R v Saleh

Judgment

1. JOHNSON J: I agree with the orders proposed by RS Hulme AJ and his Honour's reasons for those orders.
2. BEECH-JONES J: I have had the advantage of reading the judgments of Johnson J and Hulme AJ. I agree with their Honours that the appeal must be allowed but I respectfully disagree with the length of the sentence they propose. My reasons can be stated briefly.
3. I agree that the sentencing judge's description of Mr Saleh's conduct as being of a "low, rather than moderate seriousness" for an offence under s 233BABAD(1) of the Customs Act 1901 (Cth) was not open to her Honour (Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ). 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).
5. In relation to the Director's complaint about the approach taken by the sentencing judge to the discount to be afforded to Mr Saleh on account of his plea of guilty, I agree with Hulme AJ that it is not necessary to determine whether her Honour's approach to that topic involved error. It suffices to state that, in my view, the position stated in Tyler v R [2007] NSWCCA 247 ("Tyler") represents the applicable law in this Court. Unless and until it is determined in an appropriate case that Tyler was clearly wrong then it should be applied. Senior Counsel for Mr Saleh, Mr Dhanji SC, referred to the judgment of Basten JA in Director of Public Prosecutions v Gow [2015] NSWCCA 208 at [26] to [28]. I note that the Court in Gow does not appear to have been referred to Tyler and the other cases that followed it, including C v R [2013] NSWCCA 81; 229 A Crim R 233 at [33] and Isaac v R [2012] NSWCCA 195 at [24] to [27]. Further, in so far as this Court must resentence, to reflect Mr Saleh's willingness to facilitate the course of justice I would afford him the same discount as that determined by the sentencing judge namely 15%.
6. On the assumption that the sentencing judge did not err in her approach to the discount to be afforded to Mr Saleh on account of his plea of guilty, the sentence was nevertheless manifestly inadequate. Given the maximum penalty for the offence and the criminality involved, a full time custodial sentence was required.
7. I also consider that the necessity to correct a trend of first instance decisions that do not treat offences under s 233BABAD(1) on the approximate scale of those committed by Mr Saleh as sufficiently serious to warrant a sentence of full time imprisonment and the need for general deterrence is such that the Director has demonstrated that the discretion to re-sentence should be exercised (CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407 at 415 [33] - [34]). Otherwise I agree with Hulme AJ that the imposition of a custodial sentence on Mr Saleh would not create any risk of disparity with the sentence imposed on Mr Harmouche.
8. However two particular matters relevant to the instinctive synthesis of the various factors affecting sentencing lead to my conclusion that a shorter custodial sentence is warranted than that proposed by the majority.
9. The first matter concerns the guidance to be obtained for sentences for similar offences. Mr Saleh is not to be sentenced on the basis that he is an importer of illegal drugs. Instead guidance is to be obtained from sentences imposed for taxation and similar offences. Unlike many such offences Mr Saleh was neither the promoter of the venture nor the principal who avoided a tax liability (or falsely obtained a refund). He aided and abetted others. His position can be usefully compared to the position of the respondent in R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 ("Zerafa"). The respondent in Zerafa was convicted of being a party to two large tax conspiracies. In some respects his position was analogous to that of Mr Saleh in that the respondent in Zerafa was neither the promoter of the scheme or the intended recipient of the fraud. Nevertheless the respondent in Zerafa was a professional person who participated in a large and highly sophisticated scheme of taxation fraud committed over nine years. He received a sentence of three years and six months with a minimum term of two years and three months. The sentence proposed for Mr Saleh falls just short of that despite the offence involving less money, his participation being limited to 12 days and his not occupying any position of trust like an accountant. In my view the sentence proposed by the majority for Mr Saleh exceeds that which would be imposed on an aider and abettor of tax avoidance or insider trading who had an analogous level of involvement in an equivalent scheme.
