Khalil v R

Character references

1. The applicant tendered letters written by his mother, his fiancée, an employer and a friend. The applicant's mother stated that the applicant had assisted her in completing everyday activities in the previous few years which she found difficult due to physical ill-health (a "knee and back problem") and a mental condition (depression and anxiety). She referred to a close bond with the applicant and stated that he had been a "positive energy" in her life, encouraging her to live a healthier lifestyle, pursue further education and find employment.
2. The applicant's fiancée confirmed their plans to marry and to start a family, and her continued support of him. She expressed the view that a full-time custodial sentence would impact adversely on their relationship.
3. The employer, with whom the applicant had been undertaking an internship in the construction industry whilst on bail, spoke highly of the applicant's work ethic and ambition to pursue a career in that industry.

A forensic psychologist's report

1. The applicant tendered a report by forensic psychologist Kris North, dated 12 February 2021. Ms North assessed the applicant in person on 1 February 2021. In her report, she related the applicant's account of his background, education and employment history as follows.
2. The applicant is one of three children who were born in Australia to his parents, who are of Lebanese heritage. His family is close, stable and supportive of him, as is his fiancée with whom he had been in a relationship for two years at the time of the report.
3. The applicant attended school until Year 9, after which he pursued an apprenticeship as an electrician. He completed the practical component of his apprenticeship but not the academic component. He commenced working in the construction industry at age 18 while undertaking further studies, including a degree in construction at the University of Western Sydney which he was due to complete in mid-2021. His internship was a requirement of his course of study. He believed there would be ongoing employment available to him through the same employer upon its completion.
4. The applicant reported drinking alcohol and smoking cannabis on a few occasions when aged 16. He denied any ongoing substance use.
5. The applicant explained to Ms North how he became involved with the offences, which was recounted by her as follows: "[The applicant] … became involved after his brother-in-law (co-offender, Nadim Kanssan) asked to borrow money from him. He reported he went with his brother-in-law to purchase tobacco in July 2018 after lending him the money. [The applicant] denied any further involvement until April 2019 when he was asked by Mr. Kanssan to assist in moving boxes. He stated he agreed so as to help his family member. [The applicant] denied having received any financial advantage from the offences, stating he had not even been paid back by his brother-in-law for the original loan. When questioned as to how he felt about the offences, [the applicant] stated he felt 'stupid' and indicated he would not be so trusting in the future and would be more wary of who he associated with."
6. The applicant "expressed regret" for the offending and "indicated he would not be so trusting in the future and would be more wary of who he associated with".
7. The applicant reported being a victim of an assault and robbery whilst on bail in February 2020, during which he was hit from behind. He suffered a concussion and facial injuries, including nasal fractures which required surgery. The applicant described experiencing memory problems since the incident. Hospital records that were tendered in support of his account of the injuries indicated retroactive amnesia at the time of his admission.
8. Since being charged with the offences, the applicant had used sleep aids, including Melatonin supplements and Valium. The applicant told Ms North that he was reluctant to discuss his feelings with his family and fiancée as he did not want to "burden" anyone.
9. Ms North administered the Depression, Anxiety and Stress Scales ("DASS"), which she described as "a 42-item self-report scale which measures the severity of symptoms relating to depression, anxiety and stress over a one (1) week period". The applicant's scores on the DASS indicated diagnoses of depression (mild range), anxiety (very severe range) and stress (mild range).
10. Another assessment tool used by Ms North was the Trauma Symptom Inventory, Second Edition ("TSI-2"), which she described as a "widely used measure of trauma symptomatology for use with adults". Clinically significant elevations were found on the applicant's TSI-2 profile in relation to anxious arousal, intrusive experiences, defensive avoidance and somatic preoccupations. Factors relating to post-traumatic stress and somatization were significantly elevated.
11. Ms North diagnosed the applicant with adjustment disorder, mixed with anxiety and depressed mood, and post-traumatic stress disorder, in accordance with the Diagnostic and Statistical Manual of Mental Disorders, fifth edition ("DSM-5"). Ms North stated: "With regard to his psychological history, [the applicant] described experiencing symptoms of anxiety and depression since being charged with the index offences in May 2019. As such he was assessed as meeting the criteria for Adjustment Disorder, With mixed anxiety and depressed mood (DSM-5 309.28), a disorder characterised by the development of motional and/or behavioural symptoms in response to an identifiable trigger (ie. stress relating to his legal matters). It was my opinion that [the applicant's] underlying symptoms were further exacerbated by his experience of trauma in February 2020 when he was assaulted in the community. In addition to sustaining injuries and experiencing significant pain, [the applicant] described the onset of posttraumatic stress symptoms following this assault and was thus also assessed as meeting the criteria for Posttraumatic Stress Disorder (PTSD) (DSM-5 309.81) at the time of the interview. …" (emphasis in original)
12. Ms North noted the potential impact of a custodial sentence on the applicant's mental health, as follows: "… it was considered likely his anxiety and depressive symptoms would escalate should he be placed in a custodial setting, and his access to appropriate mental health treatment would also be reduced. Further, a custodial sentence would negatively impact on his future in terms of delaying his completion of his degree and disrupting his employment, in addition to the potential impact of a criminal record on subsequent employment opportunities. It is requested these issues also be taken into consideration in sentencing proceedings."
13. In summary, Ms North stated that: "[The applicant's] offending behaviour appears to be related to poor decision-making, particularly in relation to peer acquaintances; however, his involvement in the offences appears to have been minimal in nature and he has accepted responsibility for his behaviour."

