Merhi v R

Court of Criminal Appeal (NSW)|2019-11-01|Before: Macfarlan JA, Harrison J, Cavanagh J, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Cavanagh J.
HARRISON J: I agree with Cavanagh J.
CAVANAGH J: By a notice of application for leave to appeal filed on 8 August 2019, the applicant, Johayna Merhi, seeks leave to appeal from a sentence imposed by the District Court of New South Wales on 12 April 2019 arising out of a planned illegal importation of tobacco products in 2017.
From about March 2017, the applicant, who was at the time a former Customs Officer, agreed to assist with the importation of a container of undeclared cigarettes. The applicant's conduct was detected. She was charged with three offences as follows: 1. Bribery of a public official contrary to s 141.1(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years' imprisonment. 2. Aid and abet the importation of tobacco products knowing of an intent to defraud the revenue contrary to s 11.2(1) of the Criminal Code (Cth) in combination with s 233BABAD(1) of the Customs Act 1901 (Cth), which carries a maximum penalty of 10 years' imprisonment. 3. Dealing in proceeds of crime greater than $100,000 contrary to s 400.4(1) of the Criminal Code (Cth), which carries a maximum penalty of 20 years' imprisonment.

Circumstances of the offending

There was a statement of agreed facts on sentence.
The applicant and her co-offender, Craig Eakin, worked together as Customs Officers at the Australian Border Force ("ABF") between 2001 and 2015.
In 2015, the applicant left the ABF and by 2017 she was employed as a multi-cultural liaison officer with the NSW Police Force. The co-offender continued to work for the ABF and by 2017 was employed as a Senior Border Force Officer.
A Police operation commencing in 2016 focused on the large-scale illicit importation of tobacco into Australia. As part of an undercover operation, the syndicate principals, Ali and Abbas Jomaa, were provided with a method for successful undetected importations of tobacco products into Australia.
From about March 2017, the applicant and the co-accused agreed to assist the syndicate. The applicant's role was to covertly provide information and instructions from associates of the syndicate principals to the co-offender, Mr Eakin, so that he could perform unauthorised searches on the sensitive ABF systems as a means of identifying a suitable company to facilitate an undetected importation.
Having identified a company with a suitable importation history by performing unauthorised searches, the co-offender then made recommendations to the applicant. The co-offender then monitored the shipping container number and intervened when it was flagged for an inspection on the ABF systems.
Between 14 April 2017 and 6 July 2017, the applicant covertly provided specific information to the syndicate principals having regard to the information provided by the co-offender (as well as instructions to the co-offender).
Then, in July 2017, following the arrival of the illegal shipment in a shipping container, the applicant was in daily communication with the co-offender and syndicate associates for the purposes of ensuring that the co-offender closely monitored whether the container might be inspected and when it would be safe to be collected.
On 7, 8 and 9 July 2017, the cigarettes were collected and distributed by persons associated with the syndicate who unknowingly worked with undercover operatives and were heavily surveilled by Police.
After the release of the shipment, the applicant received payment from the syndicate (as well as on behalf of the co-offender). On 18 July 2017, the applicant met with the co-offender and delivered a payment of $100,000 cash to him. She knew that she was delivering payment in return for the co-offender's criminal conduct.
The total approximate loss in taxation and duties was $6,165,192.
Between 6 July and 8 August 2017, members of the syndicate and the undercover officer began planning their next importation. It was decided they would use the services of "the Customs guy" again.
On 10 July 2017, the applicant sent a text to the co-offender about "running another one".
A search of the co-offender's home on 20 July 2017 revealed the presence of $99,000 located in a bag in the applicant's home as well as an encrypted Blackberry mobile phone. The co-offender was not aware that his home had been the subject of a search and assumed his house had been broken into.
The applicant and the co-accused were arrested on 8 August 2017.
With respect to the first offence, the sentencing judge accepted that, between 21 March 2017 and 6 July 2017, the applicant offered a financial reward to the co-offender for corruptly providing sensitive and restricted information obtained in the course of the co-offender's duties as an ABF officer and monitoring importation to ensure that it was not detected or examined by fellow uncorrupted ABF officers.
With respect to the second offence, the sentencing judge accepted that the applicant aided and abetted the importation of goods being tobacco products imported by Ali and Abbas Jomaa, knowing the goods were imported with intent to defraud the revenue.
With respect to the third offence, the sentencing judge accepted that on 18 July 2017, the applicant drove to the vicinity of the co-offender's unit where she met the co-offender and gave him the bag filled with $100,000 in cash.