10. The second matter concerns the position of Mr Saleh's family. At the time he was sentenced in the District Court Mr Saleh and his partner were responsible for four children. Since then his partner has given birth. Sub-section 16A(2)(p) of the Crimes Act 1914 obliges a Court sentencing for a Federal offence to consider the "probable effect that any sentence or order under consideration would have on any of the person's family or dependants". In Zerafa at [144] I concluded that the line of authority that held that provision was only applicable if exceptional circumstances were present was clearly wrong and should not be followed. Instead the provision should be applied according to its terms. I maintained that position in Elshani v R [2015] NSWCCA 254 at [40] to [41]. I adhere to that view. Nothing in any recent or ancient decision has raised any legitimate basis for construing s 16A(2)(p) other than according to its terms. In this case the hardship that will be occasioned to Mr Saleh's partner and children from his absence is a matter that should be afforded real weight in the sentencing process.
11. The remaining issue concerns the date from which the sentence should commence. The chronology of the proceedings in the District Court is set out in the judgment of Hulme AJ. Given the combination of the delay in sentencing and the fact that these proceedings are principally directed towards the correction of a trend at first instance which the sentencing judge continued, I consider that it would be unfair to commence any custodial sentence from the date of this judgment as opposed to the date the sentence was originally imposed, even though Mr Saleh has been at liberty in the meantime. This course has been adopted in a number of cases including R v Glynatsis [2013] NSWCCA 131; Director of Public Prosecutions (Cth) v Northcote [2014] NSWCCA 26 and Zerafa.
12. The orders I propose are: 1. The Appeal be allowed; 2. The sentence imposed on the Respondent on 29 May 2015 be set aside; 3. In lieu thereof the Respondent be sentenced to imprisonment for 2 years commencing on 29 May 2015 and expiring 28 May 2017 and direct, pursuant to s 20(1)(b) of the Crimes Act 1914, that on 28 August 2016 he be released upon him entering into a recognizance to be of good behaviour until the expiry of his sentence.
13. RS HULME AJ: On 25 June 2014 the Respondent to this Crown appeal pleaded guilty to a charge that, between about 15 March and 27 March 2013, he aided and abetted the importation of tobacco products with the intention of defrauding the revenue. His trial and that of a Mr Harmouche, a co-offender who also pleaded guilty, had been due to commence on 23 June 2014.
14. The offence was one contrary to s 233BABAD of the Customs Act 1901 (Cth) which so far as is presently relevant provides:- "(1) A person commits an offence if: (a) the person imports goods; and (b) the goods are tobacco products; and (c) the person imports the goods with the intention of defrauding the revenue. … (4) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 10 years, a fine not exceeding the amount worked out under subsection (5), or both. (5) For the purposes of subsection (4), the amount is: (a) if the Court can determine the amount of the duty that would have been payable on the goods … 5 times the amount of that duty; …"
15. On 29 May 2015, Sweeney DCJ sentenced the Respondent to imprisonment for 20 months suspended upon a condition that he enter into a recognisance to be of good behaviour for that period. The circumstances of the Respondent's offending were contained in a statement of agreed facts. That statement records, inter alia: (i) Between about 15 and 22 March 2013 the Respondent contacted United Cargo Pty Ltd, a freight forwarding company, and discussed with that organisation the importation of a shipping container from Indonesia. He provided to the company shipping documents including a bill of lading, an invoice for 600 pieces of "natural unfinished screens bamboo blind", and some other documents. (ii) In his initial contact the Respondent provided by way of contact details an email address that would seem to have been his and three phone numbers, viz:- 0401 440 034 0497 014 098 0498 704 568 (iii) The shipping documents recorded that the importer was a Mr Joe Saba of Yagoona Markets. The Respondent informed the principal of United Cargo, "my business partner is overseas." (iv) Between 15 and 26 March the Respondent contacted United Cargo on some nine other occasions in connection with the importation. On at least 4 of these occasions the Respondent used phone number 0497 014 098 and on at least one occasion, phone number 0439 729 700. (v) On 22 March 2013 the Respondent attended upon United Cargo and paid $4,100 being a final payment of duty and charges for the importation. The