences. Each offence was of bribery of a Commonwealth public official contrary to the provisions of s 141.1(1) of the Criminal Code (Cth). 5The two offences involved the respondent 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 US$20,000. The bribes were paid in an attempt to circumvent border protection controls and to avoid payment of between $25 M and $27 M in customs duty and taxes. 6Mr Afiouny pleaded guilty to the offences. 7The maximum penalty for each offence was imprisonment for 10 years, and a fine of $110,000. 8In respect of each offence, the sentencing Judge imposed a sentence of 3 years 3 months imprisonment. He fixed a single non-parole period of 1 year 8 months for both offences. 9He ordered that the two sentences be wholly concurrent and that they were both to commence on 23 January 2014. The single non-parole period will conclude on 22 September 2015. The whole sentence will conclude on 22 April 2017.

Commonwealth Director's Appeal 10The CDPP appeals against the sentences that were imposed upon four grounds. They are: (1)The sentencing Judge erred by imposing wholly concurrent head sentences. (2)The sentencing Judge erred by imposing a single non-parole period of 1 year 8 months, without having regard to the provisions of Part 1B of the Crimes Act 1914 (Cth), and in particular, the requirement in s 16A to make an order of a severity appropriate in all of the circumstances of the offences, having regard to general sentencing principles. (3)The sentencing Judge erred by allowing a combined discount of 60 per cent in recognition of the respondent's remorse and contrition, guilty plea and assistance to authorities. (4)The sentences imposed were manifestly inadequate.

Facts 11An Agreed Statement of Facts was tendered to the sentencing Judge by the prosecution as part of its case. The following is a sufficient summary. 12In June 2011, the respondent, Mr Afiouny was in Indonesia. He approached an Australian Customs Officer, Mr Graham, who was providing technical training to Indonesian Customs Officers, and sought a meeting with him to discuss a "business arrangement". 13Mr Graham, and a fellow customs officer, Mr Alton, attended the meeting. At that meeting, the respondent sought their assistance to clear shipping containers through the Port Botany container terminal in circumstances where the cargo and the containers would be tobacco. The respondent offered each of the customs officers $100,000 per cleared shipping container. 14The two customs officers reported the approach. Under supervision, and pursuant to a controlled operations authority, Mr Graham continued dealing with the respondent until the respondent was arrested on 1 September 2011. 15Over that period, there were a number of telephone calls and personal meetings between Mr Graham and the respondent. Each of these contacts was lawfully recorded by either telephone intercept or listening device. 16During the controlled operation, five shipping containers, containing either cigarette sticks or else loose-leaf tobacco, were imported and cleared by Mr Graham at the request of the respondent. 17In total between 28.8 million and 31.8 million cigarettes sticks were imported. As well between 35,754 kg and 38,754 kg of loose leaf tobacco was imported. It was agreed that no less than $25.34 M was the total duty owing on these imports, and which it was sought to evade. 18On six separate occasions, the respondent paid Mr Graham a total of $352,090 and US$20,000 for his "work" in facilitating the clearance and release of the shipping containers. 19Based upon these facts, two rolled up charges were brought. The first charged the respondent with bribes paid on five occasions totalling $172,090. The second charge concerned the payment of two bribes on one occasion comprising $180,000 and US$20,000. 20The first charge related to containers being smuggled into Australia for the respondent's own benefit. The second charge related to a container which was being smuggled into Australia by a friend of the respondent. The respondent had no financial interest in this importation. 21Each offence carried a maximum penalty of 10 years imprisonment or a fine of 10,000 penalty units or both.

