Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R

[2021] NSWCCA 246

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246

Hearing dates:

15 September 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Before:

Bell P at [1]
Walton J at [2]
Bellew J at [3]

Decision:

Abbas Elzein

(1) Leave to appeal against sentence granted.

(2)   Appeal dismissed.

Ahmad Elzein

(1)   Leave to appeal against sentence granted.

(2)   Appeal allowed.

(3)   Sentences imposed in the District Court quashed.

(4)   In lieu thereof, Ahmad Elzein is sentenced as follows:

(i)   in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 1), 16 months’ imprisonment commencing on 26 August 2020 and expiring on 25 December 2021;

(ii)   in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 2), 20 months’ imprisonment commencing on 26 November 2020 and expiring on 25 July 2022;

(iii)   in respect of the offence of conspiracy to dishonestly cause a loss to the Australian Border Force (referred to this judgment as Ahmad count 3), 24 months’ imprisonment commencing on 26 June 2021 and expiring on 25 June 2023.

(5)   The total effective sentence is one of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023.

(6) Pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022.

Bilal Doughan

(1)   Leave to appeal against sentence granted.

(2)   Appeal allowed.

(3)   Sentences imposed in the District Court quashed.

(4)   In lieu thereof Bilal Doughan is sentenced as follows:

(i)   in respect of jointly committing an offence by entering into an agreement to import tobacco products with intent to defraud the revenue (referred to in this judgment as Doughan count 1), 15 months’ imprisonment commencing on 26 August 2020 and expiring on 25 November 2021;

(ii)   in respect of jointly committing an offence by entering into an agreement to possess goods, namely tobacco products, knowing that the goods were imported, within intent to defraud the revenue (referred to in this judgment as Doughan count 2), 22 months’ imprisonment commencing on 26 November 2020 and expiring on 25 September 2022;

(iii) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released on 25 December 2021, upon giving security in the sum of $100.00 without surety, on a recognizance to be of good behaviour for a period of 9 months.

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where the three applicants were involved with a number of other persons in offending involving evading excise duty payable on tobacco products – Complicated and difficult sentence proceedings involving complex facts, numerous offenders and a multiplicity of different charges – Where two of the applicants advanced specific submissions as to their respective prospects of rehabilitation – Where third applicant advanced specific submissions as to the disposition of the matters by way of an Intensive Correction Order – Where none of those submissions were considered by the sentencing judge – Necessity to engage with specific submissions made and provide adequate reasons – Error established – Applicants resentenced – Objective seriousness of the offending – Substantial amounts of duty involved – Need for general deterrence – Effects of lengthy delay in the finalisation of proceedings – 3 year delay between date of arrest and sentence hearing – 9 month delay between sentence hearing and passing of sentence – Latter period of delay brought about by the effects of the Covid-19 pandemic on listing arrangements in the District Court – Prospects of rehabilitation – Parity considerations

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code1995 (Cth)

Customs Act 1901 (Cth)

Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases Cited:

Aboud v R [2021] NSWCCA 77

Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

Blanch v R [2019] NSWCCA 304

FL v R [2020] NSWCCA 114

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Karout v R [2019] NSWCCA 253

Lai v R [2021] NSWCCA 217

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Mifsud v Campbell (1991) 21 NSWLR 725

Mourtada v R [2021] NSWCCA 211

Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54

Pettitt v Dunkley [1971] 1 NSWLR 376

Pickard v R [2011] SASCFC 134

Postiglione v The Queen (1987) 189 CLR 295; [1997] HCA 26

R v Amati [2019] NSWCCA 193

R v Delcaro (1989) 41 A Crim R 33

R v Fangaloka [2019] NSWCCA 173

R v Hawkins (1989) 45 A Crim R 430

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33

Sharma v R [2017] NSWCCA 85

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Stanford v R [2007] NSWCCA 73

Taylor v R [2020] NSWCCA 46

Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135

Van Zwam v R [2017] NSWCCA 127

Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Abbas Elzein – Applicant
Ahmad Elzein – Applicant
Bilal Doughan – Applicant
Regina – Respondent

Representation:

Counsel:
Abbas Elzein – B Walker SC and A Djemal
Ahmad Elzein – B Walker SC and A Djemal
Bilal Doughan – P Lange
Crown – D Jordan

Solicitors:

Abbas Elzein – Zahr Partners
Ahmad Elzein – Zahr Partners
Bilal Doughan – Astoria Lawyers
Crown – Commonwealth Director of Public Prosecutions

File Number(s):

2015/285145; 2015/285159; 2015/285186

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

26 August 2020

Before:

Hunt DCJ

Judgment

1. BELL P: I have had the advantage of reviewing the detailed and careful analysis by Bellew J of these three related sentence appeals. For the reasons his Honour gives, error has been established in the sentencing of each of the three applicants. I agree with his Honour’s assessment that no less a sentence is warranted in the case of Abbas. In the case of Ahmad and Doughan, I agree with the sentences which Bellew J has proposed, and the reasoning process underpinning those two resentences.

