R v Sowaid, Nada

CATCHWORDS: Commonwealth offence - fraudulent conduct - dishonestly cause a loss - false import declaration - intention - parity - Sentence

LEGISLATION CITED: Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)

Ryan v The Queen (2001) 206 CLR 267 CASES CITED: R v Kerr [2003] NSWCCA 234 Jimmy v R [2010] NSWCCA 60 R v Formosa [2005] NSWCCA 363

PARTIES: Regina Nada Sowaid

COUNSEL: Mr A N Williams (Crown) Mr A Bellanto SC (Offender)

SOLICITORS: Ms K Watson (Crown) Mr M Masri (Offender)

1. Nada Sowaid ("the offender") was convicted by a jury on 24 May 2010 and is to be sentenced for two offences of dishonestly intend to cause a loss to a Commonwealth entity, contrary to s. 135.1(3) of the Criminal Code Act 1995 (Cth), ("the Code"), as follows: (a) That between about 21 October 2008 and 21 January 2009, she did import a quantity of molasses tobacco and charcoal in container number TTNU 4529623, falsely declared as "charcoal" in Import Declaration: N10 (Declaration ID. AAM9X9WHR), with the intention of dishonestly causing a loss, namely the payment of duty on the importation of the said molasses tobacco to a Commonwealth entity, namely the Australian Customs and Border Protection Service, and (b) That between about 21 October 2008 and 21 January 2009, she did import a quantity of molasses tobacco and charcoal in container number MSCU 5834281, falsely declared as "charcoal" in Import Declaration: N10 (Declaration ID. AAM9X9WNA), with the intention of dishonestly causing a loss, namely the payment of duty on the importation of the said molasses tobacco to a Commonwealth entity, namely the Australian Customs and Border Protection Service. 2. Each container held charcoal and more than 9,000 kilograms of molasses tobacco. The total weight of molasses tobacco was 18,734 kilograms. 3. No duty is payable on charcoal. 4. The Customs duty payable per container for the molasses tobacco was more than $2.95 million. The total loss caused was $5,960,034.76 in Customs duty payable to the Australian Customs and Border Protection Service ('ACBPS').

The maximum penalty for each offence is five (5) years imprisonment and/or a pecuniary penalty of $33,000.

The offender has spent no time in custody in respect of this matter.

The offender was the sole director, shareholder and secretary of the company Haz Management Pty Ltd ("Haz Management").

The company was incorporated in February 2007 for the offender to engage in the importation and wholesale distribution of molasses tobacco and charcoal for use in hookahs or "hubbly bubblies", water pipes used to smoke molasses tobacco.

The offender, along with her husband, had an interest in an Auburn cafe, "Sweets on Queen". As part of its usual business, the cafe prepared "hookahs" or "hubbly bubblies" within its premises for use by customers of the cafe.

On 25 December 2008 a shipping container numbered TTNU 4529623 ("TTNU container") arrived in Sydney. On 28 December 2008 a second shipping container numbered MSCU 5834281 ("MSCU container") arrived in Sydney. The containers were transported to Australia on different ships.

Haz Management was the consignee for each container and the offender was the contact person and responsible for the receipt by Haz Management of the containers.

The containers were inspected by ACBPS and found to contain cartons marked "Special Charcoal" which contained molasses tobacco hidden between layers of charcoal. The offender's company, Haz Management, and its contact details were commercially printed on some of the boxes of molasses tobacco. The Import Entry Declaration (N10) Entry for Home Consumption in respect of each container lodged with ACBPS on behalf of Haz Management falsely declared the contents of each container to be 1,080 boxes of charcoal.

As part of the shipping process, the offender liaised with Sydney Customs clearance and freight forwarding company Megatop Cargo, and the Australian Quarantine and Inspection Service ('AQIS') to facilitate delivery of the containers.

The offender's company, Haz Management, was named as the consignee on various documents relating to the two shipments including:

(1) Al Fakher Trading Co. LLC invoice dated 23 November 2008 to 'Haz Management (Australia) Tel: 414866797 Mob: 97020315', for 5512 units of charcoal, 3153 units of Dubai molasses, plastic bags and cartons. The total sum of the invoice is AED223,700 (approx. AUD78,637) (Exhibit 25);

(2) N10 Declarations lodged with ACBPS (Exhibits 5 and 6);

(3) Tax invoices from Megatop Cargo (Exhibits 10 and 24);

On 8 January 2009, the offender faxed to AQIS a manufacturer's declaration in support of an import permit application lodged with AQIS on 7 January 2009 for the purported charcoal importation.