A treating psychologist's report

1. The applicant tendered a letter from treating psychologist Houda El-Hanssan, dated 23 February 2021. In her letter, Ms El-Hanssan stated that the applicant commenced psychological treatment with her pursuant to a mental health care plan on 18 February 2021 and, by the date of the letter, had undertaken two sessions which involved an assessment of his symptoms and psycho-education and cognitive behaviour therapy.
2. Ms El-Hanssan stated that the applicant presented with "severe anxiety and depressive symptoms, particularly relating to his previous traumatic experience of being assaulted as well as his upcoming court matter", but that he appeared to be "motivated to engage in therapy and stated that he is committed to improving his mental health". Ms El-Hanssan noted that the applicant had eight further appointments scheduled.

The remarks on sentence

1. The sentencing judge identified the relevant offences, related a summary of the agreed facts and set out the general sentencing principles to be applied in respect of the offences.

Objective seriousness

1. His Honour noted the maximum penalty of 10 years imprisonment for each substantive offence, which his Honour indicated would inform his assessment of objective seriousness in accordance with Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
2. The sentencing judge accepted a submission by the Crown that offences of this nature are against the revenue and therefore, regard may be had to comparative sentences from taxation and like offences.
3. The sentencing judge referred to R v Zhang (2017) 265 A Crim R 113; [2017] SASCFC 5, in which the South Australian Court of Criminal Appeal, at [37], identified certain matters to be taken into account when sentencing for an offence against s 233BABAD of the Customs Act: "• the role of the offender - in particular, it is important to identify whether the defendant was a principal organiser of the criminal operation or merely acting on the instructions of others; • the sophistication of the offending, or lack thereof; • the period over which the offences were committed; • the quantity of the tobacco imported and/or possessed and the amount of duty defrauded or evaded; • whether the loss of revenue has been repaid; • whether the offending involved other illegalities, such as the use of false identities; • whether the defendant was involved in distribution and sale of tobacco products within Australia; • the extent to which the defendant gained financially from his or her offending." (citations omitted)
4. His Honour referred to the following considerations identified in s 16A(2) of the Crimes Act in his determination of the objective seriousness of the offences.

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

1. The sentencing judge considered the role of the offender; the quantity of tobacco involved and the amount of duty evaded; the sophistication of the offending; and the extent to which the offender gained financially from the offending. His Honour summarised the parties' submissions with respect to the above, as follows.
2. The Crown submitted that, although the applicant's involvement in the first offence was limited to one occasion, his role was an important and trusted one which required him to personally deliver $20,000 in cash to Mr Kanssan. In his conversation with UCO 1, extracted at [25] above, the applicant disclosed that he was aware that smuggled tobacco was being purchased, and demonstrated an interest in being able to obtain an ongoing supply of it. With respect to the second offence, the Crown noted that the applicant assisted with the movement of 9.5 million cigarettes in return trips from Macquarie Park to storage facilities at Chullora and later to Lansvale, so that he must have known that a significant amount of duty was being evaded.
3. The sentencing judge noted the applicant's submissions that his role in the commission of both offences was "menial"; he was not a decision-maker, he did not play an executive or managerial role and he was not involved in the importation of the tobacco products. It could not be inferred from the "limited" conversation the applicant had with UCO 1 that he had expertise in the tobacco market. In respect of both offences, there was no evidence that he had gained financially from his involvement.
4. The sentencing judge accepted that the applicant had little involvement with UCO 1 on 18 July 2018, and that the involvement of the UCOs "did not contribute to [his] offending". A relevant consideration was that the molasses, tobacco and cigarettes were not distributed in the community, but "it does not greatly assist the offenders as they believed they were dealing with likeminded people who were attempting to defraud the revenue". His Honour concluded, in relation to both offences: "[The applicant's] role … was limited in an organisation that was involved in defrauding the revenue for at least eight months. However, the Crown is correct to submit that he was involved, albeit for a short duration, in no less than two separate matters and must have had some knowledge of the organisation and the very large sums of money involved. In my view, the objective seriousness of this matter falls midway between midrange and low range for offences of this type."

Course of conduct: s 16A(2)(c)

1. The sentencing judge had regard to the fact that the applicant was charged with two separate offences.

Injury, loss or damage resulting from the offence: s 16A(2)(e)

1. The sentencing judge accepted the Crown's submission that there were two forms of injury, loss or damage involved, namely, to the revenue and to public health, and took into account as an important factor the "amount of the fraud" involved.

General and specific deterrence; the need for adequate punishment: ss 16A(2)(j), (ja) and (k)

1. His Honour accepted that "[o]ffences against the revenue are not victimless crimes" and observed that recent authorities have reiterated the importance of general deterrence for such offences. As well, specific deterrence is important in an organised fraud "containing such large numbers".