2. WALTON J: I have had the opportunity of reading the draft judgment of Bellew J in this matter. I agree with the orders proposed for the reasons provided in his Honour’s judgment.

3. BELLEW J: In 2020, Abbas Elzein (Abbas), Ahmad Elzein (Ahmad) and Bilal Doughan (Doughan), along with a number of other co-offenders, appeared before the before the District Court for sentence. Each of them had pleaded guilty to various charges which arose from investigations undertaken by the “Polaris Joint Waterfront Taskforce” (JWTF) which was established to investigate the commission of offences involving goods under customs control, with a particular focus on the operation of sea cargo terminals in New South Wales.

THE CHARGES

Abbas Elzein

4. Abbas pleaded guilty to the following offences:

1. between about 19 November 2014 and 2 September 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth) (the CUA) (Abbas count 1);

2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Abbas count 2);

3. between about 24 February 2015 and 17 March 2015, at Sydney in the State of New South Wales, imported tobacco products knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(1) of the CUA (Abbas count 3);

4. between about 30 June 2015 and 11 August 2015, did conspire to import goods, being tobacco products, into Australia with the intention of defrauding the revenue, contrary to s 11.5(1) of the Criminal Code 1995 (Cth) (the Code) and s 233BABAD(1) of the CUA (Abbas count 4);

5. between about 10 April 2015 and about 29 September 2015, at Sydney in the State of New South Wales, conspired with Yehia Assi, Abbas Choukor, Ahmad Elzein, Mouhammed (aka Michael) Jomaa and divers others with the intention of dishonestly causing a loss of $4,876,920.00 to a third person, namely the Australian Border Force, which is a Commonwealth entity, contrary to s 135.4(3) of the Code (Abbas count 5).

5. The maximum penalties applicable to those offences are as follows:

1. Abbas counts 1, 2, 3 and 4 – 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA;

2. Abbas count 5 – 10 years imprisonment.

6. Abbas asked the sentencing judge to take into account a further offence when imposing a sentence in respect of Abbas count 1, namely an offence of dealing with money that Abbas intended would become an instrument of crime, contrary to s 400.4(1)(b)(ii) of the Code.

7. Abbas was sentenced as follows:

1. Abbas count 1 – 20 months imprisonment commencing on 26 August 2020 and expiring on 25 April 2021; [1]

2. Abbas count 2 – 24 months and 3 weeks imprisonment commencing on 26 November 2020 and expiring on 16 December 2022;

3. Abbas count 3 – 20 months imprisonment commencing on 26 March 2021 and expiring on 25 November 2023; [2]

4. Abbas count 4 – 14 months and 3 weeks imprisonment commencing on 26 August 2021 and expiring on 15 August 2022;

5. Abbas count 5 – 33 months imprisonment commencing on 26 February 2022 and expiring on 25 November 2024.

   1. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 April 2021 which was seemingly an error. The particulars of sentence filed in this Court (at AB 2) specify the correct date of 25 April 2022.

   2. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 November 2023 which was seemingly an error. The particulars of sentence filed in this Court (at AB 2) specify the correct date of 25 November 2022.

8. The total effective sentence was 4 years and 3 months imprisonment, commencing on 26 August 2020 and expiring on 25 November 2024.

9. The sentencing judge imposed a single non-parole period of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023.

Ahmad Elzein

10. Ahmad pleaded guilty to the following offences:

1. between about 19 November 2014 and 2 September 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Ahmad count 1);

2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, possessed goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the CUA (Ahmad count 2);

3. between about 10 April 2015 and about 29 September 2015, at Sydney in the State of New South Wales, conspired with Yehia Assi, Abbas Choukor, Ahmad Elzein, Mouhammed (aka Michael) Jomaa and divers others, with the intention of dishonestly causing a loss of $4,876,920.00 to a third person, namely the Australian Border Force, which is a Commonwealth entity, contrary to s 135.4(3) of the Code (Ahmad count 3).

11. The maximum penalties applicable to those offences are as follows:

1. Ahmad counts 1 and 2 – 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA;

2. Ahmad count 3 – 10 years imprisonment

12. Ahmad asked the sentencing judge to take into account:

1. a further offence when imposing a sentence in respect of Ahmad count 1, namely an offence of dealing with money that Ahmad intended would become an instrument of crime, contrary s 400.4(1)(b)(ii) of the Code; and

2. a further offence when imposing a sentence in respect of Ahmad count 3, namely an offence of dealing with money that Ahmad intended would become an instrument of crime, contrary to s 400.4(1)(b)(ii) of the Code.