Ground 1

The applicant submits that the complaint under Ground 1 is twofold. Firstly, the sentencing judge should not have found that the applicant committed any abuse of trust, office or position of authority. Secondly, the sentencing judge should not have taken this into account as a matter of seriously aggravating the offending.
The foundation for the first submission is that the applicant was not employed as a Customs Officer at the time of the offending and thus could not be said to have abused any position of trust or authority. The applicant submits that the only relevance of the applicant's former employment as a Customs Officer is that she met the co-offender whilst working as a Customs Officer. The applicant could have met the co-offender at a social event and the same result might have ensued (it is suggested).
The sentencing judge certainly had regard to the fact of the applicant's former employment as a Customs Officer. His Honour said: "I intend to take into account as a significant factor in relation to sentencing, the issue of general deterrence. In this case, the offender is an ex-employee of Border Force and Australian Customs. It is important that not only employees but ex-employees can be trusted with the information that they gain by their employment. In this case, there is a very significant offence which has been undertaken by the bribery of a Customs officer".
His Honour went on to say: "The material demonstrates, without doubt, that her position was superior to that of Eakin. She acted, in some ways, as a "minder" of Eakin and assured that he continued his dereliction of duties. There is a very significant breach of trust and of office. Whilst the offender was not a serving police officer, she was an ex-Border Force officer, and she used her knowledge of her previous employment whilst being employed as a civilian employee of the New South Wales Police Force. Again, quoting from Justice James in R v Standen [2011] NSWSC 1422, it is a matter 'seriously aggravating the offender's criminality' of her use, in this case, of knowledge and contacts acquired during her career as a law enforcement officer and an abuse of the position that was then currently held."
The applicant submits that the sentencing judge erred on the basis that in R v Standen [2011] NSWSC 1422 ("Standen") there was a direct link between Mr Standen's employment at the time and his commission of the offences. The applicant also referred to the statement by Howie J (with whom McClellan CJ at CL and Hislop J agreed) in Suleman v R [2009] NSWCCA 70 at [22] ("Suleman") in which his Honour found that there was a particular relationship between the offender and the victims that amounted to a position of trust and it was that relationship which imposed a particular responsibility on the offender not to act to the detriment of the victim.
In support of the sentencing judge, the respondent directed the Court to the statement of Hoeben J (as his Honour then was) in Windle v R [2011] NSWCCA 277 at [25] and [59] to the effect that use of information obtained when the offender was in a position of trust vis-à-vis the victim (even though they were not in that relationship at the time of the offending) would involve a breach of trust on the part of the offender.
The point made by the applicant is that there could be no breach of trust or authority unless the applicant was employed in a position of authority or trust at the time of the commission of the offending. I do not agree.
There is no principle or precedent which limits a finding of a breach of trust to offences which happen during the period when the offender is employed in the position of trust or authority. I agree with the sentencing judge that it is important that not only current employees but also former employees can be trusted with the information that they gain through their employment.
Further, the sentencing judge made specific findings that the applicant made use of the information that she had obtained whilst employed by the ABF. As the sentencing judge found: "She was aware of the significance of infiltrating the ABF's systems and obtaining strategic information which allowed the apparent avoidance of detection."
This is supported by a number of agreed facts. For example, on 15 June 2017, the applicant sent a text asking about documents of which she could only have been aware through her earlier employment. She subsequently sent text messages to the co-offender regarding lodging documents and expressing frustration that the documents had not yet been lodged.
On 26 June 2017, the applicant sent a text message to the co-offender asking whether there was anything on the system. After receiving a response from the co-offender, the applicant sent a message to the syndicate associate reporting on the response from the co-offender and explaining its significance.
There are further messages which similarly demonstrate that the applicant was using confidential information which she could only have obtained through her employment with the ABF.
The factual foundation for the applicant's submission, being that her former employment was of no relevance other than that she met the co-offender whilst so employed, is thus not made out. It is clear that the applicant was using the information and knowledge that she had gained whilst employed by the ABF as part of the process in working with the co-offender as well as the associates of the syndicate to ensure that the illegal importation went undetected.
The sentencing judge accepted that the breach of trust was a matter which seriously aggravated the applicant's criminality. Bearing in mind the ongoing obligations of confidentiality ordinarily imposed upon persons in a position of authority and trust even after the employment ceases, it might be surprising if a misuse of such confidential information for criminal purposes after cessation of employment did not involve an abuse of trust such as to constitute an aggravating factor.
Whilst cases such as Standen and Suleman involve abuses of trust and authority whilst the offenders remained employed in their positions, I do not consider that those cases support the proposition that a misuse, after the employment relationship ceases, of knowledge and confidential information obtained in the course of employment could not similarly be considered an aggravating feature.
Further, the observations of Price J in R v Lamella [2014] NSWCCA 122 at [57] ("Lamella") seem particularly relevant: "57 In the present case, general deterrence is a matter of fundamental importance in determining an appropriate sentence. The maintenance of Australia's border security is dependent upon the integrity of Customs officers who are the sentinels of the system. A Customs officer is in a position of authority and trust. Customs officers in the position of the respondent are entrusted with specialised knowledge of the detection and clearance processes of the Australian Customs and Border Protection Service. The abuse by a Customs officer of the trust reposed in him by misusing his knowledge to facilitate the importation into Australia of border-controlled precursors and prohibited drugs is a very serious crime, as is the bribery of a Customs officer. These offences undermine the very core of our Nation's border protection and other Customs officers must be deterred from engaging in similar conduct."
The applicant accepted in her written submissions (para 13) that abuse of trust or authority is an aggravating factor within the meaning of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which reflects the common law. The fact that the applicant only misused the confidential information and knowledge that she obtained whilst employed after ceasing employment does not preclude such misuse as a significant aggravating factor.
As such, Ground 1 fails.