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

1. The applicant was aged 22 at the time of the offences and 23 at the time of sentence. The sentencing judge described the applicant's minor criminal record as "irrelevant" so that he "could really be described as a man of prior good character" and that, as such, he was entitled to "some leniency".
2. His Honour stated that he had regard to the report of Ms North, but that, other than the family history which was not in issue, he treated it with "considerable caution … as there was no evidence from [the applicant]". His Honour summarised the applicant's background, employment history, alcohol and drug use, mental health history as recounted by Ms North in her report, and her recommendations for further treatment.
3. With respect to the applicant's mental health and experience in custody, his Honour said: "He has spent no time in custody. As a result of being charged and the subsequent assault, he has been diagnosed by Kris North as having adjustment disorder with mixed anxiety and depressed mood as well as post-traumatic stress disorder. It appears this young man has a genuine fear of a custodial sentence. This, according to the psychologist, may affect his mental health and, of course, any custodial sentence would negatively impact on his future employment prospects."
4. His Honour referred to the treating psychologist's report and its recommendations for treatment, noting: "This appears to be appropriate treatment and if it is continued he has good prospects of not reoffending and continuing his rehabilitation which I find has already started."

Contrition and guilty pleas: ss 16A(2)(f) and (g)

1. His Honour accepted, from the applicant's letter to the Court and the character references tendered on his behalf, that he was "now genuinely remorseful and unlikely to reoffend".
2. His Honour accepted the early guilty pleas of all of the offenders as a mitigating factor, "not only for their subjective value as evidence of contrition, remorse and willingness to facilitate the course of justice, but also for the utilitarian value", which warranted discounts to each of their sentences of 25 per cent.

Parity

1. The sentencing judge found Mr Kanssan to be "the most culpable" of the four offenders and Mr M Masri the least, given his involvement was at a "low level" and limited to one occasion. With respect to the applicant and Mr Al Am Ali, his Honour stated: "With [Mr Al Am Ali], there is little to distinguish him from [the applicant] who was involved in both the molasses tobacco and the possession of the cigarettes although the tobacco was a much smaller quantity. [Mr Al Am Ali], whilst involved with the tobacco, did this over some two months and attended on five separate occasions whereas [the applicant] was really involved on two separate occasions. But what brings him close to [Mr Al Am Ali] is the fact that he had two charges, one of which included the 9.5 million cigarettes."

Appropriate penalty

1. The sentencing judge acknowledged the Crown's submission that, in view of the seriousness of the breaches of s 233 of the Customs Act, having regard to the quantities of tobacco involved, the millions of dollars of duty evaded, the applicant's level of participation and the need for general deterrence for offences of this type, the only appropriate penalty to be imposed on the applicant was a sentence of imprisonment.
2. The sentencing judge noted that, pursuant to s 17A(1) of the Crimes Act, a sentencing court may only pass a sentence of imprisonment for a federal offence if, having considered all available offences, it is satisfied that no other sentence is appropriate in all the circumstances. His Honour stated that he was so satisfied, having regard to the "gravity" of the offences and the matters set out in s 16A of the Crimes Act.
3. In respect of the first offence, his Honour imposed a sentence of 9 months imprisonment to commence on 9 April 2021 and to expire on 8 January 2022. His Honour declined to fix a non-parole period or make an RRO.
4. In respect of the second offence, which his Honour considered to be more serious than the first, a sentence of 24 months imprisonment to commence on 9 April 2021 and to expire on 8 April 2023 was imposed. This was accompanied by a direction that the applicant be released after 12 months on 8 April 2022, pursuant to an RRO. The recognisance required him to forfeit $1,000 without surety and to be of good behaviour for the remainder of his sentence.
5. The sentences imposed on the applicant's co-offenders were a term of imprisonment for 4 years and 6 months for Mr Kanssan, imprisonment for 2 years, to be released on an RRO after 12 months, for Mr Al Am Ali and an RRO for a period of 12 months for Mr M Masri.

Ground 1: The sentencing judge erred in his assessment of the objective seriousness of both offences

Law and legal principles

1. A sentencing judge's assessment of the objective seriousness of an offence may be challenged in accordance with the principles set out in Mulato v Regina [2006] NSWCCA 282 by Spigelman CJ, at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
2. Further, Simpson J observed, at [46]: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