13. Ahmad was sentenced as follows:

1. Ahmad count 1 – 20 months imprisonment commencing on 26 August 2020 and expiring on 25 April 2021; [3]

2. Ahmad count 2 – 24 months and 3 weeks imprisonment commencing on 26 November 2020 and expiring on 16 December 2023;

3. Ahmad count 3 – 33 months imprisonment commencing on 26 June 2021 and expiring on 16 April 2024. [4]

   3. The reasons of the sentencing judge at AB 540 specified the expiration date as 25 April 2021 which was seemingly an error. The particulars of sentence filed in this Court (at AB 5) specify the correct date of 25 April 2022.

   4. The reasons of the sentencing judge at AB 540 specified the expiration date as 16 April 2024 which was seemingly an error. The particulars of sentence filed in this Court (at AB 5) specify the correct date of 25 March 2024.

14. The total effective sentence was 3 years and 5 months imprisonment, commencing on 26 August 2020 and expiring on 25 March 2024.

15. The sentencing judge imposed a single non-parole period of 2 years and 4 months imprisonment commencing on 26 August 2020 and expiring on 25 December 2022.

Bilal Doughan

16. Doughan pleaded guilty to the following offences:

1. between about 24 February 2015 and 17 March 2015, at Sydney in the of New South Wales, jointly committed an offence with Abbas Elzein, Jawad Elzein and unknown others by entering into an agreement to important tobacco products with intent to defraud the revenue, contrary to s 11.2A of the Code and s 233BABAD(1) of the CUA (Doughan count 1); and

2. between about 15 May 2015 and 6 August 2015, at Sydney in the State of New South Wales, jointly committed an offence with Abbas Elzein, Ahmad Elzein, Abbas Choukor and unknown others by entering into an agreement to possess goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 11.2A of the Code and s 233BABAD(2) of the CUA (Doughan count 2).

17. Doughan asked the sentencing judge to take into account a further offence when imposing a sentence in respect of Doughan count 2, namely an offence of dealing with the proceeds of crime of a value of $100,000.00 or more, contrary to s 400.4(1)(b)(i) of the Code.

18. The maximum penalty for the offending in each of Doughan count 1 and Doughan count 2 is 10 years imprisonment and/or a fine calculated in accordance with s 233BABAD(5) of the CUA.

19. Doughan was sentenced as follows:

1. Doughan count 1 – 19 months imprisonment commencing on 26 August 2020 and expiring on 25 March 2022;

2. Doughan count 2 – 27 months imprisonment commencing on 26 November 2020 and expiring on 25 December 2023, [5] partially suspended pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (the Act) with an order that Doughan be released on 25 April 2022 on the condition that he enter into a recognizance for a period of 10 months, expiring on 25 December 2023. [6]

   5. The reasons of the sentencing judge at AB 541 specified the expiration date as 25 December 2023 which was seemingly an error. The particulars of sentence filed in this Court (at AB 8) specify the correct date of 25 February 2023.

   6. This date is also incorrect and should be 24 February 2023 (i.e. 10 months from 25 April 2022 as confirmed by the particulars of sentence filed in this Court at AB 8.

20. Abbas, Ahmad and Doughan each seek leave to appeal against their respective sentences the grounds more fully discussed below.

THE FACTS OF THE OFFENDING

Possessing goods knowing that they were imported with intent to defraud the revenue

Abbas count 1

Ahmad count 1

21. The sentencing judge found the facts of this offending to be as follows. [7]

    7. Commencing at AB 401.

22. In August 2014, the JWTF commenced an investigation into the activities of persons employed within the waterfront sector who were alleged to have facilitated the illicit importation of (inter alia) prohibited drugs and tobacco products into Australia. Pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW) a series of authorisations were issued in the course of the investigation which incorporated the involvement of an undercover officer (the UCO).

23. Ahmad was the owner/operator of the Elzein Supermarket (the supermarket) at Arncliffe. He was assisted in the conduct of that business by members of his family, including Abbas who is one of his children. Hussein Kadouh (Kadouh) was an acquaintance of Ahmad and Abbas.

24. On 14 October 2014 Kadouh met with the UCO, at which time the UCO said that he was engaged in the business of smuggling cigarettes into Australia and that he could give Kadouh a sample of what was available. At a subsequent meeting on 6 November 2014, the UCO gave Kadouh 30 packets of “Dunhill Lights (Red Label)” cigarettes, containing a total of 600 sticks. Kadouh then gave samples of the cigarettes to a number of small businesses, including the supermarket operated by Ahmad.