money was paid in $50 notes. (vi) On 26 March 2013 the container was delivered to a storage depot where the Respondent had made arrangements for it to be received and the Respondent signed a delivery docket for it. Inside the container there were approximately 600 large and 100 smaller bamboo blinds. The large blinds concealed approximately 2,250kg of unmanufactured (loose) tobacco. On that occasion the Respondent told an employee of the storage facility that "he would be storing only half the bamboo blinds and the other half already had buyers wanting delivery." The Respondent was told he was too late to unpack the container and should return the following day. (vii) On 27 March 2013, two males arrived in a pantechnicon, backed up to the doors of the container, opened it and began to transfer its contents into the truck with the assistance of two other males, Messrs Harmouche and Kabbaro. (viii) Shortly thereafter Customs and Border Officers entered the premises and arrested the four males unpacking the container. (ix) During the unpacking of the container, the Respondent was in a motor vehicle nearby but was not arrested until 9 April 2013. (x) Mobile number 0401 440 034 is registered to the Respondent. (xi) Mobile number 0497 014 098 is registered to Marian Kheir of a specified address in Lakemba. (xii) Mobile number 0498 704 568 is registered to Omar Karmi of a specified address in Gwandalan. (xiii) Mobile number 0439 729 700 is registered to Ms Samya Riszk of a specified address in Greenacre. (xiv) On his arrest Mr Harmouche was in possession of a Nokia C2-00 mobile phone which was used with a SIM card number 0498 704 568 from 19 to 25 March and after that date with SIM card number 0439 729 700. The Respondent used these numbers to ring United Cargo on 19, 20 and 22 March 2013. (xv) The duty payable upon the tobacco within the container was $996,997.50.
16. The Statement of Agreed Facts also records that the Respondent participated in a Record of Interview during which he asserted that. 1. He was approached by a man named "Sam or Simon" and asked to organise the freight forwarding and customs clearance for the container because "Sam or Simon" would be interstate at the time the container was due to arrive. 2. He was also asked by Sam or Simon to arrange people to unpack the container. 3. He was "in need of money" and was to receive $3,000 to arrange the services referred to and was also given $700 to pay the workers, and 4. He was provided with a Nokia C2-00 mobile phone by Sam.
17. In the course of her remarks on sentence, Sweeney DCJ observed: "The Crown accepts that Mr Saleh was acting on behalf of another person or persons, that he was not the principal behind the importation… Mr Saleh performed his tasks on behalf of another person, for which he said he was to be paid $3,000 and there is no evidence to the contrary. He said in addition he was given $700 to pay the workers, indicating he had a role in organising the workers who unloaded the container … Mr Saleh gave the freight forwarders, United Cargo, his mobile phone number which is registered in his own name and his own email address and used his own name, which tends to suggest he did not know at that stage what the container held. However, by the night of 26 March, he knew enough to tell Mr Harmouche he thought the container business was "fishy" or suspicious and it contained tobacco. By his plea, he has admitted the requisite intention during the period of his involvement over 12 days. That is a relatively short period of time for involvement in enterprises such as these. … … His offence, taking into account what he did and the amount of tobacco and duty evaded is not at the lowest level but it is of low rather than moderate seriousness, for an offence of this kind.
18. Turning to subjective matters, the Respondent was born in June 1980. Between them, he and his wife have five children. He had a good working history until sustaining an injury at work in 2009. Since then he has worked for some of the time and at the time of sentence was working in a café owned by Mr Harmouche.
19. There was put before her Honour a psychologist's report in which there was reported that the Respondent's brother had passed away in January 2011, that the Respondent then stopped working, became socially withdrawn and did not eat, experienced symptoms of depression, his finances diminished and he depended on his sister for financial support. The psychologist opined that in consequence the Respondent was emotionally vulnerable when approached to commit this offence for the payment of money. Her Honour accepted this account of the Respondent's personal circumstances and said they mitigated his moral culpability "a little" and distinguished him from someone who committed an offence purely for financial gain.