Applicant's submissions

1. The applicant submitted that his offending for both offences could only be assessed as being "at the lowest range" of objective seriousness and it was therefore not open to the sentencing judge to find that it fell "midway between the mid-range and low range".
2. In support of that submission, the applicant drew upon the remarks of Beech-Jones J (as his Honour then was) in R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299, in which his Honour stated: "3 …An offence against s 233BABAD(1) is effectively an offence against the revenue and any consideration of an offence must be considered in that context. One factor affecting any characterisation of an offender's conduct is the amount of tax that was the object of the defrauding. In this case the amount involved, $996,997.50, was very large. Another is the scale of the enterprise in which Mr Saleh was involved. Bearing in mind the amount of tobacco and the logistics of the importation, the scale was substantial. 4 A further and perhaps critical factor is the role of Mr Saleh. He was charged as an aider or abettor. Both the indictment and the agreed statement of facts limited the period of his involvement to 12 days between 15 March 2013 and 27 March 2013. Further, while there is reason to be doubtful of his assertion that he was only to receive $3,000 for his participation in the offence, there is no reason to conclude that he was likely to realise anything like the amount of tax that was sought to be avoided by the importation. Nevertheless, as the judgment of Hulme AJ demonstrates, even though he was not the principal behind the importation, his level of involvement was not minimal but reasonably significant. Mr Saleh committed a reasonably serious instance of an offence under s 233BABAD(1)."
3. The applicant submitted that, as an "aider or abetter", his criminal culpability for the first offence was inherently limited and, in respect of both offences, his involvement was limited in time and scope.
4. The applicant submitted that the scale and sophistication of the fraud influenced the sentencing judge's assessment of the applicant's involvement, citing the Victorian case of Barakat v Director of Public Prosecutions (Cth) (2020) 284 A Crim R 149; [2020] VSCA 185. In that case, the offender "DB" was charged with one count of conveying tobacco products contrary to s 233BABAD(2) of the Customs Act. Niall JA, with whom Priest and T Forrest JJA agreed, noted: "69 The position in relation to DB is quite different. Although it is accurate to characterise the overall scheme as sophisticated, premeditated and ongoing, the role of DB is to be ascertained by what he actually did. His role was important in the sense that it was necessary for the tobacco to be conveyed to the bonded warehouse and for the substitution occur. And, by his plea, he accepted that he intended to defraud the revenue. However, it remained a menial function and there was nothing in the prosecution summary to connect DB to any of the decision-making. Indeed, the judge accepted that he did what he was directed to do. Given the way the narrative was structured in the prosecution summary, which interwove the conduct of both applicants and the familial relationship between them, there was a risk that a higher degree of knowledge and therefore culpability would be attributed to DB than could fairly arise on the facts having regard to the criminal standard. Pared back to his conduct, DB's role is fairly described as ancillary. … 71 DB's role did not itself require any sophistication or planning, was of limited duration and gained very modest reward. It was done at the direction of his brother. Although the judge correctly classified his offending as falling within the lower end of criminality, in assessing the sophistication of the offending, the judge said, in terms that did not distinguish between the applicants, that 'this was a sophisticated scheme designed to take advantage of a vulnerability in the scheme since closed'. In my view, it is not correct to describe DB's offending as sophisticated, or as involving any premeditation or planning on his part. Moreover, his paltry return, which the judge referred to as 'pathetically small' also points up the relatively minor role played by DB. 72 I consider that the actual role of DB, in the context of a relevantly unblemished record and excellent prospects of rehabilitation, was not properly reflected in the sentence. …" (citations omitted)
5. The applicant conceded that the revenue lost or imperilled was significant, but submitted that the responsibility for that loss lay exclusively with the principal offenders. The applicant submitted that there was no evidence to suggest that he was aware of the entirety of the scheme or the potential loss of revenue to the Commonwealth, such that these circumstances were "less … of a guiding factor" in assessing the applicant's culpability.

Respondent's submissions

1. The essence of the respondent's submission was that the sentencing judge assessed the objective seriousness of the offences in an appropriate fashion and, in view of the sentencing judge's findings, the resulting determination was within bounds. The sentencing judge noted the maximum penalty for both offences, its relevance in determining objective seriousness, and addressed the relevant matters to be taken into account for such offences that were identified in Zhang. It is apparent from his Honour's remarks that he engaged with the submissions in the process of arriving at those determinations.
2. The respondent noted the discretionary nature of the sentencing judge's determination of objective seriousness, citing Chandab v R [2021] NSWCCA 186. The respondent submitted that there was "a firm basis" for his Honour's characterisation, given the quantity of tobacco and cigarettes involved with each offence and his Honour's adoption of the parts of the agreed facts that were conceded by the applicant, which related to the applicant's role in committing the two offences. The sentencing judge appropriately constrained the level of objective seriousness by finding that the applicant's role was "limited" by him being involved for only two days and committing two offences in the context of an eight-month long criminal enterprise, although he must have had "some knowledge of the organisation and the very large sums of money involved". This demonstrates that his Honour did not merely recite the facts constituting the offences, but rather assessed them, as is necessary in the determination of objective seriousness: see R v Cage [2006] NSWCCA 304 at [17], [18].

Consideration

1. The applicant places emphasis on his physical acts in committing the offences in order to make the argument that the objective seriousness of each offence could not be greater than "the lowest range". If that was the full extent of the relevant evidence, the submission would be more persuasive of that outcome. However, to characterise the offending in this way avoids the context provided by statements made by the applicant while committing the offences, which suggest that he had a broader awareness, disposition and role than that of a mere courier of an envelope and a labourer shifting boxes with only basic awareness of the criminality of his acts. In discussion with UCO 1, as is apparent from the conversation extracted at [25] above, the applicant displayed an awareness of the envelope's contents and went on to propose the frequency, quantities, and preferred flavours of future supplies from UCO 1.
2. In relation to the second offence, the captured conversations between the applicant and the co-offenders, extracted at [33] - [35] above, belied an appreciation that he was at least an equal of those who bore the responsibility of transferring the container-load of cigarettes from the supplier's possession to that of the syndicate, and shared in the decision-making as to the time frame for that exercise.
3. In my view, it was open to the sentencing judge to fix the objective seriousness of each offence as being midway between the mid-range and low range for offences of this type. Indeed, taking into account the conversations attributed to the applicant at the time the offences were committed, I would concur in that assessment. In so finding, I put to one side the applicant's admission to Ms North that he was the source of the $20,000 that he gave to UCO 1, because the sentencing judge did not refer to it in his remarks.
4. Accordingly, I would refuse ground 1.