25. On 19 November 2014 Kadouh introduced the UCO to Abbas and Ahmad, following which the UCO supplied them with 4,970 packets (99,400 sticks) of cigarettes. Both Abbas and Ahmad knew that the cigarettes had been smuggled into Australia without the applicable customs duty being paid.

26. Following that initial supply, the UCO established a relationship with Ahmad and Abbas, pursuant to which he sold them smuggled cigarettes and tobacco on an ongoing basis. The individual quantities supplied which were referable to Abbas count 1 and Ahmad count 1 were as follows: [8]

    8. AB 749 – AB 751.

Date of supply	Amount paid	Product	Notional duty avoided
19 November 2014	$22,000.00	99,400 sticks of tobacco (4,970 packets of mixed Dunhill Lights and Win King Size)	$45,990.39
27 November 2014	$50,000.00	200,000 sticks of tobacco (10,000 packets of Davidoff Classic cigarettes)	$92,536.00
9 December 2014	$63,200.00	250,000 sticks of tobacco (12,500 packets of mixed cigarettes being Davidoff Classic, Dunhill Lights and Marlboro Red)	$115,670.00
27 February 2015	$8,000.00	104kgs of mixed flavoured Al Fakher Molasses tobacco	$60,150.48
8 April 2015	$12,000.00	40,000 sticks of tobacco (2,000 packets of Davidoff Classic cigarettes)	$18,803.20
15 April 2015	$3,000.00	10,000 sticks of tobacco (500 packets of Davidoff Classic cigarettes)	$4,700.80
21 April 2015	$200.00	4kgs of Nakhla Molasses tobacco	$2,350.48
27 April 2015	$6,000.00	20,000 sticks of tobacco (1,000 packets of Davidoff Classic cigarettes)	$9,401.60
15 May 2015	$18,000.00	60,000 sticks of tobacco (3,000 packets of mixed cigarettes)	$28,204.80
28 May 2015	$119,900.00	280,000 sticks of tobacco (14,000 packets of mixed cigarettes)	$131,622.40
3 June 2015	$15,000.00	50,000 sticks of tobacco (2,500 packets of mixed cigarettes)	$23,504.00
2 September 2015	$36,730.00	92,200 sticks of tobacco (4,610 packets of mixed cigarettes)	$48,874.85
TOTAL	$354,030.00	1,101,600 sticks of tobacco or 55,080 packets of cigarettes or 108kgs of tobacco	$581,809.00

27. The duty avoided was notional rather than actual because the revenue had already been defrauded of that sum by the person(s) who had smuggled the cigarettes into Australia in the first instance.

27. The total amount of $354,030.00 which was paid for the cigarettes was the basis of the respective additional matters that Abbas and Ahmad asked be taken into account when being sentenced for this offending.

Possessing goods knowing that they were imported with intent to defraud the revenue

Abbas count 2

Ahmad count 2

Doughan count 2

29. The sentencing judge found the facts of this offending to be as follows. [9]

    9. Commencing at AB 406.

30. On 3 June 2015 the UCO met with Abbas. He told Abbas that he had run out of cigarettes and that he would try to obtain some molasses tobacco which could be supplied. On 11 June the UCO and Abbas met at the supermarket, at which time the UCO said that he was working on the tobacco supply. He asked Abbas to be patient, saying:

That’s going to be very beneficial for both of us but it’s just going to take a little time. Just trust me. If I can get it, it’s going to be good.   

31. There followed various conversations between Dougan, Abbas, and Abbas Choukor (Choukor) about the cost of the tobacco, and the possibility of obtaining some samples of it.

32. At 1:21pm on 23 June Doughan telephoned Abbas, who said that the UCO had four tonnes of tobacco available at a price of $100.00 per kilogram. Abbas said that the expiry date for the tobacco was August 2015 and expressed the view that it was not worth it. Doughan suggested that he ask for a price of $80.00 per kilogram.

33. At 8:03pm on 24 June Abbas telephoned Choukor who asked to see the tobacco. About 8:46pm Abbas telephoned Doughan who asked Abbas if he had the samples. Abbas told him that he did not.

34. At 2:24pm on 25 June Abbas telephoned Choukor who asked if the samples were available. Abbas told him that they were not.

35. At 3:54pm Abbas telephoned the UCO who confirmed that the samples were available. Abbas told the UCO that he had a “guy” who was willing to take them all, but who preferred certain flavours such as “Two Apples” (seemingly because that flavour was more popular). The UCO responded by saying that he would only sell the tobacco as one whole lot, and would otherwise sell it to another buyer.

36. At 4:02pm Abbas telephoned Doughan and informed him that that the UCO had said that he would not sell the flavours separately. Doughan said:

We will take all of them.

37. At 7:13pm Abbas telephoned the UCO and they discussed the supply of the samples.

38. At 12:21pm on 26 June Abbas telephoned the UCO and asked if he would agree to supply the tobacco in four separate lots, telling the UCO that he had:

… a guy that wants to take a bit of stuff to Perth.