20. Her Honour recorded: Mr Saleh has a prior record which consists mostly of convictions for driving while disqualified from holding a licence. There are offences in 2007 of making and using a false instrument for which Mr Saleh was fined and placed on good behaviour bonds and one of dealing with suspected proceeds of crime for which he received a 4 month suspended sentence. I was not told the facts of those offences. Mr Saleh's record means he cannot be treated with the leniency afforded a first offender but his prior offences are mostly of a different kind than this offence. Mr Saleh and Mr Harmouche pleaded guilty to their offences in this Court at the time of their trial. I take into account the fact of the plea by each offender and that it indicates his willingness to facilitate the course of justice. The Crown case against each appeared strong but the trial would likely have been lengthy and complex. I have therefore afforded a discount of 15% each of Mr Saleh and Mr Harmouche's sentence for their pleas.
21. Mr Saleh's criminal history in fact reveals four offences of driving whilst disqualified prior to the subject offence and two similar offences since, and being a driver and stating a false name and place of abode in 1999. The 2007 offences to which her Honour referred consisted on four counts of having and four counts of using a false instrument, one of making a false instrument and one of dealing with property being the suspected proceeds of crime. The Respondent did not give evidence during the sentencing hearing and her Honour made no finding as to the prospects of Mr Saleh re-offending.
22. In support of its appeal the Crown advanced three grounds:- 1. The learned sentencing judge erred in her Honour's assessment of the objective seriousness of the offence. 2. The learned sentencing judge erred in her Honour's determination of the discount on sentence to be afforded the plea of guilty by taking into account the utilitarian benefit of the plea of guilty, which is irrelevant in sentencing for Commonwealth offences; and 3. The sentence was, in all the circumstances, manifestly inadequate.

Ground 1 The learned sentencing judge erred in her Honour's assessment of the objective seriousness of the offence.

1. In Mulato v R [2006] NSWCCA 282 at [37] Spigelman CJ, with whom Simpson J agreed, remarked: [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. Even on that restricted basis, her Honour erred. Certainly her Honour found that the Respondent was not a principal in the importation, that the evidence disclosed not more than the carrying out of a limited role over a period of only 12 days and that giving United Cargo his own email address and phone number suggests that the Respondent did not know at that stage what the container held. On the other hand, as her Honour observed, "By his plea he has admitted the requisite intention during the period of his involvement". Furthermore, the Respondent's account reeks of improbability. Why he should be given or accept the responsibility of importing a container for someone who he seems to have known only as "Sam or Simon", why he should be given a phone by "Sam or Simon" if the transaction was or was thought by the Respondent to be innocuous, and why in his impecunious state he should have paid more $4,100 for import charges when he had been given only $700 for others and was to receive only $3,000 for himself is not apparent.
3. And Sweeney DCJ did not find, as was submitted on behalf of the Respondent, that the Respondent was to be paid $3,000. Her Honour's remarks in that connection are qualified by the words "He [i.e. the Respondent] said". Furthermore, given the dishonesty inherent in the offences for which the Respondent had previously been convicted, there was no obvious reason to believe anything the Respondent said that was in his own interest.
4. It is not clear what Sweeney DCJ meant in the passage the subject of this ground, "for an offence of this kind" but whatever her Honour did mean, the Respondent's activities were by no means insubstantial and, combined with the amount of duty sought to be evaded, almost $1M, meant that his offence could not reasonably be regarded as of low seriousness.
5. In that connection, I am not unconscious of the fact that there have been cases where the duty sought to be evaded has been substantially more. However, $1M is a great deal of money. The vast majority of the working population have to work many years to earn that sort of sum and may well never accumulate it in their lifetime.
6. This ground is made out. Ground 2 The learned sentencing judge erred in her Honour's determination of the discount on sentence to be afforded the plea of guilty by taking into account the utilitarian benefit of the plea of guilty, which is irrelevant in sentencing for Commonwealth offences.
7. In light of conclusions I have reached on other grounds it is unnecessary for me to reach a conclusion on this ground. Ground 3 The sentence was, in all the circumstances, manifestly inadequate.
8. In support of this ground counsel for the Appellant drew attention to the introduction of s 233BABAD of the Customs Act in 2012 and to the rationale advanced by the Attorney General at the time, viz. the need for penalties to provide a strong deterrent against illegal importation. It was pointed out also that the use of tobacco was something that the legislature had clearly indicated a desire to discourage by the imposition of increased duties, and that importations such as that assisted by the Respondent were calculated to contribute to tobacco being available at cheaper prices, increasing its use as a result. Other potentially harmful consequences of the smuggling of tobacco were referred to by Sweeney DCJ.