Remarks on Sentence 22His Honour, at the outset, noted the agreement between the Crown and defence counsel, that the respondent "... cannot be regarded as a principal in the smuggling operation". However, the basis of this agreement is not apparent and the comment seems to be erroneous. The Crown's written submissions to the sentencing judge contended for a finding that the respondent was a principal. His Honour referred specifically to that submission, and went on to make a finding that the respondent "... was a principal in the enterprise and that he stood to make significant money from it". The respondent was sentenced on this basis. No complaint is made in this Court about that finding. 23The sentencing Judge rejected the case advanced by the respondent that his meeting with the customs officer in Indonesia was an unplanned event. Rather, his Honour was satisfied that the respondent's conduct was part of a well thought out plan, the aim of which was to induce the officers, by means of the bribe, to be part of a "... long term conspiracy to defraud the revenue". This finding is consistent with the finding that the respondent was a principal in the offending. 24In reaching this conclusion, and in dealing generally with the respondent, his Honour also noted that in 2007, this Court in civil penalty proceedings had found that the respondent had knowingly participated in a previous episode of smuggling of tobacco into Australia with the intention of defrauding the revenue. He was found guilty of evading the payment of proper duty, and fined a total of $1.75 M. An order was made for the payment of the legal costs of those proceedings. 25His Honour expressed the view that whilst this was not a criminal conviction, he could, nevertheless, have regard to the fact that the respondent had previously engaged in similar conduct. 26With respect to the respondent's subjective case, his Honour noted that the respondent had indicated an intention to plead guilty to the charges at an early point in time and, accordingly, without submission to the contrary from the Crown, afforded the respondent a 25 per cent discount from any sentence for the utilitarian value of his early plea. 27His Honour considered and rejected as being of no weight, matters relating to arguments of hardship and health advanced by the respondent. His Honour did not regard the respondent as a man of previous good character, however, he did accept that the respondent had engaged in good works dealing with refugees and others in Africa. His Honour found that this indicated a likelihood that the respondent would be successfully rehabilitated. 28Of particular importance was that the sentencing Judge had accepted that the respondent had shown remorse and contrition in a practical way by assisting authorities. His Honour described the fact that the respondent had given significant assistance to the authorities with respect to matters not directly related to the importations and payment of bribes, but to importation of tobacco generally. The respondent took part in a controlled operation - thereby exposing himself to considerable danger in so doing. His Honour noted that the respondent had offered to help in the future. 29His Honour concluded that it was appropriate to discount any sentence which he imposed by a total of 60 per cent to take account of the respondent's remorse and contrition, that he pleaded guilty at the first opportunity and facilitated the course of justice by providing information to bring serious offenders to justice. His Honour noted that this was above the level of discount usually granted. 30His Honour concluded that so far as the offences were concerned, it was necessary for the respondent to serve a full time jail sentence in order to adequately punish the respondent for his involvement in "... a very serious crime". 31His Honour assessed the seriousness of the criminality in this way: "There is no doubt that bribery of a Commonwealth official is a very serious crime, particularly when it is directed to getting the official to involve himself in an even more serious crime and the courts must be seen to be acting to deter such conduct." 32His Honour then proceeded to impose the sentence, which I have set out above at [ REF _Ref397002817 \r \h 8]. In imposing the sentence, the sentencing Judge commenced with a notional head sentence of 8 years. He then proceeded to apply the discount of 60 per cent, which he had earlier determined was appropriate. The single non-parole period represented about 50 per cent of each of the head sentences.

Ground 1: Error in Complete Concurrence 33In his sentencing remarks, when considering the question of whether the sentences should be made wholly concurrent, his Honour said: "It is appropriate in my opinion to make both sentences concurrent since the offences are linked." 34The Director submitted that this statement constituted an error of principle because the mere linkage of two or more offences is not an appropriate or principled test for imposing wholly concurrent sentences. The Director submitted that even if this was a correct statement of principle, upon the facts and circumstances of this case, the application of such principle was erroneous. 35The Director submitted that the offences fell into two categories, there was a distinct difference in the criminality, the offences had separate conduct with a separate focus, and therefore the sentencing Judge should have concluded that it was not appropriate for the sentences to be wholly concurrent. 36The respondent submitted that the trial Judge made no error in making the sentences wholly concurrent. The respondent submitted that the difference relied upon by the Director to distinguish the offences, namely, whether the respondent was himself conducting the importation as a part of the syndicate, or else was engaged in the offence of bribery for the purposes of others to achieve a successful, but unlawful, importation of a container of tobacco, was an illusory difference. The respondent contends that having regard to the period of time over which the offences were committed, the similarity of the offences, the identities of the individuals involved in the offences, and that the offences were essentially a part of a single course of conduct, it was wholly within the discretion of the sentencing Judge to make the sentences concurrent. 37There is no general rule which determines whether sentences ought to be imposed concurrently or consecutively. What is necessary is that the sentencing Judge applies the principle of totality of the criminality involved for which the offender is being punished: see Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J; R v MMK [2006] NSWCCA 272; (2006) 165 A Crim R 481 at [13] per Spigelman CJ, Whealy and Howie JJ. 38In R v Knight [1981] 26 SASR 573, the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in their joint judgment at p.576: "... it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in Reg v Faulkner (1972) 56 Cr App R 594 at 596: 'At the end of the day, as one always must, one looks at the totality and asks whether it was too much.' " 39As the High Court recognised in Mill v R [1988] HCA 70; (1988) 166 CLR 59 at [8]: "Where the principle [of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 40It can be seen that it is difficult to consider this ground separately from the fourth ground of appeal, namely that the sentence was manifestly inadequate. 41However, it is appropriate to note that whilst the two charges charged similar offences, there were, in my view, material factual differences between them, and subject to an appropriate consideration of the overall length of the sentence, those differences were such as to call for the sentences imposed to be cumulative rather than wholly concurrent. 42However, as I have explained, the real issue, namely whether the sentence imposed reflected the totality of the criminality involved, is best considered with respect to Ground 4.