39. The UCO responded that he wanted to sell the tobacco as a whole. When Abbas asked again if he could take delivery in four lots, each of one tonne, the UCO said that he would think about it and let him know.

40. Abbas and the UCO spoke again at 2:47pm. When Abbas again asked whether the four tonnes could be separated into one tonne lots, the UCO responded that this would be too difficult, and too much work for him. He also told Abbas that he would only deliver samples of the tobacco when he received the “paperwork” in relation to the discussions which were then taking place in relation to the offence in Abbas count 5. Abbas explained that he was not “hassling" the UCO about delivering the tobacco and said:

Because the guy that I'm gonna offload, trying to offload the four pallets to, he's been harassing me, I'm not gonna take ’em for me, I don't need ‘em, he’s been harassing me… My dad doesn't care about the molasses and the other guy just wants to know the breakdown of the molasses.

41. At 4:05pm the UCO sent Abbas a message regarding the tobacco which was available for supply:

They are in 6kg boxes. 209 boxes of Two Apples, 1254kg; 125 boxes of grape, 750kg; 125 boxes of mint, 750kg; 83 boxes of mint grape, 498kg; 42 boxes of energy, 252kg; 42 boxes of bubble-gum, 252kg; and 41 boxes of lemon, 246kg.

42. Abbas forwarded that message to Doughan at 4.45pm, and to Choukor at 8.32pm. Within a minute of receiving the message, Choukor telephoned Abbas who told him that the UCO wanted to sell the entirety of the tobacco in one lot. Abbas said that many of the flavours were “shit”, and that he would try to organise to take only the apple flavour, a proposal to which Choukor agreed. Choukor also observed that the tobacco had a “very short date”.

43. At 1:43pm on 27 June Abbas telephoned Doughan who said:

Abbas Choukor and I are taking them together.

44. Doughan suggested offering $5.00 per kilogram less (i.e. a price of $95.00 per kilogram). Abbas responded that he did not think it was feasible to negotiate a new price, and told Doughan that he was not making any money on the transaction, an assertion which the sentencing judge found was false.

45. In a subsequent conversation at 6:14pm, Choukor told Abbas that he (i.e. Choukor) and Doughan would take the entirety of the tobacco, subject to an agreement being reached as to the price. Choukor asked Abbas to organise a sample box of each flavour. Abbas said he would do so, but also said that he thought that the less popular flavours were not worth the asking price because of the potential difficulty in selling them.

46. At 10:59am on 29 June Choukor telephoned Abbas who said that he had not received the samples. Choukor commented that this was “no good” because they would shortly become out of date and suggested taking delivery of the tobacco in two separate lots.

47. At 3:30pm Choukor telephoned Abbas who said that the UCO would be bringing the samples the next day.

48. At 10.00am on 30 June the UCO met Abbas at the supermarket and provided a sample box of each flavour of tobacco. When Abbas queried why the product had such a close expiry date of August, the UCO said:

It's no good me hanging onto them until you get the money. So I'm happy to bring it to you, you get rid of it and then you pay me. Do you understand the amount of trust that I'm going to give you?

49. It was then agreed that Abbas would pay the UCO when he received the money from the others (i.e. Doughan and Choukor). The UCO said that he was willing to provide the tobacco on credit and Abbas confirmed that another guy named Abbas (a reference to Choukor) was going to take the tobacco, but wanted to look at the samples first. The UCO refused to accept less than $100.00 per kilo, but indicated that he may be prepared to reduce the price in light of the fact that some of the flavours were not very attractive for sale. Abbas said:

I told him whatever you told me. I promised the guy I'm not gonna make nothing out of it.

50. At 12:07pm Abbas telephoned Choukor and told him that he had the samples. Choukor said he would meet with Abbas shortly.

51. At 12:16pm the UCO telephoned Abbas and said that he would reduce the price of the tobacco to $375,000.00 on the basis that the entirety of it was sold in one lot. When Abbas said that he would “tell him (i.e. Choukor) $375”, the UCO offered Abbas a commission of $5,000.00. Abbas asked for $10,000.00, in response to which the UCO told him that if the entire consignment could be sold for $385,000.00, he (Abbas) could retain $10,000.00, making his total commission $15,000.00.

52. At 12:21pm, Choukor telephoned Abbas and asked whether the UCO would be prepared to sell the tobacco in two or three lots. Abbas suggested that Choukor take the entirety of the tobacco in one lot, that he pay half the cost initially, and that he pay the balance in two or three weeks. Choukor said that he would let Abbas know if that was suitable.