Ground 2: The sentences for each offence and the total sentence were manifestly excessive

Law and legal principles

1. The principles relevant to a ground of manifest excess are well known. Those principles were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

The applicant's submissions

1. The applicant submitted that the sentences imposed were manifestly excessive, principally in light of the applicant's relative youth, his prior good character and that his involvement "appeared to arise from a family connection or sense of obligation to a family member, Mr [Kanssan]".
2. Secondary relevant factors are the applicant's early guilty pleas, the sentencing judge's favourable findings regarding remorse, his prospects of rehabilitation, his supportive family and his strong work ethic.
3. The applicant noted that the sentencing judge expressly acknowledged the relevance of the applicant's youth and the importance of rehabilitation in the fixing of the sentences, but submitted that the acknowledgement did not find "full expression" in the sentences that were handed down.

The respondent's submissions

1. The respondent submitted that each of the factors that were said by the applicant to be relevant to this ground had been acknowledged by the sentencing judge, and therefore may be assumed to have been taken into account. The respondent submitted that manifest excess was not made out, relevant considerations being that the sentence for the second offence was wholly subsumed in the sentence for the first offence and that the RRO was set at 50 per cent of the total sentence.

Consideration

1. The applicant was entitled to favourable consideration in view of his relative youth and the sentencing judge's findings that he was of prior good character and was "genuinely remorseful and unlikely to reoffend". The applicant's submission that his motivation for engaging in the offences may have derived from "a family connection or sense of obligation" depends entirely on the applicant's admission to Ms North, which is related in her report and extracted at [50] above. However, his claim of minimal involvement, made to Ms North, is at odds with his interest in further supplies of cigarettes, which is apparent from the conversation captured at the time of the first offence and his sense of shared responsibility for the transfer of the shipping container's contents when engaged in the second offence.
2. Applying the principles concerning manifest excess set out above, I am not satisfied that the ground is made out. I would refuse the second ground.

The proposed additional ground of appeal

1. At the hearing of this appeal, the submissions of the parties focused on the proposed additional ground, that the sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") in considering non-custodial alternatives to full-time imprisonment.
2. In written submissions provided to the sentencing judge as to the appropriate type of sentence, the applicant's counsel wrote: "Sentence: The Crown indicates that a full-time custodial penalty is the only penalty warranted for this offender. The Court may only pass a sentence of imprisonment on a person for a federal offence, if, having considered all other available sentences, it is satisfied that no other sentences are appropriate in all circumstances: [s 17A] Crimes Act. However, S 20AB(1) Crimes Act allows for additional state based sentencing alternatives of community service and intensive corrections (sic) orders. For all the factors highlighted as applying to this offender under ss16A(2) it is contended that the court should not impose a full-time custodial penalty. Given that the court has two sequences for which to sentence the offender, the court can impose an aggregate penalty. Rather than impose a fulltime custodial option the court has an alternate option of an intensive corrections order from anywhere up to a three (3) year period. The imposition of such an order would still meet the needs of community protection and the requirement of general deterrence required for matters of this nature. The court also has the option of suspending the execution of any sentence with the offender to be released forthwith under a recognizance release order under s20(1)(b) Crimes Act. The order maybe for up to a period of 5 years where other conditions may also be imposed." (italics added)
3. He reiterated this submission orally: "… if your Honour has deemed that the threshold for custody being crossed, your Honour can still deal with it in a way that not ultimately by way of full-time [imprisonment], but as I referred to, your Honour has options of intensive corrections order or certainly community corrections order."
4. Similarly, senior counsel for Mr Kanssan and counsel for Mr M Masri and Mr Al Am Ali submitted that an intensive correction order ("an ICO") was an available sentencing alternative for their clients.
5. The Crown submitted that an ICO was an available sentencing option for federal offenders, but only in respect of Mr M Masri did it not oppose a sentence other than full-time imprisonment. In oral submissions, the Crown responded to the applicant's submission for a sentence other than full-time custody as follows: "… my friend's submissions with respect to this issue of full-time custody would have weight if [the applicant] had only been charged with one offence."
6. In his remarks on sentence, the sentencing judge did not respond to the parties' submissions concerning an ICO in relation to any of the offenders; no reference was made at all to an ICO as a sentencing alternative.