9. In this connection it may be convenient to record some matters of history. It is unnecessary to attempt a comprehensive account of the relevant legislation although convenient to note that, as the Court was informed, less serious cases of smuggling have been dealt with under s 233 of the Customs Act 1901 which section does not provide for imprisonment. Since 2001 ss 135.1 and 134.2 of the Criminal Code, dealing with dishonestly obtaining a gain from, or causing a loss to, the Commonwealth - sections providing for a penalty of 5 years imprisonment - have also been used. More significant are the provisions of the Excise Act 1901. Section 117 prohibits possession, custody or control of manufactured excisable goods and prior to 2000, s 129 provided that a breach of s 117 rendered an offender liable to a penalty of a fine between two and five times the duty evaded or if that could not be ascertained, a fine not exceeding $50,000. The Excise Amendment (Compliance Improvement) Act 2000 increased the penalty so as to, inter alia, include 2 years imprisonment.
10. It was against that background that s 233 BABAD was enacted, increasing the penalty fivefold to, in the words of the Explanatory Memorandum to the Customs Amendment (Smuggled Tobacco) Bill 2012, "provide a strong deterrent to criminals and … demonstrate the seriousness of smuggling acts".
11. Attention by both counsel was also directed to a number of prior decisions. Most were decided under earlier legislation and accordingly provide minimal guidance. However, five involved offences against s 233 BABAD and these might usefully be referred to. In DPP v Nassar (unreported, Vic County Court, 7 March 2014) Judge Dean imposed three concurrent sentences, the longest of which was 18 months, on an offender who had carried out transport services for a syndicate that had illegally imported containers of cigarettes into Australia. The sentences were immediately suspended. Two of the containers were intercepted by Customs officials and that enabled a calculation that if they had not been intercepted something over $5m would have been evaded. The loss occasioned by the importation of the container that had not been intercepted could not be calculated. However Judge Dean observed that the offender did not stand to make profits from the events, the only moneys received by the offender being one cash sum of $30,000. His Honour accepted that otherwise the offender was of good character and his prospects of rehabilitation were very good. On arrest he made full admissions, co-operated and later agreed to give evidence against the syndicate members. His Honour indicated that but for the offender's plea he would have imposed a sentence of 2 years and 6 months suspended after 15 months. In DPP v Abdulah and Haddara (unreported, Vic County Court, 1 December 2014) Judge Dean imposed on Abdulah a suspended sentence of imprisonment for 15 months. His Honour imposed on Haddara one suspended sentence of 21 months and a second suspended sentence of 15 months to commence 12 months after the first. His Honour ordered the immediate release of Haddara upon his entering into a recognisance. His Honour stated that but for his plea of guilty the sentence on Abdulah would have been for 21 months, suspended after 6 months and that on Haddara would have been effectively of 2 years and 6 months, suspended after 12 months. Abdulah's offence and the first committed by Haddara, was of attempting to possess cigarettes, knowing them to have been imported with intent to defraud the revenue and Haddara also pleaded guilty to a charge of possession of such (but not the same) goods. The amount of duty sought to be evaded by the first offence was about $3,278,000. Both offenders had participated in the unloading of a container containing the cigarettes. Both offenders had pleaded guilty following committal proceedings but were regarded as early pleas. Neither offender had any prior convictions and Judge Dean accepted that the prospects of rehabilitation of both was very good. Abdulah was regarded as cognitively and emotionally immature and having become involved because of pressure from others including his brother in law. His Honour found that Haddara was affected by disturbed mental health at the time of offending and became involved because he felt indebted to his brother in law, presumably Abdulah, with whom he was living. His Honour seems to have been influenced also by the fact that Haddara was responsible for caring for a 4 year old son. In R v Seung Hyeok Jeongh and Sejin Jeong (unreported, Qld District Court, 11 July 2014), Judge Kingham imposed on both offenders sentences of 20 months imprisonment, to be suspended after 3 months upon their entering into recognisances. His Honour said that while the offenders were not at the tip of the tree both played a role much more important than that of courier. Their enterprise was described as lucrative and the amount of duty evaded approximately $432,000. The offenders were siblings, Mr Jeong being aged 