The offender created the manufacturer's declaration (Exhibit 22), by physically "cutting and pasting" from a number of documents a fax imprint, letterhead, details of treatment and signature to form a single false composite photocopy document. The manufacturer's declaration declared that the two containers were shipments of charcoal only, in order to facilitate the final clearance and delivery of the two containers. Following lodgement of the falsified document with AQIS as part of the offender's application for an import permit, AQIS granted the offender a permit in respect of the charcoal purported to be the only contents of the two containers. The offender created the false manufacturer's declaration in order to conceal the true contents of the containers from AQIS and ACBPS. (Exhibits 12 and 13)

On 21 January 2009, at about 8.30am, the MSCU container was delivered to Unit 3C Louise Ave, Ingleburn, NSW, as a result of arrangements made by the offender. The offender's husband, Bassam Sowaid, and a number of other males attended to unloading the cartons of charcoal/molasses tobacco into Unit 3C.

The offender attended the premises at Ingleburn from approximately 12pm on 21 January 2009, and was observed inside and in the vicinity of Unit 3C where the boxes of molasses tobacco unpacked from the MSCU container were being stored.

On the same day, at about 3.20pm, the TTNU container was delivered to the same address, and the offender's husband and the other males commenced unloading the cartons into Unit 3C.

The unloading ceased when ACBPS officers attended at Unit 3C.

On 21 January 2009, ACBPS officers executed search and seizure warrants at the offender's residence. A significant number of documents linking the offender and Haz Management to the ordering and shipment of the molasses tobacco were seized. These documents included the following (Exhibits 21 to 30 inclusive):

(a) Al Fakher Trading Co. LLC Flavours List with various flavours of molasses tobacco, and specified quantities, marked with highlighter pen (Exhibit 25);

(b) A facsimile dated 27 November 2008 from Leopard Shipping to 'Haz Management (Basam)' providing details for payment of the shipment, including nominating Abdurrahman as an alternate contact (Exhibit 25);

(c) A handwritten document listing rates between $80 and $150 for four dates between 26/12 and 29/1 for each container (Exhibit 27);

(d) An exercise book in which the offender had made handwritten calculations and notations with respect to molasses, tax, broker fees, importation cost, "sell" price, contact numbers and addresses for ACBPS, the National Measurement Institute, the University of Sydney, and Southern Cross University (Exhibit 28).

(e) A folder marked "Al Fakher Trading Co. L.L.C. World Fine Molasses Company" containing a number of documents in plastic sleeves (Exhibit 22). All but the last plastic sleeve in the folder contained documents directly related to the importation of the molasses tobacco in the MSCU and TTNU containers. These documents included: - Invoices (including a copy of the same invoices provided to Megatop), price lists for export Al Fakher tobacco, packing lists, shipping documents (on which email addresses for Megatop officers are handwritten) and clearance documents; - A contract, written in the Arabic language, between the Al Fakher Trading Co. L.L.C. and Haz Management Pty Ltd granting Haz Management distribution rights for molasses tobacco manufactured by Al Fakher Trading Co. L.L.C. in Australia. The contract is signed by the offender in her capacity as Director of Haz Management and a copy of the photo page of her Australian Passport is attached to the contract; - Various versions of a manufacturer's declaration in relation to the charcoal. These documents were used by the offender to create the falsified manufacturer's declaration to AQIS; - Al Fakher Commercial Licence details, which were faxed by Al Fakher on 4 January 2009; - Copy of the AQIS Application for Permit to Import Quarantine Material completed by the offender, dated 5 January 2009; - Copy of a facsimile from the offender to AQIS relating to the fumigation of the shipments of charcoal, dated 20 November 2008, and a letter to the same effect dated 20 November 2008 on Al Fakher Trading Company letterhead; - AQIS Permit to Import Quarantine Material to Mrs Nada Sowaid, Haz Management, dated 16 January 2009; - Email dated 22 December 2008 from Shahab of Leopard Shipping to 'Mr Bassam' at nada_577@yahoo.com providing the estimated arrival date for each of the containers; - Order sheet for 1285 packages of molasses tobacco at a cost of $32,039; - Invoice dated 20 May 2008 faxed from Al Fakher to Haz Management for 1300 items of molasses tobacco, customer name and signature is Nada Sowaid (in English and Arabic); - Invoices from Leopard Shipping dated 25 November 2008 and 21 December 2008 in the amount of AED29,177 and AED25,134 respectively for shipping charges related to the two 40-foot containers of charcoal; - Certificate of origin dated 22 December 2009 for 1100 quantity of charcoal; - Al Fakher receipt dated 24 May 2008 for DHS 50,000 cash; - Various photocopies of a molasses tobacco box; one copy has handwritten amendments made by the offender to insert the contact details for 'Haz Management Pty Ltd Agent for Australia'; - Documents displaying examples of molasses tobacco packaging, including health warnings. The offender created the documents containing the boxes with the health warnings in order to comply with Australian health regulations; - ACS Information sheet with highlighting in relation to Self-Assessed Clearance Declarations; and - Copy of an 'Authorisation and acknowledgement of trading conditions' form.