Law and legal principles

1. Non-custodial alternatives, which are only available under the law of a state or territory, may be imposed in respect of a person convicted of a federal offence pursuant to s 20AB(1) of the Crimes Act, which relevantly provides: "20AB Additional sentencing alternatives (1) A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if: (a) subsection (1AA) applies to the sentence or order; and (b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and (c) the first‑mentioned court is: (i) empowered as mentioned in paragraph (b); or (ii) a federal court. (1AA) This subsection applies to a sentence or order that is: (a) known as any of the following: … (ix) an intensive correction order …"
2. In accordance with s 20AB(1)(b), a sentencing court exercising the jurisdiction of the state of New South Wales is empowered to make an ICO, pursuant to s 7 of the CSP Act, which provides: "7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note - Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years."
3. Part 5 (ss 64-73B) is titled: "Sentencing procedures for intensive correction orders". A court must have regard to Pt 5 when it is "considering, or has made, an intensive correction order": s 64. There are constraints as to the types of offences and the length of a sentence of imprisonment that may qualify for the imposition of an ICO: ss 67 and 68. In determining whether to make an ICO, the sentencing court must have regard to a sentencing assessment report obtained in relation to the offender and evidence from a community corrections officer: s 69(1).
4. Section 66 specifies certain factors that a court must take into account when considering whether or not to grant an ICO: "66 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."
5. Section 66 was amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), which commenced on 24 September 2018. The purpose of the amendment was explained by the Attorney General of New South Wales, the Honourable Mark Speakman SC, in the second reading speech on 11 October 2017: "Proposed section 66 of the [CSP Act] will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why proposed section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending."
6. Section 7 and Pt 5 of the CSP Act have not been construed as obliging a court to consider making an ICO in every case in which a sentence of imprisonment is appropriate and the case comes within the constraints of ss 67 and 68: R v Fangaloka [2019] NSWCCA 173 at [60] per Basten JA. However, as stated by Campbell J in Blanch v R [2019] NSWCCA 304: "68 … For the reasons explained by Basten JA in Fangaloka (at [60]), a sentencing court is not under an obligation in every case to explore this alternative. There must be some relevant material, which could include a cogent argument advanced by counsel, before the court to engage a requirement to consider the matter. … 69 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."
7. In Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 McCallum JA, at [52], stated: "… as explained by Campbell J in Blanch … at [68]-[69], the obligation 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. There will be cases in which it will be open to the sentencing judge to reject such an argument without adjourning the proceedings to obtain a sentencing assessment report. However, that is not the approach the judge took in the present case. It may be inferred that he was 'considering' an ICO. As already noted, that consideration was governed by the provisions of Pt 5 which include s 66 …"
8. In Mourtada v R (2021) 361 FLR 96; [2021] NSWCCA 211, the applicant appealed against a sentence of imprisonment for two offences involving the illegal importation of tobacco products. The applicant was one of multiple offenders who were sentenced in the same proceedings for related offences. His counsel at the sentence hearing had submitted that an ICO was appropriate in the circumstances. The sentencing judge did not engage with that submission in his remarks in respect of the applicant. At the conclusion of the sentence proceedings, counsel for the applicant asked: "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?"
9. The sentencing judge replied that he had, and elaborated: "… 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." (Mourtada at [19])
10. The first two grounds of appeal in Mourtada were in the following terms: "(1) The sentencing judge erred in failing to take into consideration, the requirements of s 66 Crimes (Sentencing Procedure) Act 1999, when deciding whether to make an [ICO]. (2) The sentencing judge erred in failing to order that the Applicant's sentence should be served by way of [an ICO] for the reason that the sentencing judge held the purposes of general and specific deterrence required that an [ICO] should not be made." (Mourtada at [9])
11. The Court granted leave to appeal and dismissed the appeal. Basten JA at [19], Campbell J at [41] and, inferentially, Adamson J at [38], referred to the exchange following the delivery of sentence as a clear indication that the sentencing judge had considered whether an ICO should be imposed, despite his Honour not having referred to s 66 in his remarks.
12. Basten JA, with whom Adamson and Campbell JJ agreed, observed: "26 Relevantly for present purposes, there was no error on the part of the sentencing judge in having regard to specific deterrence in assessing the particular purpose of community protection. Further, there is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. There is no doubt that an ICO involves a significant element of leniency, as compared with full-time custody, and, if the sentencing judge determines that a period of full-time custody is required to ensure the offender is adequately punished for the offence, a matter with respect to which general deterrence is an available consideration, there can be no error in taking that sentencing purpose into account. Although without specific reference to the language of s 66, as counsel for the applicant observed in the course of oral submissions, the relevant matters were all addressed. No relevant error was therefore identified in grounds 1 and 2 as pleaded. 27 In oral argument, senior counsel submitted that ground 2 could be stated somewhat differently, as a complaint of inadequate reasons. The same issues were said to arise, namely that the judge did not address the obligation in terms reflecting the requirements of s 66, and therefore the offender did not know whether submissions made to the sentencing judge had been properly considered. 28 With respect, the reformulation of the ground does not affect the outcome. 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. If, as the judge explained, some period of full-time custody was warranted, there was no room for the imposition of an ICO, although there was ample opportunity to suspend part of the sentence by the grant of a recognizance release order, as happened."
13. Campbell J, at [41], adhered to the view that he expressed in Blanch, noting that the determinative issue in the instant case was a factual question: "I adhere to the views I expressed in Blanch … for present purposes, particularly at [60] and [69]. But I agree with Basten JA (at [20]) that grounds 1 and 2 asserting a failure of the sentencing judge to address s 66 raised a factual question for the consideration of this Court 'as to whether the judge had regard to the considerations set out in s 66'. I also agree that this question is to be determined with due regard being given to the complexity of the sentencing task required of his Honour, pithily summarised by Basten JA at [21]. [Counsel for the applicant's] question (see [19] above) expressly and squarely raised consideration of the s 66 'matters'. His Honour answered in the affirmative and succinctly explained his decision not to permit the sentences passed to be served by way of ICO. His Honour's response to the matter appropriately raised by [counsel for the applicant] should be taken at face value. I infer that while not referring to the section expressly in his reasons his Honour took into account each of the matters he was required to direct himself to by each of the subsections of s 66. The matter is factually different from Blanch."
14. Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 concerned appeals arising from the same sentence proceedings as in Mourtada. This Court, differently constituted, considered a ground of appeal concerning similar issues in respect of Bilal Doughan, who received sentences of imprisonment for each of two offences.
15. Counsel for Mr Doughan had advanced written submissions on sentence to the effect that an ICO would be a "more than adequate punishment and a significant deterrent to [Doughan] and other persons". Counsel continued: "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 [ICO]." (Elzein at [313])
16. The sentencing judge's remarks on sentence did not address this submission, although two co-offenders received ICOs. The applicant's ground of appeal was that, in refusing to direct that his sentence be served by way of an ICO, the sentencing judge 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." (Elzein at [311])
17. Bellew J, with whom Bell P and Walton J agreed, said, at [318]: "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."
18. The respondent submitted that the ground failed on the same basis as was reasoned in Mourtada and because the sentencing judge's consideration of the matters set out in s 66 could be inferred, particularly since two co-offenders had received ICOs. However, Bellew J distinguished the circumstances in this case from those in Mourtada, stating: "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." (footnotes omitted)