22 and Ms Jeong 29 at the time of offending. They seem to have been well regarded by their peers and had been helpful to parents in South Korea. Both were regarded as having good prospects of rehabilitation. Ms Jeong's wedding had been disrupted in consequence of her offending and Mr Jeong seems to have been guilty, though not prosecuted, of some other offence earlier involving cigarettes. Both were said to have been shamed by what they had done and reparation had been made. In R v Jooseok Ryu (unreported Qld District Court, 28 November 2014) Judge Bowskill QC imposed a suspended sentence of 10 months imprisonment on an offender who had conveyed tobacco products, knowing that they had been imported with intent to defraud the revenue. He had been involved helping the Jeongs in loading the subject cigarettes from a warehouse into a truck and then driven away in it. The duty evaded was approximately $187,000. Mr Ryu was accepted to have a lesser role than the Jeongs but was considered as more than a mere courier. He derived no benefit for his participation. He pleaded guilty at an early stage. He did have a conviction for knowingly dealing with the proceeds of crime. He seems to have been the beneficiary of favourable references from friends and family. In arriving at the decision he did Judge Bowskill was influenced by the sentence imposed on the Jeongs, that the amount of duty evaded by Ryu was much less and by remarks of the Queensland Court of Appeal, one may infer in R v Kopa; Ex parte DPP (Cth) and R v Istogu; Ex parte DPP (Cth) referred to below. R v Sona Lee (unreported, NSW District Court 22 January 2015) Woodburne DCJ imposed a sentence of imprisonment for 2 years 9 months, suspended after 12 months on an offender who had a "pivotal position of responsibility on behalf of Korean exporters" of cigarettes, coordinating importations, setting up post office boxes to receive and transferring packages, falsely described, to storage sites, negotiating with purchasers and organising distribution. She was found to have come to Australia in order to set up and run the Australian end of the operation, well knowing it was illegal. She lied when questioned about her activities but pleaded guilty at an early stage. She had some other mitigating subjective circumstances. The duty evaded was $3,943,527 plus unpaid GST at the rate of 10%.
12. Counsel for the Respondent placed emphasis on the more substantial involvement of the offenders and/or the greater amount evaded in many of those cases. Those features may be acknowledged and it is proper for this Court to take notice of the cases mentioned. It is also appropriate to recognise the extent to which sentences not involving full-time custody have been imposed in the other cases to which the Court was referred.
13. However, as was made clear in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 at [303]-[305], cited with approval in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54], those previous sentences may be used to establish the range of sentences that have been imposed in the past but they do not necessarily establish that the range is correct. And while it is proper to have regard to the accumulated wisdom of the judges who have imposed those sentences it is also appropriate to bear in mind that almost all were single judge decisions, most in the District or equivalent courts and there is a tendency for any sentencing pattern to be followed.
14. So far as revealed by the arguments in this case, this is the first time that s233BABAD has been considered by an appellate court. The section itself is by far the most definitive exposition of how offences under it should be regarded and I confess I am unable to reconcile many of the decisions under the section with its terms and general sentencing principles.
15. In that connection reference might usefully be made to the decision of the Queensland Court of Appeal in R v Kopa; Ex parte DPP (Cth); R v Istogu; Ex parte DPP (Cth) [2004] QCA 100; 145 A Crim R 287. That was a case decided after the amendments providing for a sentence of 2 years imprisonment had been enacted and the appeals were brought largely to establish guidelines for judges of the District Court in imposing penalties for breaches of the legislation. Given the change in legislation since the actual decision the facts do not matter except insofar as necessary to understand the Court's remarks.
16. Kopa who had a gambling problem, accepted an offer to purchase a truck, drive it to, and leave it unlocked at, specified locations, after which he could have the vehicle. His promised reward was $5,000 and the truck. Williams J described him as a courier. The value of the duty on the tobacco he transported was approximately $1.7M. Istogu was found in a shed containing a quantity of tobacco and a deal of tobacco processing equipment and engaged in some processing activities. Excise payable on the tobacco found with him was something under $400,000. Istogu was regarded as a major offender in his operation.