Ground 2: Part 1B of the Crimes Act 1914 (Cth) 43The Director submits that the single non-parole period imposed of 1 year and 8 months in the particular circumstances demonstrated that the sentencing Judge imposed a non-parole period which failed to reflect the provisions of s 16A(1) of the Crimes Act 1914 (Cth) in that the sentencing which was passed was not one "... of a severity appropriate in all of the circumstances of the offence". 44The submission of the Director concentrates with respect to this ground on the non-parole period of the sentence, and is seemingly encapsulated in this way: "The final result arrived at of a single non-parole sentence of 1 year and 8 months imprisonment as the period to be served by the respondent, was not a sentence of a severity appropriate in all the circumstances for the two discrete bribery offences. Given the grave offending involved, it is low enough to shock the public conscience." The last phrase seems to adopt the words used in the decision of this Court in R v Gallagher (1991) 23 NSWLR 220 at 232 per Gleeson CJ. 45Again, as this submission unfolds, it is clear that it is really to be regarded as a particular of the Director's argument raised in Ground 4, that the sentence is manifestly inadequate. It can be fully and conveniently considered under that ground.

Ground 3: Excessive Discount for Assistance 46As has earlier been indicated, the trial Judge allowed a discount of 60 per cent by way of recognition of the utilitarian value of the early plea of guilty, and also in recognition of the assistance that the respondent gave to authorities. 47Before the sentencing Judge, it was clear, and accepted by the prosecution, that the respondent had pleaded guilty at an early stage, had co-operated with the authorities and had promised to provide further assistance to the authorities in the future. 48These were matters that the sentencing Judge was specifically required to take into account: s 16A(2) Crimes Act. 49The Director accepted that whilst there was no range of discounts set by statute, and the determination of what discount is appropriate is a matter within the proper exercise of a sentencing Judge's discretion, nevertheless, he submitted that a review of authorities suggested that discounts are customarily in the range between 20 per cent and 50 per cent, and any discount in excess of 50 per cent would be exceptional. 50The Director drew attention to the judgment of this Court in SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249. In that case, Buddin J (with whom Simpson J agreed), said: "53. However, in light of the authorities to which I have referred ... it is my opinion that a combined discount exceeding 50 per cent should be reserved for an exceptional case." 51Earlier in the judgment, Howie J (with whom Simpson J also agreed), said: "3. ... having reconsidered the matter I do not recant from my view that in general a combined discount for pleas of guilty and assistance should be given and that such a discount should not normally exceed 50 per cent." 52However, his Honour went on to make the following observations: "5. But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see e.g. R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must 'accord with the general moral sense of the community': R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large." 53In SZ reference was made to the decision of this Court in R v Sukkar [2006] NSWCCA 92, where Latham J (with whom McClellan CJ at CL and Howie J agreed) said: "The gravamen of the Crown's complaint on this appeal resides in the quantification of a composite discount of 45 per cent in order to take account of the respondent's plea of guilty and his assistance to authorities. ... While there is no fixed tariff for assistance to the authorities, discounts customarily range between 20 per cent and 50 per cent. There have been comparatively rare cases where a discount in the order of 55 per cent or 60 per cent has been given. Generally speaking however, a discount of 50 per cent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender." 54The Crown accepted that the assistance provided constituted a substantial mitigating factor and entitled the sentencing judge to reduce the sentence that would otherwise have been imposed. The Crown however submitted that the discount was excessive with the result that the sentence imposed fell below one which was required to denounce the crime. 55The respondent submitted that the Crown had conceded before the sentencing Judge that the assistance provided would be valued by the sentencing Judge as "... being at the very high end of the range". The respondent further submitted that the Crown had conceded that a discount of "around about 50 per cent" would be in order. As well, the respondent pointed to the remarks of the sentencing Judge with respect to assistance and submitted that having regard to all of those factors, it could not be said that a discount of 60 per cent was outside the range properly available as a matter of discretion to the sentencing Judge. 56It was submitted that the combined discount was reasonably proportionate to the criminality involved. 57In considering these competing submissions, it is necessary for the Court to consider the nature and extent of the assistance provided. I have done so. In my view, the concession made by the Crown described in [ REF _Ref397003163 \r \h 55] and [ REF _Ref397003164 \r \h 56] above, is an adequate, but short, description of the assistance provided. Any more detailed description in these reasons would be inappropriate and unnecessary. 58In my opinion, in all of the circumstances of this case, the early plea of guilty and the discount provided for assistance to the authorities did not warrant at 60 per cent discount. Such a discount is, in the circumstances of this case, excessive. The respondent's assistance, whilst it may be categorised as assistance of a high order, when combined with his early plea of guilty, merited no more than a discount of 50 per cent. 59It was, in my view, an error on the part of the sentencing Judge to determine the discount in the amount which he did. 60I would propose that this ground of appeal be upheld.