The submissions of the parties

1. The applicant, relying upon Fangaloka and Blanch, submitted that the sentencing option of an ICO had been squarely raised and that the failure of the sentencing judge to consider Pt 5 of the CSP Act, in particular, the matters set out in s 66, constituted an error that required the re-sentencing of the applicant.
2. The respondent submitted that, although counsel for the applicant had proposed an ICO to the sentencing judge as an available option, he had done so with little emphasis and in the context of it being one of three available alternatives to full-time custody, the others being a community correction order (pursuant to s 8 and Pt 7 of the CSP Act) and an RRO. Counsel for the applicant, in the respondent's submission, had not elaborated on an ICO as an option and did not specifically mention the matters specified in s 66.
3. The respondent submitted that the absence of a reference by the counsel for the applicant in his submissions to s 66 or the matters identified therein, in particular, "community safety", was of significance, in view of the observations by Basten JA in Mourtada at [27] and [28], extracted above at [122].
4. At the time of the hearing of this appeal, judgment in Elzein was reserved. The respondent submitted that was of no consequence, since: "… there can be no doubt that neither section 66, community safety nor community protection had been raised before the sentencing judge in the present case by any party."

Consideration

1. As noted, a ground of appeal in identical terms was heard by this Court, differently constituted, on 19 November 2021 in respect of the sentence of imprisonment imposed on a co-offender of the applicant, Mr Al Am Ali. Judgment was handed down on 1 December 2021. By the time of the hearing, judgment in Elzein had been handed down. Consequent upon that decision, the Crown conceded that error had occurred. Davies J, with whom Beech-Jones CJ at CL and Wilson J agreed, granted leave to appeal and upheld the ground of appeal but on re-sentence, concluded that no lesser sentence than that imposed was warranted and dismissed the appeal: Al Am Ali v R [2021] NSWCCA 281.
2. Davies J referred to Bellew J's judgment in Elzein, quoting the passage extracted at [128] above and stating, at [26], that: "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."
3. The respondent's submission in this case that the applicant had not raised the issue of "community safety nor community protection" before the sentencing judge in the context of his submission for an ICO is contradicted by the italicised terms of the applicant's written submissions to the sentencing judge, being a submission concerning the issue of "community protection" if an ICO was imposed, extracted at [106] above. Clearly the applicant had done so.
4. The applicant submitted to the sentencing judge that if his Honour determined, consistently with s 17A of the Crimes Act, that no other sentence than one of imprisonment was appropriate, an ICO would be an available means by which that sentence could be served, having regard to the need for community protection and general deterrence. In my view, the threshold of s 17A having been satisfied, the remarks should have disclosed the sentencing judge's reasoning for rejecting that submission. His Honour's remarks on sentence do not do so, either expressly or inferentially, and accordingly the ground is made out.
5. I would grant the applicant leave to rely on the additional ground, leave to appeal and uphold the appeal on that ground.

Fresh material

1. Affidavit evidence was read at the hearing without objection, to be taken into account on resentence, should that occur. An affidavit by the applicant, affirmed on 1 September 2021, was to the effect that since he entered prison, which I note was at the time of his sentence, he has been held in maximum security and has not had access to a psychologist to continue his mental health treatment. He had limited family visits prior to New South Wales prisons going back into lockdown as a measure to deal with the Covid-19 pandemic. He understands that a resumption of his internship is still available to him if he is released.
2. A brief medical report by the treating doctor of the applicant's parents, dated 15 September 2021, noted that they have both been infected with the Covid-19 virus.
3. An affidavit affirmed by the applicant's fiancée effectively re-stated her support for the applicant and her desire that he be released to assist in the care of his parents, to resume his employment and so that they may marry. An affidavit affirmed by the applicant's sister, who is married to the applicant's co-offender Nadim Kassan, referred to the care that the applicant could provide to their mother, whenever he is released.