17. Williams J, with whom the other members of the Court agreed, referred with apparent approval (at [3]), to a passage from Commissioner of Taxation v Cocaj [2004] QCA 69; (2004) 2 Qd R 488 which was in terms:- "The Appellants set out to defraud the revenue and such conduct warrants substantial deterrent sentences in accordance with the spirit of the Act."
18. Williams J himself observed (at [25]):- "Deliberately defrauding the revenue is a serious offence and, particularly where the amount is large, a significant custodial sentence is called for. As the type of offence in question is prevalent a deterrent penalty is called for. Against that background, any sentence which did not require the offender to serve at least six months in actual custody where the excise avoided was more than $500,000 would, in my view, be inappropriate. Where the amount of duty avoided was between $250,000 and $500,000 an appropriate sentence recognising the seriousness of the offence and the need for deterrence would ordinarily involve the offender serving at least three months in actual custody. Of course, as noted above, factors personal to the offender could justify the imposition of some other (higher or lower) sentence."
19. The duration of sentences to which his Honour referred was no doubt largely influenced by the terms of the legislation current at that time but the general tenor of his remarks accords with that taken in other situations of defrauding the revenue - see e.g. DPP (Cth) v Gregory [2011] VSCA 145; 34 VR1 at [51] - [60]. I will not set out that extended passage but it will repay study by any judge sentencing in this area.
20. It is also appropriate to bear in mind the well-known proposition that a suspended sentence provides little if anything by way of general deterrence - see e.g. Wood CJ at CL in R v Taylor [2000] NSWCCA 442 at [49] and R v McKay [2007] NSWSC 275; 61 ACSR 470 at [73] where Whealy J remarked:- "… the real bite of general deterrence occurs only when an actual custodial sentence is imposed"
21. The remarks in DPP v Bulfin (1998) 4 VR 114 at 132 are to similar effect
22. In the judgment under appeal her Honour made no reference to general deterrence or to the decisions in DPP (Cth) v De La Rosa, R v Kopa, R v McKay referred to above or to any other authorities to similar effect.
23. Of course, general deterrence and the statutory provision are not the only matters to be taken into account. In response to this ground counsel for the Respondent drew attention to Sweeney DCJ's acceptance of the Respondent's emotional state and financial needs and to the recognition her Honour gave to the Respondent's need to support his wife and children, emotionally and financially, albeit noting that that did not amount to exceptional circumstances. See also R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 at [97].
24. These matters are obviously relevant. Nevertheless, when all the relevant facts are considered, I have no doubt that the sentence imposed on the Respondent was manifestly inadequate. It is likely that this result is to be attributed at least in part to her Honour's erroneous assessment of the seriousness of the Respondent's offence but her failure to direct attention to general deterrence and give that topic appropriate weight seems likely to have contributed. Indeed, it is appropriate to say that most of the decisions in this area seem to suffer the same failing.
25. Premeditated offending for the rewards or benefits that criminality may bring is a calculated risk. As the cases mentioned show, the rewards are not infrequently enormous. The criminality is often difficult to detect and it is impossible to believe that many people do not get away with it. Accordingly it behoves the courts to ensure that the penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend. Other Matters
26. That is not the end of the matter. Counsel for the Respondent also emphasised the remarks of the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [37] where it was accepted that "the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong", and submitted that the Court in this case should exercise the discretion it undoubtedly has to follow that latter course and dismiss the appeal.
27. In light of the remarks of the High Court in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [76], how far one can take that statement may be a matter for debate but I am prepared to accept it for present purposes.
28. Furthermore, it was submitted that to interfere with the sentence imposed on the Respondent would create disparity with that imposed on Mr Harmouche, especially if ground 2 were upheld. In that connection her Honour had allowed Mr Harmouche also a discount of 15% upon the same ground as she allowed the discount to the Respondent and sentenced him to imprisonment for 12 months suspended upon his entering into a recognisance to be of good behaviour.