Relevant Factual Findings 22. Many of the factual issues in the trial were not in dispute. The following matters are clear from the offender's evidence and consistent with the verdicts:

a) She was actively involved in the business "Sweets on Queen" (T309);

b) She was the sole director/secretary and shareholder of the company Haz Management (T310), a company that was incorporated for the purpose of importing molasses tobacco and related goods into Australia (T311);

c) It was the offender's intention to use the tobacco and charcoal imported both in the restaurant and to offer wholesale to others (T315);

d) Haz Management entered a contract with Al Fakher Tobacco (in Dubai) in May 2008 pursuant to which tobacco and related goods were to be imported (T317, Exhibit 22). That document was among those found during the search of the offender's home;

e) Handwriting in a blue exercise book found at the offender's home was hers, including calculations as to duty and profitability of importing tobacco (T320);

f) She had made inquiries and was aware that the importation of tobacco was subject to duty (T321, 364);

g) She had been involved in giving instructions with respect to the labelling of cartons of tobacco from Al Fakher, and in particular with respect to the details of the health warnings and importer details required by Australian law (T324);

h) She was aware that the basis on which duty was payable on the importation of molasses tobacco changed during 2008, and that the change was in effect from a rate levied on the net dry tobacco weight to a rate levied on the gross weight of the molasses tobacco product (T326-7);

i) She knew the increase to be, in effect, an increase in rate from 12% (based on the typical dry net proportional weight of tobacco in molasses tobacco) to 100% (based on total weight of the product). She was so aware at least by September 2008 (T327);

j) She was responsible for importing the two containers which are the subject of the charges (TTNU and MSCU containers) (T329);

k) She was in contact with Megatop (her Customs brokers) with respect to that importation (T330);

l) She was aware of the existence of the document forming part of Exhibit 25, which is an invoice dated 23 November 2008 and numbered 2712 (T341). That document is among those found at the offender's home on 21 January 2009. That invoice number is the same as that given on other documents pertaining to the TTNU container, including some of those forming part of Exhibit 5;

m) She dealt with the Australian Quarantine and Inspection Service (AQIS) as part of arranging the importation of the two containers (T356, T369);

n) She spoke with several officers at Megatop in the course of arranging the importation of the two containers (T356-357);

o) She generally used telephone number 0413 373 055, which was her mobile telephone. In the course of arranging the importation she also used a mobile telephone with the number 0404 866 797 which she said belonged to her husband, Bassam Sowaid, and a home phone fax number 02 9702 0315 (T362-363). Each of those telephone numbers was used in the course of facilitating the importation of the two containers;

p) She accepted that not paying duty where it was payable would be dishonest (T364);

q) She accepted that Megatop was her agent for the importation, that they relied upon her for information with respect to the cargo in each container, and that they operated on her instructions in stating that the cargo was charcoal only (T369);

r) With respect to the contract with Al Fakher tobacco dated May 2008, she was aware that among its terms were the following (T370): o A substantial penalty clause for breach; o A liability on the part of Haz Management for any duties payable; o 10 years exclusive distribution rights with respect to Al Fakher's tobacco products; s) She attended the premises at Ingleburn on 21 January 2009 where the two containers were unloaded (T372);

t) She was involved in preparing the "Manufacturers Declaration" document used as part of the importation, of which there were two versions both dated 20 November 2008 (T396). Those documents were among the material forwarded by the offender to Megatop and AQIS in the course of arranging the importation of the two containers.