Determination

1. The matters to be taken into account on resentence pursuant to s 16A of the Crimes Act are as follows.

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

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

1. I note the nature and circumstances of the offending as set out in the parts of the statement of facts that were agreed to by the applicant and which were summarised at [18] - [37] above. I would add to that material the admission made by the applicant to Ms North that he lent his co-offender Mr Kanssan the money which he (the applicant) handed over to UCO 1. However, I accept a submission made by the applicant that the admission does not go so far as to establish that the payment was made with the expectation that it would yield a profit.
2. The course of conduct involved two offences of a similar nature, which took place nine months apart. The two offences were committed in the course of a criminal enterprise but in circumstances where the applicant's involvement was limited to those two occasions.

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

1. The total duty evaded by the two offences was $7,961,136.20. As well, GST of $796,113.62 would have been payable.

The degree to which the applicant has shown contrition - s 16A(2)(f)

1. On the basis of Ms North's report and the applicant's letter, that was tendered without objection to the sentencing court, I accept that the applicant is genuinely remorseful.

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

1. The applicant is entitled to a discount to his sentence of 25 per cent for its utilitarian value.

The character, antecedents, age, means and physical or mental condition of the applicant - s 16A(2)(m)

1. I take into account the applicant's relative youth at the time of the offences. His criminal history is sufficiently minor in nature for him to be sentenced as a person of prior good character before he committed the first offence in time. I note the applicant's family support, his beneficial relationship with his fiancée, his work history and work ethic, his commitment to further study and his ambition to work in the construction industry.
2. I note that the applicant was the victim of an assault whilst on bail in February 2020. I accept Ms North's diagnosis in February 2021 that the applicant has an adjustment disorder, mixed with anxiety and a depressed mood, as well as post-traumatic stress disorder. I note that the affidavit evidence is to the effect that the applicant's experience of prison custody has been stressful, consequent to the suspension of face to face visits in June 2021 and concern about the applicant's parents' health. I also take into account the impact of restrictions imposed on prisoners in order to attempt to contain the spread of Covid-19.
3. The applicant has stated that, since he has been serving his sentence, he has been unable to continue treatment for his mental health issues. He is ineligible for education or other programs because he has been assessed as having no need for them.

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

1. I concur with the sentencing judge's findings that the applicant's process of rehabilitation is under way and that he is unlikely to reoffend.

The probable effect that any sentence or order under consideration would have on any of the person's family or dependants - s 16A(2)(p)

1. The applicant continues to be concerned about his parents' welfare, although the material tendered that is relevant to that issue is unspecific and does not suggest significant ill health, other than their contracting of Covid-19 in September 2021.

Specific and general deterrence - s 16A(2)(j) and s 16A(2)(ja)

1. General deterrence is an important component for such offences: see Saleh at [7]; Zhang at [118]. In view of the applicant's plea of guilty and my findings as to his character, age, contrition and prospects of rehabilitation, I conclude that there is a limited need for the sentence to reflect specific deterrence.

Objective seriousness

1. Having regard to the maximum penalties for the two offences, the type, nature and circumstances of the offences, the value to the revenue of the duty involved (although I note that the two offences were controlled operations), I conclude, as did the sentencing judge, that the objective seriousness of each offence falls midway between the mid-range and low range for such offences.

The need to ensure that the applicant is adequately punished for the offences - s 16A(2)(k)

1. Having considered all alternative available non-custodial sentences, as required by s 17A(1) of the Crimes Act and having regard to the objective seriousness of the offences and the need for general deterrence for such offences, I am satisfied that no punishment other than a sentence of imprisonment is appropriate for each offence.

Sentence

1. I note that the applicant did not submit that an ICO was appropriate on resentence. In respect of the first offence, I would have imposed a sentence of 8 months imprisonment backdated to commence on 9 April 2021 and which expired on 8 December 2021. However, the applicant has already served the sentence that was imposed for that offence. On the second count, I would impose a sentence of 22 months imprisonment, backdated to commence on 9 April 2021 and to expire on 8 February 2023. I would direct that the applicant be released at the expiration of 10 months and 3 weeks, being on 1 March 2022, upon entering a recognisance pursuant to s 20(1)(b) of the Crimes Act.

Orders

1. I propose the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. Quash the sentence imposed in the District Court on 9 April 2021 in respect of the second offence; 4. In lieu thereof, the applicant is sentenced to imprisonment for a period of 22 months, backdated to commence on 9 April 2021 and to expire on 8 February 2023. The applicant is to be released on 1 March 2022 upon entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for the balance of the order and to appear on sentence if called upon to do so at any time in respect of any breach within that period.

Amendments 01 March 2022 - Typographical error corrected in [6] 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 March 2022