Ground 2

The applicant directs the Court's attention to the sentencing judge's comments in the ROS as follows: "As I have indicated, she was employed by New South Wales Police at the time. I have already gone through her subjective circumstances. In my view, the prior good character in this circumstance is of little weight, as her employment with Border Force and within the New South Wales Police Force would have been conditional on her good character. In fact she has exploited her employment with Border Force, in order to facilitate the commission of these offences."
The applicant was 40 when she committed the offences. She had no prior convictions. She submitted that prior to the offending she was a person of good character. She submits that having regard to s 16A(2)(m) of the Crimes Act 1914 (Cth), the sentencing judge was required to take account of her prior good character in determining the appropriate sentence.
The applicant submits that the sentencing judge must be taken to have discarded the significance of prior good character in the sentencing process on the basis that the applicant would never have been employed either by the ABF or NSW Police Force if she did not have a good character.
I take the sentencing judge's comments to reflect a view that, as the former employment with the ABF was so integral to the applicant being able to perform her role in the criminal enterprise, she could not rely on the fact that she had a good character as relevant to the sentencing process.
The applicant submitted that the sentencing judge engaged in a form of double-counting, in the sense that the fact of the applicant's former employment with the ABF led to a finding of an aggravating factor and that fact ultimately also led to the exclusion of a factor which was relevant for the purposes of considering the overall severity of the sentence. Further, the applicant submitted (validly) that her employment with the NSW Police Force at the time of committing the offence had no bearing on or relevance to the commission of the offence.
The respondent submits that an offence such as bribery of a Commonwealth official is a corruption offence and that prior good character is generally of less weight as a mitigating factor for corruption offences: see R v Obeid (No 12) [2016] NSWSC 1815 ("Obeid (No 12)") and Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [423] (R A Hulme JA).
In Obeid (No 12), the sentencing judge, Beech-Jones J, observed at [94]: "[I]n cases of corruption including wilful misconduct in public office where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would (R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [410] and R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548, at [60] per Wood CJ at CL; Blackstock at [67] per Campbell J with whom Macfarlan JA and Barr AJ agreed)." (Some footnotes omitted.)
The respondent points to the observations of Howie J (Simpson J agreeing) in R v Kennedy [2000] NSWCCA 527 at [21]-[22] as follows: "21 It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed. 22 Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant. But that was not this case."
In this matter, the sentencing judge has taken into account general deterrence as a significant factor and has had regard to the applicant's breach of trust as an aggravating factor. In then reducing the significance of prior good character based on the same factor, the sentencing judge may have erred in considering that a mitigating factor, which would otherwise be available under s 16A(2)(m) of the Crimes Act 1914, should be given little weight.
It may be that in some circumstances good character should be given less weight, particularly if the offender has used that good character to gain a position of trust so as to enable the offence to be committed. Having said that, a different situation arises in circumstances in which an offender has not obtained the position of trust with the specific purpose of committing the offence and has demonstrated prior good character over a long period whilst so employed.
The applicant had no prior convictions. She had worked for ABF for a period of 17 years. Whilst she misused the information and knowledge that she had obtained whilst employed by ABF for the purposes of committing the offending, she had, up to the time of commission of the offences, an unblemished record.
Generally, it may be that an appeal based on the weight that a sentencing judge gave to any particular factor would be difficult. As was said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [66] (Gaudron, Gummow and Hayne JJ): "So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform." (Emphasis in original.)
However, as I have taken his Honour's comments to mean that he was, in effect, dismissing prior good character as a relevant mitigating factor (having regard to the way in which his Honour indicated that he was taking account of the other matters referred to in s 16A of the Crimes Act 1914), I accept the applicant's submission that this is not merely an error in the weighting process or balancing the various factors.
In my view, the applicant's prior good character was a relevant factor in the sentencing process. To not have regard to it may be viewed as a form of double-counting. Whilst not strictly applicable, it may be analogous to that which is precluded by s 21A(2) of the Crimes (Sentencing Procedure) Act. The intent of the words at the end of s 21A(2) is to ensure that a breach of trust is not considered as an additional aggravating factor when the charge itself stems from being in a position of authority. This is to ensure that the same fact is not taken account of to the detriment of the offender more than once in the sentencing process.
In my view, the applicant has made out Ground 2.