53. At 4:19pm Abbas telephoned Doughan who raised concerns about some of the flavours, and said that they should get a further discount. Abbas told Doughan that this had already been attempted. They discussed taking delivery of the tobacco in two days’ time.

54. At 11:11am on 1 July Abbas telephoned Choukor who said that he was not keen on taking the tobacco because it included a number of flavours that would be difficult to sell. Abbas agreed, saying:

I reckon don’t take them, don’t take them, that’s what I reckon.

55. Choukor also referred to the fact that there was only two months left before the expiry date. He said that he would get back to Abbas.

56. Abbas telephoned Choukor again at 12:15pm. Choukor asked if he was able to buy only the apple flavour for $110.00 per kilogram, telling Abbas that he had a purchaser for the entirety of it. Choukor directed Abbas not to tell Doughan anything, and that it was just between “you and me”. Abbas said:

I will call the man now.

57. Abbas and Choukor spoke again at 11:12am the next day, 2 July, when Choukor asked Abbas to check if “he” (i.e. the UCO) could reduce the price of some of the flavours. No specific reduction was mentioned. Choukor said that he would bring Abbas the deposit later that day.

58. At 11:53am Abbas telephoned the UCO and said that “they” wanted the entirety of the tobacco for $320,000.00. In the absence of any evidence to suggest that Choukor had suggested that price, the sentencing judge found that in making that offer Abbas was attempting to make a profit. In any event, the UCO refused, and said that $375,000.00 was his lowest price.

59. Abbas telephoned the UCO at 3:38pm, and said:

All he wants is the Two Apples.

60. The UCO then offered to sell the entirety of the tobacco for $350,000.00, and told Abbas if that if this was not accepted, there was a person in Queensland who would buy it. Abbas said:

I’m not making nothing bro, I’m not even making a dollar, I’ve worked all this not making, you know what I mean.

61. At 3:44pm Abbas telephoned Doughan who agreed to pay $380,000.00 for the entirety of the tobacco. Abbas said:

I’m not making anything. I have to make something like something small, I swear to God, I’m not making anything I swear to God.

62. At 4:09pm Abbas telephoned Choukor who agreed to take the tobacco and said:

As Bilal told you get him to fix something in relation to the price.

63. When Abbas told Choukor that he had already tried to do so, Choukor agreed to take the tobacco for $380,000.00. Choukor told Abbas:

Tell him we pay half and four weeks half, or after three weeks.

64. In a further conversation at 4:15pm between Abbas and Choukor it was confirmed that Choukor and Doughan would take the entire consignment of tobacco for $380,000.00.

65. At 4:16pm Abbas and Ahmad telephoned the UCO and offered to purchase the tobacco for $340,000.00. The UCO agreed to a price of $345,000.00, with $180,000.00 to be paid in advance, and the balance in 3 to 4 weeks.

66. At 3:44pm the following day, 3 July, Abbas telephoned Doughan and they confirmed that the purchase was to go ahead.

67. Abbas then telephoned the UCO at 4:28pm and said:

My people don’t want it no more. They don’t want the molasses no more.

68. The UCO responded by saying that he would “take it to Queensland”. At 6:03pm the following exchange of messages took place between Abbas and the UCO:

UCO: okay your buyer def out?

ABBAS: 110%

69. However, at 11:55am on the following day, 4 July, Abbas telephoned the UCO and asked him if the tobacco could be delivered that day as he (Abbas) had another buyer for it (which was obviously untrue, given that the confirmed buyers were Choukor and Doughan). The UCO said he would deliver it on the following Monday (6 July) in two truckloads. In a conversation at 12:04pm, Choukor agreed with Abbas to take delivery on that day.

70. At 12:59pm Abbas telephoned the UCO and they discussed arrangements for the delivery of the tobacco. Doughan telephoned Abbas at 8:44pm and they also discussed those arrangements.

71. At 12:02pm on 5 July the UCO telephoned Abbas and they had a further discussion regarding the arrangements for the delivery of the tobacco. At about 6:00pm Abbas and Ahmad met the UCO and in the course of that discussion the price of $345,000.00 was confirmed. There were further discussions regarding the timing of the delivery which was proposed for the following day.

72. At 8:45pm Abbas telephoned Doughan and they discussed the delivery arrangements. Doughan said that he would meet Abbas at Choukor’s warehouse.

73. In all of these conversations, Choukor, Doughan and Abbas referred to the UCO as either “the male” or “the man” in an effort to avoid detection.

74. At 11:00am on 6 July the UCO drove a truck containing part of the consignment of tobacco to Arncliffe where he was met by Ahmad, who took him to his home to await the truck being unloaded. At 11:14am Abbas telephoned the UCO and asked him if he knew how many boxes were in the truck. The UCO told him that there were 410.

