Solicitors:
Director of Public Prosecutions (Cth) - Crown
AHA Lawyers - The offender
File Number(s): 2016/323131
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SENTENCE
The offender is to be sentenced for one offence of importing tobacco products with the intention of defrauding the revenue contrary to section 233BABAD(1) of the Customs Act 1901 (Cth). The maximum penalty for that offence is 10 year's imprisonment and/or a fine of up to five times the duty that would have been payable.
The offender has caused a loss to the Commonwealth of almost $1,000,000, $947,894.40 to be more precise. That is a significant amount in anyone's language and a good indication that this offence was one of substantial objective gravity . A person who evaded personal income tax of $1,000,000 or defrauded social security of that sum would be regarded as a seriously dishonest criminal, but there is one aspect of what the offender did which arguably makes his conduct more serious - his evasion of the amount of duty payable came when he imported an addictive substance capable of causing harm to those who use it and to society generally.
True it is that this substance can be bought quite legally at an enormous number of locations throughout Australia, but it is undeniable that of recent times the Federal Government has made substantial efforts to reduce tobacco consumption in this country, including by imposing substantial duty on the importation of tobacco, duty which the offender avoided paying though his illegal endeavours.
R v Bekdache [2018] NSWDC 9 | Case summary | Zoe
As the now former MP David Feeney noted during debate on the Customs Amendment (Smuggled Tobacco) Bill, the charging of a duty on tobacco imports has two objectives. Firstly, as with personal income tax for example, the duty is a source of revenue. But there is a second purpose too - the reduction of tobacco consumption because of the harm it causes.
The offender managed to obtain a contact in China. He communicated with that contact in order to organise the importation of more than a tonne of tobacco in a shipping container. He was assisted by the circumstance that he was a director of BMB Power Tools Sydney, a legitimate business which has been in his family for some time.
The offender had to do quite a bit to get the tobacco into Australia. This was not some spur of the moment decision immediately regretted. As well as liaising with his China contact, he had to arrange a freight forwarder, supply that freight forwarder with the necessary documents, acquire the services of a customs broker, pay an invoice issued by the freight forwarder, pay the amount owing on a "full import declaration", and, finally, accept the delivery of the consignment.
AFP officers watched as he accepted delivery, left the storage facility, and then returned driving a flat-bed truck. The officers saw him removing boxes from the container and placing them on to the tray of the truck at which time he was arrested.
A full deconstruction of the container revealed 69 boxes each containing three smaller boxes, in turn each smaller box contained 12 x 50 gram boxes of flavoured molasses tobacco. The total gross weight of the molasses tobacco was 1,242 kilograms.
The offender appears to have played the role of a principal in this importation. There are statements made to a community corrections officer to be found in the pre-sentence report, amplified in a psychologist's report, in which the offender attributes his involvement in the offence to being coerced by organised crime figures who threatened both him and his family. Such unsworn statements, on which the Crown was denied the opportunity to cross examine the offender, are insufficient to persuade me, on the balance of probabilities,that the offender is telling the truth regarding how his involvement came about.
The offender is a 35 year old man with no previous criminal convictions. He was raised by his parents in a positive and supportive environment. He completed year 10 at high school after which he took over the family power tool business. He has been married for 10 years with 3 children. He was separated from his wife but they have now reunited and enjoy an amicable relationship.
A letter of apology was tendered to me. In that letter he appeals for compassion, relying on his claim that without him his family will have no income. In this letter he says that his mother and father, his wife and his 3 children will have no income if a custodial sentence is imposed upon him. No mention is made of his wife's part time job, nor the possibility of any social security payments which might have been considered by the offender were there genuine need. Perhaps the healthy state of the offenders personal finances, a matter recorded in the psychological report, is a relevant factor here.
In any case, such consequences are common place when a bread winner is sentenced to gaol. Such hardships are far from exceptional. I will of course take this matter into account as part of the general mix of subjective factors on which the offender is entitled to rely.
I do have to make the comment however, that the offender well knew, at the time he committed this offence, that commission of the offence could see him sent to gaol as a result of which his family would suffer. But he went ahead anyway. There is something a bit distasteful about an offender seeking compassion for his family from a judge when the person who is most responsible for them, the offender, acted in such a way as to be the cause of their suffering.
Other material tendered on behalf of the offender suggests that the offender is a man of otherwise good character, not just in the negative sense in that he has no previous convictions but also in the positive sense in that he does good work for the community. Given the age at which the offender committed his first criminal offence, and the consequences for him of having done so, I expect that this will be the offender's one and only breach of the law. In that sense he has good prospects of rehabilitation.
He has expressed his remorse in a number of ways, including of course his plea and assistance, although not surprisingly given how seriously he takes his responsibilities to his family, the major focus of the offender's remorse is on the effects of his offending on them.
He is said to be suffering from stress and depression, but so would almost everyone facing a custodial sentence, particularly those who have never been to jail before.
I come now to a matter about which I will need to exercise some circumspection. I refer to exhibit two in the present proceedings. Without going into any detail at all, because of the matters referred to in exhibit two and the offender's willingness to facilitate the course of justice as demonstrated by his early plea of guilty to this matter, the sentence I will ultimately impose upon the offender is about 40% less than it would otherwise have been.
The Crown referred to three cases which it said were of assistance in identifying the appropriate sentence to impose upon this offender. Each of the cases was an appellate decision, one from New South Wales, one from Victoria, and one from South Australia. Of course no two cases are identical but I have found that the cases referred to by the Crown of considerable assistance. I can of course make allowances for differences regarding the offence and also the offender when comparing those other cases to the one before me at the moment.
Mr James QC began today's submissions by telling me that the offender was now in a position to pay the duty he evaded. I will of course take that factor into account, but it could never be appropriate for a rich person to avoid jail while a poor person does not. There should never be any valid suggestion in our criminal justice system that an offender can buy his or her way out of jail.
I am satisfied that I should accept the Crown's submission that a full time custodial sentence is required. The objective gravity of the offender's misconduct was high. He evaded a substantial amount of duty when he acted as a principal in this tobacco importation exercise. Had he succeeded he would have reduced the Federal Government's ability to reduce tobacco consumption in this country. Even making allowances for the very favourable subjective features he has, nothing less than full time custody is appropriate.
I impose sentence as follows.
Taking into account one day pre-sentence custody the offender is sentenced to imprisonment to date from yesterday, the 1st of February 2018. The offender is sentenced to imprisonment for 2 ½ years. He is to be released after serving 12 months of that sentence on a recognizance self in the sum of $5000 to be of good behaviour for the balance of the sentence.
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Decision last updated: 02 February 2018