23. The offender gave evidence at trial about a number of matters that are inconsistent with the verdicts of the jury and which are rejected. Among these are:

a) That she was not aware that the goods to be imported included the molasses tobacco;

b) That the importation of the molasses tobacco was arranged by her husband and that he did not inform her of it;

c) That she was not aware of the true significance of the document forming part of Exhibit 25 (invoice 2712 dated 23 November 2008);

d) That so far as she was concerned the two containers were importations only of charcoal and that it was hoped that the charcoal could be sold to meet the loss on what she understood was the cancelled tobacco importation agreement;

e) That she attended at Ingleburn on 21 January 2009 only out of curiosity;

f) That the first time she was aware the goods being unloaded included tobacco was after the execution of the warrant by Customs at Ingleburn on 21 January 2009.

24. Other facts and matters relevant to the sentence are as follows:

a) The offender was responsible for the false N10 declaration with respect to count 1 on the indictment (part of Exhibit 5);

b) The offender was responsible for the false N10 declaration with respect to count 2 on the indictment (part of Exhibit 6);

c) TTNU container contained 9348 kg of molasses tobacco;

d) MSCU container contained 9386 kg of molasses tobacco;

e) The applicable rate of duty payable at the time of importation was $318.14 per kg (T256);

f) The intended loss to ACBS by the amount of duty to be evaded on count 1 and count 2 was in each case more than $2.95 million;

g) The total amount of intended loss to ACBS by duty to be evaded by the conduct of the offender was $5,960,034.76

25. The offender intended to cause a loss to the ACPBS by importing molasses tobacco falsely described as charcoal, and by so doing to evade the payment of duty of $5.96 million. As the sole director/secretary and shareholder of Haz Management she arranged for the importation, supervised it and ensured that all steps necessary to supply false documentation to ACPBS were carried out. The offences were carefully planned and carried out over a period of at least some months. 26. While it is possible to speculate, as Counsel for the offender, Mr Bellanto QC, invites the Court to do, that other persons, in particular Bassam Sowaid, had a role in arranging or assisting with the importation, either overseas or after importation, the evidence points clearly to the offender as the person responsible for the commission of the offences, that is "the principal".

Objectively, the offences are each a very serious instance of offences contrary to s 135.1(3) of the Code as each involved a very substantial amount of duty, that is, more than $2.95 million.

The amount involved is not the only factor to be considered in establishing the seriousness of each offence. The seriousness may have been further elevated by any increase in the amount of intended loss, but the amounts actually involved are already very substantial.

The molasses tobacco was imported for wholesale distribution by the offender's company, Haz Management Pty Ltd; and also for use in the offender's cafe. Had the importation not been detected the tobacco could have been distributed at a price reflecting the costs and the duty, although unpaid, or at an unfair advantage to other competitors by reducing the price to reflect in part that the duty had not been paid. In either event the financial advantage to be obtained would have been very substantial.

The offender's motive for the offence could only have been pure financial greed.

The offender could not have had a more significant role in the commission of the offences, even allowing that her husband may have had a part to play in the commission of the offences. Participation by her husband, at its highest, would only change the description of her role from "the principal" to "a principal". In either case her moral culpability is very high and unchanged.

Counsel for the offender submitted that: "Although the duty was not paid, the Commonwealth was not at a loss by reason of the intervention of the authorities and the confiscation of the imported tobacco." Because the molasses tobacco was not declared no duty was levied; but had it been declared, the duty would have totalled $5.96 million. The tobacco was imported but discovered and seized before it could be distributed. In the circumstances the ACBPS did not receive that which should have been paid, $5.96 million. The pre-existing funds of ACBPS were not diminished by $5.96 million; but they were not added to by the $5.95 million that Haz Management was liable to pay in the absence of the offender committing the offences.