75. Choukor took the truck and drove it to Pendle Hill where he met Doughan, following which they unloaded the tobacco and put it in a residential garage. The sentencing judge rejected a submission advanced on behalf of Doughan that in assisting Choukor in that regard, he (Doughan) was doing no more than acting as an agent for someone else.

76. At 2:53pm Abbas telephoned the UCO at which time they discussed the delivery of the second truckload of tobacco. It was agreed that Abbas would take 15 boxes from that load for himself, on the basis that he was not going to make any money from the venture. The sentencing judge found that this was not correct, as Abbas was in fact going to receive a commission.

77. The UCO then took possession of the (now empty) truck. At about 3.45pm he telephoned Abbas and asked:

How many boxes did you say your buddies reckon there was?

78. Abbas responded by saying that there were 383 boxes, in circumstances where there had actually been 410, all of which had been unloaded by Choukor and Doughan. The UCO responded:

Mate, they’ve fuckin’ robbed ya.

79. At 4:36pm Abbas telephoned Choukor and told him of his conversation with the UCO. Choukor responded:

No I swear to God 383.

80. There were a number of subsequent conversations between Abbas and the UCO regarding the missing boxes of tobacco.

81. At 5:13pm the UCO spoke with Abbas and said that because a number of boxes were missing, the cost would be adjusted. At 6:00pm the UCO returned in the truck, which was carrying a further 257 boxes of tobacco, each weighing 6kg. Abbas took 15 boxes for sale in the supermarket, and the remaining 242 boxes were unloaded in the garage of the supermarket for Choukor and Doughan to collect. Abbas spoke with Choukor at 6:11pm who said he would collect the tobacco in an hour or so.

82. At 7:20pm Doughan telephoned Abbas and they discussed the missing boxes of tobacco. Doughan was reluctant to collect the boxes that evening and it was agreed that he and Choukor would collect them the following day, Doughan said:

You tell Abbas (Choukor) – ‘I was speaking to Bilal and we said leave it till tomorrow’.

83. Choukor and Doughan subsequently collected the 242 boxes of tobacco.

84. On 9 July, and again on 14 July, the UCO asked Abbas about the sale of the tobacco. Abbas responded:

It’s going all right, it’s going all right …. yeah, the guy took them all.

85. In total, 3,846kg of tobacco was supplied by the UCO on which excise duty of $2,259,986.52 was payable.

86. A total of $332,000.00 was paid to the UCO for the tobacco in the following instalments:

1. $160,000.00 paid in cash by Ahmad on 7 July 2015;

2. $55,000.00 paid in cash by Ahmad and Abbas on 17 July 2015;

3. $87,000.00 paid in cash by Ahmad on 30 July 2015; and

4. $30,000.00 paid in cash by Ahmad on 6 August 2015.

87. Abbas was present at the time of the payment of the money on 6 August 2015 and told the UCO that he had already sold the boxes of tobacco that he had obtained from the UCO and asked for more. Referring to Choukor and Doughan, Abbas said:

That guy that took them all, all he's got left is the shit flavours.

88. The $332,000.00 which was paid to the UCO was the amount referred to in the additional matter that Doughan asked the sentencing judge to take into account when sentencing him for this offending.

89. The sentencing judge made reference [10] to having taken into account additional matters attaching to this offence in respect of Abbas and Ahmad. That reference was not correct. Abbas did not ask the sentencing judge to take into account any additional matter when sentencing him for this offence. The only additional matter that Abbas asked be taken into account attached to Abbas count 1. [11] Similarly, although Ahmad had asked that two additional matters be taken into account, those additional matters attached to Ahmad count 1 and Ahmad count 3 respectively, [12] and not to this offending.

    10. AB 419.

    11. See the schedule at AB 742.

    12. See the schedule at AB 1468 (in respect of Ahmad count 1) and AB 1471 (in respect of Ahmad count 3).

90. In apparently taking these additional matters into account when sentencing Ahmad and Abbas for this offence, the sentencing judge erred. However, such errors were not relied upon, by either Abbas or Ahmad, in their respective applications for leave to appeal against sentence. In any event, and for the reasons set out below, I have come to the view that there is a further error which necessitates each of Abbas and Ahmad being re-sentenced.

Importing goods with intent to defraud the revenue

Abbas count 3

Doughan count 1

91. The sentencing judge found the facts of this offending to be as follows. [13]

    13. Commencing at AB 420.

92. In about February 2015, an order was placed for 228 boxes, each weighing 250g, of “Nakhla” brand tobacco to be shipped to Australia from Doha, Qatar. An airway bill dated 23 February 2015 falsely described the consignment as “personal effects", and nominated the consignee as “Ali Ibrahim". The telephone contact number provided was a telephone service used by Abbas. The consignment departed Doha on 24 February and arrived in Sydney on 26 February where it was processed by Toll Dnata (Toll), a cargo and logistics company.