Ground 3

The approach to an appeal based on a ground that the sentence is manifestly excessive was set out in Hughes v R [2018] NSWCCA 2 at [86] as follows: "86 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]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) 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; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
The applicant must demonstrate that the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]-[27].
The applicant accepted that the offending was serious and that it was open to his Honour to impose a penalty of full-time imprisonment. However, the applicant submits that the sentence does not fall within the available range; that it should be considered "simply and unaccountably too severe": Conte v R [2018] NSWCCA 209 at [22] (Payne JA and Button J).
The respondent submits that it is well accepted that regard can be had to the indicative sentences in assessing questions of manifest excess of the aggregate sentence: JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (RA Hulme J).
Whilst the sentence might be viewed as in the high end of the range (which might be reflective of the point raised under Ground 2), I do not consider that it is unreasonable or plainly unjust or unaccountably too severe. As I have already accepted that Ground 2 is made out and it is necessary to re-sentence the applicant in any event, it is not necessary to consider Ground 3 further.
In the circumstances, only Ground 2 is established.
Leave to appeal is granted and the appeal is allowed. The sentence imposed by McClintock SC DCJ on 12 April 2019 is quashed.

Re-sentence

I must re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] CLR 601. As submitted by the applicant, it is necessary to exercise an independent sentencing discretion: Turnbull v R [2019] NSWCCA 97 at [44].
It is not necessary, as part of the pre-sentencing process, that I merely repeat all of the matters set out in the ROS or the subject of comment already in this judgment.
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610 at 624; [1998] HCA 57.
I have had regard to the circumstances of the offending and that there is substantial overlap in terms of the criminality. I consider that the offending is in the middle-upper range of objective seriousness and I would have regard to the applicant's misuse of knowledge and confidential information received during her employment with the ABF as a breach of trust and an aggravating factor.
I consider that in circumstances such as these, general deterrence is a significant factor. I adopt the observations of Price J in Lamella to which I have already referred. Only a custodial sentence of some length is sufficient by way of general deterrence.
The applicant is entitled to a 25 per cent discount on account of the utilitarian value of a plea of guilty. Further, I would have regard to the applicant's personal circumstances, in particular, the likelihood that her experience in prison will be more onerous because of her former employment. I would also have regard to the fact that she was reporting on a daily basis whilst on conditional release.
Further, I take account of the fact that she has no prior convictions and is a person of prior good character as a mitigating factor.
Specific deterrence must be a factor but I consider it of less significance in the context of the offending than general deterrence.
I have had regard to the summary of cases provided by the respondent on sentencing. There is some significant difference between some of the cases and the circumstances of this offending. However, I accept the applicant's submission that in 14 out of the 22 cases a more lenient non-parole period and/or total head sentence was imposed than in the present case. I have had particular regard to the range of sentences in respect of offences under s 233BABAD(1) of the Customs Act and s 11.2(1) of the Criminal Code (Cth).
For the offences of bribery of a public official and aid and abet tobacco importation, I give an indicative sentence of four years and six months' imprisonment. For the offence of dealing with the proceeds of crime, I give an indicative sentence of three years and six months' imprisonment.
I impose an aggregate sentence of four years and six months and set a non-parole period of two years and six months.
For the reasons set out in the ROS, the sentence is back-dated to 12 March 2019 and will expire on 11 September 2023. The non-parole period of two years and six months, expires on 11 September 2021. The applicant is eligible to be released on parole on 12 September 2021.

Amendments 07 February 2020 - Amendment on coversheet to name of Counsel for the Crown Amendment on coversheet to name of Solicitor for the Crown Amendment on coversheet and in [76] to date of expiry of non-parole period and date of applicant's eligibility for release on parole 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: 07 February 2020

Criminal Code Act 1995(Cth)ss 11.2, 141.1, 400.4

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (30)

Cited By (4)