29. Mr Harmouche was charged with possessing the tobacco, not importing it. There was a substantial difference in the roles performed by the two persons, Mr Harmouche's involvement not being proved to be more than unloading the container for a sum of $300 after being informed on the previous night of the Respondent's belief as to what it contained. Mr Harmouche gave evidence during the sentencing hearing and her Honour records him saying that he did not know it was an offence to unload the tobacco. Mr Harmouche had no prior criminal history. Her Honour accepted that he is at low risk of re-offending.
30. Given the differences between Mr Saleh and Mr Harmouche, not only in their objective criminality but also in their subjective circumstances, I am satisfied that to interfere with Mr Saleh's sentence in the way I propose will not create any unjustified disparity between them.
31. Returning to the remarks of the High Court in Green v The Queen; Quinn v The Queen to which I have referred, I do not accept that in the circumstances of this case it would be appropriate to merely point out error and not re-sentence the Respondent. While one can hope and perhaps expect that statements of this Court will be followed, experience shows that that does not always occur. Witness Sweeney DCJ's disregard of the principle as to the importance to deterrence of actual custody. In my view the Court should allow the Crown appeal, quash the sentence imposed by Sweeney DCJ and re-sentence the Respondent. The Crown has demonstrated that the discretion to re-sentence the Respondent should be exercised: CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407 at 415 at [33]-[34].
32. In coming to that conclusion, I have accepted her Honour's conclusions as to the Respondent's circumstances, including the factors that led him to offend. I have also taken into account the Respondent's plea of guilty and an affidavit of the Respondent read on the hearing of this appeal. The Crown did not cross-examine the Respondent on the potential inconsistencies between the tenor of that affidavit and evidence put before Sweeney DCJ suggestive of significant physical incapacity and accordingly I accept what is said in the affidavit.
33. I have also taken into account the provisions of s 16A and s 17A of the Crimes Act 1914 (Cth). In that latter connection, I am satisfied that no sentence, other than one involving imprisonment, is appropriate. I do not regard it as necessary to progress seriatim through the numerous topics referred to in s 16A but one should be mentioned. I accept that the prison sentence I propose will have a substantial impact of the Respondent's wife and family. Whether it can be described as exceptional or not, the Respondent's criminality requires a sentence of imprisonment for 3 years including a non-parole period of 2 years.
34. A question arises whether the commencement date of the sentence should be the date on which this decision is delivered or some earlier time. Before Sweeney DCJ the Respondent's Counsel pressed for the imposition of a suspended sentence. He succeeded - wrongly in my view. In those circumstances I do not see the fact that the Respondent has served that sentence for the last six months while being at liberty as a reason for back-dating the commencement date of the sentence this Court imposes.
35. However, there is another factor. It was agreed that the history of proceedings in the District Court was as follows: 1. On 24 June 2014, Mr Saleh entered a plea of guilty. 2. On 29 August 2014, sentence proceedings were listed against him but "not reached" and adjourned until 21 November. 3. On 21 November 2014, proceedings were adjourned because the Respondent's Counsel was sick. 4. On 20 February 2015, proceedings were listed but again not reached. 5. On 1 May 2015, an application for an adjournment was made on the Respondent's behalf but was refused. 6. On 14 May 2015 the sentence hearing took place. 7. On 29 May 2015, sentence was imposed.
36. Some delay between plea and sentence could have been expected but being not reached on 29 August and then for a second time on 20 February were consequences of gross failings of the justice system and should not have occurred. The inevitable inference from the result of those failings is that the term of the Respondent's imprisonment will be served substantially later than it should have been. For these reasons I would propose that the commencement date be the date of sentence by Sweeney DCJ namely 29 May 2015.
37. I propose that this Court make the following orders:- (i) Allow the Crown appeal; (ii) Quash the sentence imposed by Sweeney DCJ on the Respondent; (iii) Sentence the Respondent to imprisonment for a period of 3 years, commencing on 29 May 2015; (iv) Order that on the expiration of the period of 2 years from 29 May 2015, the Respondent be released upon entering into a recognisance to be of good behaviour for the balance of the sentence with himself as surety in the sum of $1,000 without such security being required to be deposited.

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