In any event, the gravamen of the offence is conduct carried out with the intention of causing a loss, rather than actually causing a loss.

Even if it is correct to say that no loss was occasioned it is not mitigation of the offence to say that because the intention was frustrated by detection of the offence that it should be regarded less seriously.

The material available to the court is limited.

The offender gave evidence in the trial but not on sentence.

The offender is 33 years of age and an Australian citizen. She is one of seven children having grown up in a stable environment. The family remains close and supportive. She left school at 17 years of age after obtaining the Higher School Certificate and later completed a six-month TAFE course in "Administration". For some years she and her husband have operated the café "Sweets on Queen" at Auburn, which provides as part of the service water pipes and molasses tobacco to customers.

She married Bassam Sowaid in 1995. They have three children aged 13, 10 and three (3) years of age.

In the Pre Sentence Report it is stated that; " She impressed as a loyal wife, mother and extended family member. Her focus in her life seemed to be more on her family, especially her children, and the family café rather than any other enterprise."

There is no evidence that the offender or any other member of her family have any significant health problems.

Medical Reports from Dr Samantha Day, Haematology Fellow on behalf of Dr Julie Curtin, from the Westmead Children's Hospital in respect of the offender's youngest child, Zainaddin (3 ½ years of age) were tendered and indicate that in November 2009 medical examination of bruising of his legs was consistent, as was a blood film taken, with Immune Thrombocytopenic Purpura. This is described as a self-limiting illness in children with the majority recovering in 6 months. The second report, dated 7 December 2009, indicated that the condition had resolved and that there was a 1-2% chance of relapse. He was to be checked again in three months but there is no further report.

Hardship to the family or dependants of a person being sentenced should only reduce the sentence being imposed in circumstances where they are extreme and go beyond the sort of hardship that occurs when an offender is imprisoned in the ordinary course. There is no evidence to establish that the personal circumstances of the offender or her family are exceptional such as to render a custodial sentence inappropriate, if a custodial sentence is otherwise appropriate. A custodial sentence would of necessity impact on the family but such an impact would not be outside the range of the impact to be normally expected.

During the trial character evidence was called from Wendy Hunt. Mrs Hunt worked as a social worker for ten years before practicing as a solicitor for seventeen years until the present. She is a friend of the offender, their friendship arising not from any professional relationship but from participation in their children's sport and the local PCYC. Mrs Hunt's evidence was that she held the offender in high regard, as did others who knew her as a result of the offender's community activities and strong family commitment. There is no reason not to accept that the offender was so regarded.

A number of references were tendered on sentence. They confirm that the offender is well regarded in the community. The value of the references is partly diminished in that, in general, they do not indicate that the offender has acknowledged guilt rather than informed the referees that she has been convicted.

However, the offender has no prior convictions and it is accepted that she is a person of prior good character.

In this matter the offender's conduct was premeditated and engaged in over a period of months during which the offences were planned and carried out by a series of acts to achieve the anticipated end result.

In Ryan v The Queen (2001) 206 CLR 267, Callinan J stated at [174]: "In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused."

In this matter, while the offender's prior good character remains relevant on sentence, it cannot be accorded the same weight as might be afforded, by way of contrast, where the offence concerned was unplanned and spur of the moment.

Counsel for the offender has referred in submissions to the offender having lost money invested in the purchase of the product (asserted as being $22,000.00 - Ex 22E) as a result of the failure to succeed in committing the offence, and that in addition, her financial circumstances have deteriorated to the point of "hardship" as a result of the funds committed and expended on engaging legal representatives to defend her. The only purpose in raising those matters is to suggest that they should cause some amelioration of the sentence that might otherwise be imposed.

The personal circumstances of an offender are always relevant to consideration of sentence. Financial circumstances are particularly relevant to the imposition of a fine. What is not relevant are the costs involved in committing the offence, or in defending the prosecution for an offence the offender committed. To hold otherwise would be to encourage the commission of offences and the denial of guilt.