Ground 4: Manifest Inadequacy 61The Director argued that the sentence imposed was manifestly inadequate in all of the circumstances, and that it did not reflect the seriousness of the offences to which the respondent pleaded guilty. 62The first two grounds of appeal are really to be seen as particulars of the complaint by the Director that the sentence is manifestly inadequate. As the Director's submissions put it: "The sentences ultimately imposed on the respondent fall outside the range of sentences that could reasonably have been imposed, manifesting error either upon one or more of the bases outlined in the submissions in relation to the first three grounds of appeal which are also relied upon to explain the asserted manifest inadequacy of the sentences imposed, or some other error an otherwise unknown or unidentifiable kind in the exercise of the learned sentencing Judge's discretion." 63Shortly put, the Director submitted that a sentence in which the respondent served only 1 year and 8 months as a non-parole term for the serious offences to which he pleaded guilty did not recognize the seriousness of the criminality involved, nor did it act as any form of deterrence for the respondent, or any others who may be tempted to engage in similar conduct. 64The Director accepted that whilst a discount was properly to be allowed as a result of the early plea and assistance given by the respondent to authorities, the Director submitted that the sentence which was imposed was one which: "is so far out of touch with the circumstances of the particular offence and the particular offender that ... it constitutes an affront to community standards". See R v Gallagher (1991) 23 NSWLR 221 at 232 per Gleeson CJ (Meagher JA and Hunt J agreeing). 65In oral submissions, senior counsel for the respondent conceded that the sentence imposed may be described as being towards the lenient end of the range of appropriate sentences. However, he submitted that by reference to the starting point of the sentence before discount, it could not be said that where a judge commenced the consideration of an appropriate sentence at 80 per cent of the maximum term of imprisonment available, and proceeded conventionally to take into account and allow for factors which were both aggravating and mitigating circumstances, that the result ought be regarded as being outside the range of legitimately available sentences. 66I am unable to agree with senior counsel for the respondent. 67Whilst the process through which his Honour went, ensured that he took into account all of the relevant factors to which regard ought properly be had, and it can fairly be said that his starting point for a consideration of the offences was not at all unreasonable, I am left with the clear view that the point at which he ended up was so low as to fall outside the reasonable range of appropriate sentences. It was manifestly inadequate. 68Simply put, the respondent was a man with a history of engaging in the illegal importation of tobacco for the purpose of avoiding the appropriate duty and tax. He had been brought before this Court on one previous occasion, and been found to have committed an offence against the Customs Act. A significant monetary fine was imposed. 69In the circumstances here, he set about a deliberate course of conduct, as a principal, of attempting to enrich himself by importing illegal tobacco in various forms, in large shipping containers facilitated by the bribing of customs officials and thereby intending to avoid the payment of customs duty. His only motivation was greed. 70He undertook these importations on more than one occasion. Indeed, he paid bribes on seven occasions. The total of the bribes involved was a significant monetary sum. They were many times the annual salary of a customs officer. But for the fact that the two customs officers with whom he engaged were decent, honest and law abiding officials who reported the approach immediately to their superiors, the pernicious nature of the offending may have gone undetected with a less than robust customs officer. Indeed, for some customs officers, entirely understandably, the lure of such riches would be hard to resist. 71The seriousness of the offending cannot be understated. In response, the subjective case to which reference has been made, was important but not so compelling as to warrant anything less than a condign punishment. 72A proper discount for assistance needed to be given, an excessive discount was given, and in order to ensure a sentence which reflected the seriousness of the offence, it was necessary that the sentences be accumulated. There was no accumulation applied. 73In the end result the sentence is manifestly inadequate. I would propose that the appeal be upheld on this ground.

Residual Discretion 74It is well accepted that the primary purpose of appeals by the Crown, or here, the CDPP, against sentence under s 5D of the Criminal Appeal Act 1912, is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. This Court has in the exercise of its jurisdiction under s 5D a residual discretion to decline to interfere with the sentence even though it is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 465-466 [1]-[2]. 75However, in considering the exercise of the residual discretion, including in appeals dealing with Commonwealth offences, the Court is not to have regard to any element of double jeopardy involved in the respondent being sentenced again: s 68A Crimes (Appeal and Review) Act 2001; Green at [24]-[26]; Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638. 76Hence, although as I am persuaded, the CDPP has established error with respect to the grounds of appeal, consideration needs to be given to whether, in the exercise of the residual discretion, the appeal ought nevertheless should be dismissed. 77I do not think that the Court should exercise its residual discretion in this case. The sentences which were imposed by the sentencing Judge, and in particular the single non-parole period, do not reflect proper attention to the seriousness of the offending, nor to the important role of general and specific deterrence in the circumstances of this case. In the result, in my opinion, the sentences imposed are so lenient that they are offensive to the administration of justice and this Court must intervene.

Re-sentencing 78It is necessary to re-sentence the respondent. 79Enough has already been said in this judgment to indicate that the objective seriousness of the offences was high. The sums of money involved were large. The respondent knew precisely what he was doing and was motivated solely by greed. Due allowance must be given for the respondent's assistance to authorities and his early plea of guilty. 80The respondent is a mature man. He was educated to Year 10, leaving school to work in the family business. He worked as the manager for his family business, which was a large Mediterranean food importation company for about 15 years. He had up to 16 employees under his care and often worked six days a week. He had a very positive work ethic. 81Since being arrested, and prior to his entry into custody, the respondent developed mental health issues and was placed on anti-depressants with psychological counselling for his well being. He attempted suicide in mid2012 by an overdose of medicine. 82Up until 2012, the respondent was married for about 12 years and is the father of four children aged between 2 and 12 years of age. In 2012, his marriage broke down. Since then he has, in the course of a relationship with another woman, fathered another child. Up until entering custody, he cared for his five children on weekends. 83He has a limited minor criminal history but, as I have said earlier, was dealt with by this Court in 2007 with respect to offences under s 233 and s 234 of the Customs Act, for which he was fined a total of about $1.75 M. 84There is no doubt the he has also done good works for a wide range of people. 85In my view, it is appropriate to commence a consideration of the proper sentence for each offence with a notional head sentence of 8 years as the sentencing Judge did. 86To those head sentences, I would apply a 50 per cent discount to recognise the respondent's early plea of guilty and his assistance to authorities. This would result in a head sentence of 4 years for each offence. 87The appropriate non-parole period for each offence, to reflect all of the facts and circumstances which are properly to be taken into account, is 2 years and 6 months for each offence. 88It is necessary to fix a single non-parole period: s 19AB Crimes Act. 89This necessarily requires the consideration of the question of accumulation or concurrence between the two offences. Unless the offences are accumulated, then the sentences would not reflect adequately the extent of the criminality involved. In my view, the period of accumulation should be 12 months. 90This means that in respect of the first count on the indictment, I would impose a sentence of four years imprisonment to commence on 23 January 2014 and to expire on 22 January 2018. With respect to the second count on the indictment, I would impose a sentence of four years imprisonment to commence on 23 January 2015 and to expire on 22 January 2019. 91I would fix a single non-parole period for both offences of 3 years and 6 months, commencing 23 January 2014 and expiring 22 July 2017.

Orders 92I propose the following orders: (a)Appeal allowed; (b)Quash the sentences imposed by Finnane DCJ in the District Court on 23 January 2014; (c)In respect of Count 1 on the Indictment, the respondent is sentenced to a term of imprisonment for four years to commence on 23 January 2014 and to expire on 22 January 2018; (d)In respect of Count 2 on the Indictment, the respondent is sentenced to a term of imprisonment for four years to commence on 23 January 2015 and to expire on 22 January 2019; (e)A single non-parole period is fixed for both offences of 3 years and 6 months to commence on 23 January 2014, and expire on 22 July 2017.

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