The offender chose to invest funds to commit the offence and unsuccessfully defend the prosecution in respect of it; knowing that she was committing an offence and that she was guilty of having committed it. That was her choice.

The offender pleaded not guilty to the offences.

In the Pre Sentence Report it is stated that: "Mrs Sowaid stated that, the company involved in these matters was set up by and organized by her husband who registered her name as a director. The business of the company was to import goods into Australia. However it was never used except on this occasion. … … Mrs Sowaid stated that she did not know the activities of the company. She accepted the fact that she was a director but left all operating procedures to her husband. She stated that, apart from these occasions that have brought her before the court, company never operated. … … From discussions with the offender she appeared not to understand her obligations as a director and left all matters related to the company to her husband."

There are significant differences between the above and what was disclosed in the prosecution case, and what the offender admitted to in her evidence. (T309 -315) Counsel for the offender has submitted that the interview conducted by the Pre Sentence Officer, Mr Des McGory, was of short duration, and that some misunderstanding must have arisen between the Officer and the offender, considering the admissions made by the offender as to the activities carried out by her in relation to the commission of the offence. Although no evidence was adduced to support such a misunderstanding and the Officer was not called at the request of the offender's counsel, it is difficult in the circumstances not to accept that some misunderstanding may have arisen, as the contrast is stark.

However, even allowing for the possibility of such a misunderstanding, it is clear that the offender continues to deny guilt.

In written and oral submissions Counsel for the offender has stated that the offender "accepts" the verdict of the jury. The acceptance of the fact of a guilty verdict being returned is not an acknowledgement of guilt.

The offender has not demonstrated any remorse or contrition in respect of the offence.

In the absence of an acknowledgement of guilt it is difficult to assess the offender's prospects of rehabilitation and re-offending. An acknowledgement of guilt is generally an important factor in determining whether an individual offender may be rehabilitated or is likely to re-offend.

In this matter the offender is 33 years of age, has three young children and no prior criminal record. She is said to come from a stable and supportive family including an extended family environment. She has in the past been family and community minded and is well regarded by those who know her, despite her conviction.

In those circumstances, despite the lack of acknowledgement of guilt, the Court accepts that there is a reasonable prospect of rehabilitation and that the offender is not likely to re-offend.

The offender is not entitled to a discount for assistance. Although she co-operated with ACBPS officers during the execution of search and seizure warrants on 21 January 2009, she declined an interview and did not provide any material assistance to law enforcement authorities which would assist in the investigation or prosecution of others that may have been involved in the matter.

It has been submitted on behalf of the offender that there is an issue of parity to be considered in determining sentence.

The offender's husband, Bassam Sowaid, was charged with and pleaded guilty in the Local Court to an offence contrary to s 233(1)D of the Customs Act 1901 . The offence was having in his possession smuggled goods when the contents of the containers were delivered and unloaded at Unit 3C in Louise Avenue, Ingleburn, on 21 January 2009. The only penalty provided in respect of such offences is a financial penalty. A penalty of $20,000 was imposed and he was ordered to pay $2,900 costs.

It is clear that the gravamen of that offence and its comparative significance as an offence is entirely different and substantially less significant than the offences in respect of which the offender has been convicted.

Counsel cited a number of matters said to demonstrate that Bassam Sowaid played an "active role in the importation particularly at 'the Australian end' and stood to profit from the activities of Haz Management" as follows: o His presence all day at the unloading on 21 January 2009. o He exercised a dominant role in the unloading. o He travelled to Dubai in relation to the business activities, see Exhibit 22L. o His mobile phone number was on the documentation relevant to the importation; see Exhibits 43, 58 & 59. o His friend leased the premises at the industrial unit at Ingleburn. o He is photographed at the café smoking molasses tobacco. See Exhibit 42.

The Crown case was not that Bassam Sowaid either was or was not involved in the importation beyond what acts the evidence disclosed that he performed. The prosecution case was that whatever his role, if any, it was not material to consideration of the prosecution case in respect of the offender for falsely declaring the tobacco as charcoal with the intention to dishonestly cause a loss.

On the evidence before the court it appears that Bassam Sowaid was prosecuted for the most significant offence that the prosecution could reasonably expect to successfully proceed with against him. The matters referred to above by Counsel for the offender in respect of the asserted role of Bassam Sowaid do not take the matter any further.

The evidence available against the offender, as outlined above, was clearly of an entirely different and more substantial nature.

The difference in the prosecutions was the result of an apparently appropriate exercise of prosecutorial discretion based on the available evidence in respect of each.

In these circumstances parity is not an appropriate consideration. The most simple expression of the explanation as to why the "parity principle" does not apply is because it is not a comparison of "like with like" .

Mr Bellanto QC has referred to the judgment of Miles AJ in R v Kerr [2003] NSWCCA 234 which related to the prosecution charging co-operative offenders with less serious offences than the appellant, rather than the offence relevant to their actual participation in the offence with which the non co-operative appellant was charged.

Campbell JA summarizing the effect of Kerr , rather than agreeing, in Jimmy v R [2010] NSWCCA 60 at [116] stated that: "Kerr supports the application of the "parity principle" as a basis for reduction of a sentence if it is disproportionate to the sentence imposed on a person with whom the applicant has been engaged in a common criminal enterprise, but who has been charged with contravention of different provisions of the criminal law, and in that sense has not committed the same crime as the applicant."

His Honour went on to refer to subsequent decisions in which Kerr had been considered. R v Formosa [2005] NSWCCA 363 in which Simpson J concluded; "I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting such a principle."

Jimmy decided that Kerr should no longer be followed in so far as it held that parity could apply to overcome the effects of prosecutorial discretion. Campbell JA at [125], Howie J and Rothman J agreeing. In this matter there is an even more fundamental difficulty in that there was insufficient evidence against Bassam Sowaid to indicate that the prosecution should or could have charged him with the same offences as the offender.

In sentencing the offender, the sentence must reflect the objective seriousness of the offence, and the Court must fix a sentence that will ensure the time that the offender must spend in custody reflects all of the circumstances of the offence including the objective seriousness of the offences and the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society. Having considered the alternatives, and having had regard to s 17A and the matters set out in s 16A of the Crimes Act 1914 , the Court has determined that this is a matter where full-time custodial sentences are appropriate for the following reasons:

1. The offences are of a serious nature, involving the importation of a total of 18,734 kilograms of molasses tobacco falsely declared as "charcoal" in two separate shipments to avoid payment of duty in total of $5.96 million;

2. General deterrence is also of particular importance in view of the serious nature of the offence, and the difficulty of detection without very high levels of individual scrutiny of container imports;

3. The importation of tobacco and tobacco products is required to be regulated and controlled by the ACBPS in the public interest;

4. The offender, by committing the two offences, deliberately sought to subvert that control in a calculated and covert manner;

5. The offender's motive for the offences was financial gain; and that,

The criminality involved in each offence is the same, as the two offences arise from the one course of criminal conduct and they were committed contemporaneously. The distinction between the two offences is that each involved a separate false N10 Import Declaration for each of the two containers. In those circumstances, concurrent sentences might normally be considered appropriate. However, the duty in respect of the molasses tobacco in each container was more than $2.9 million, and entirely concurrent sentences would fail to reflect the total duty of $5.96 million, or more appropriately described, that each offence was in relation to a separate and substantial amount of duty that would not be reflected by entirely concurrent sentences.

Accordingly, the sentences will be substantially but not entirely concurrent.

You are convicted in respect of each of the two offences.

In respect of the first count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WHR) you are sentenced to a term of imprisonment of 2 years and 6 months commencing today, 3 September 2010 and expiring 2 March 2013.

In respect of the second count on the indictment concerning Import Declaration: N10 (Declaration ID. AAM9X9WNA) you are sentenced to a term of imprisonment of 2 years and 6 months commencing in six months from today, 3 March 2011 and expiring 2 September 2013.

I order that you be released in 1 year and 10 months from today on 2 July 2012 on entering a recognisance, self in the sum of $5000, to be of good behaviour for the balance of the total term of imprisonment and to appear for sentence if breached.

What that means, Mrs Sowaid, is that you have been sentenced to a total term of imprisonment of 3 years, and that in 1 year and 10 months you will be released on entering the recognisance. If you fail to adhere to the terms of the recognizance to be of good behaviour, you will be returned to custody.

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