93. At 3:46pm on 27 February Abbas spoke with Doughan in the course of which they discussed the consignment. Abbas said to Doughan:

You give me the green light to try a different broker, huh?

Doughan replied:

Yeah.

94. Abbas and Doughan spoke again at 10:43am on 2 March, at which time Abbas agreed to collect the consignment. In a series of calls later that day, Abbas made enquiries with a number of courier companies about collecting the consignment from Toll. In the course of those calls Abbas described the contents of the consignment as “curtains", a term which he had used in conversations with Doughan to refer to the tobacco.

95. At 2:05pm, authorities attended Toll and examined the consignment, which was found to contain the 228 boxes of tobacco. The tobacco was removed from the boxes and retained by the authorities before being substituted with paper, following which it was returned to Toll for delivery.

96. At 3:45pm Abbas telephoned Toll and asked what time the business closed for the day. Abbas’ brother Jawad Elzein (Jawad), and his friend Abbas Dufar (Dufar), later attended Toll and took delivery of the boxes. Jawad telephoned Abbas to tell him that he was on his way back, following which they opened the boxes and found them to contain paper.

97. Abbas spoke with Doughan at 6:13pm and told him that the boxes were full of paper. Doughan asked Abbas:

What happened to the weight under which they were shipped?

98. Abbas repeatedly told Doughan that the boxes contained paper weighing about 20kg or 30kg. Doughan said:

Don't touch it, don't touch it.

Abbas replied:

Okay, okay.

99. Doughan was obviously aware that the consignment should have contained tobacco.

100. At 6:21pm Abbas again spoke to Doughan and said that the consignment was full of paper. He told Doughan that Jawad had taken a picture and would send it to him.

101. At 7:27pm Abbas again spoke with Doughan, who reminded Abbas that he had said that he was going to send a picture of the consignment. Abbas again said that Jawad would take a picture and send it. Doughan and Abbas arranged to meet at 12 noon the following day, Doughan being concerned to verify what had been contained in the consignment.

102. At 3:47pm on 3 March Doughan and Abbas spoke again and discussed who had gone to Toll to collect the consignment. Abbas said:

My brother Jawad went down with him.

103. At 12:32pm on 4 March Doughan and Abbas spoke again. Doughan explained that he had previously telephoned Abbas “to send me the photo that your brother has in the van just to clear myself".

104. Between 16 March and 20 March employees of Toll made attempts to contact Abbas about the consignment. Various messages left for “Ali” to call Toll were not returned by Abbas.

105. The 57kg of tobacco which was imported and seized attracted excise duty of $32,967.09.

Conspiracy to import goods with intent to defraud the revenue

Abbas count 4

106. In summary, the Crown case in respect of this offending was that between 30 June and 11 August 2015, Abbas, Mohammed Chahine (Chahine), Yehia Assi (Assi) and Mohammed Mourtada (Mourtada) conspired to import 15 boxes of cigarettes containing 7,500 packets (150,000 sticks) of cigarettes into Australia with the intention of defrauding the revenue. The sentencing judge found the facts of this offending (referred to as the “Oporto conspiracy”) to be as follows. [14]

     14. Commencing at AB 424.

107. On 30 June Abbas spoke with Assi and they arranged to meet the following day at the Oporto restaurant in Bexley. There followed numerous conversations between Abbas, Chahine and Mourtada in which they arranged to meet at the same place at that time.

108. On the following day, 1 July, all four persons met and discussed a plan to smuggle tobacco into Australia. One of the principal reasons for the meeting was to enable Abbas to introduce Assi to Chahine and Mourtada. Assi worked at Hellas Pty Ltd (Hellas), a freight forwarding company, and the discussions at the meeting included how Assi might be able to facilitate the importation without any scrutiny by the authorities.

109. The conspirators had a supplier of tobacco who was located in China who had provided Abbas with a number of options for the importation. Abbas arranged a meeting to take place with an associate of that supplier on 8 July and invited Chahine to attend, who in turn invited Mourtada. At the meeting, Abbas said that Chahine was looking to import three boxes for the price that they (i.e. Abbas and the supplier’s associate) had previously discussed.

110. Between 24 July and 31 July Chahine and Mourtada made multiple telephone calls, and sent multiple messages, to Abbas, regarding options for the smuggling of the tobacco. Both Chahine and Mourtada became concerned and agitated about the length of time that Abbas was taking to provide those options, and his failure to respond to their communications. The fact was that Abbas was in the process of discussing the options with Assi, having met with him for that purpose on 23 July and 29 July.

111. On 1 August 2015 Abbas sent two messages to Mourtada providing options for smuggling cigarettes and tobacco into Australia, Abbas having settled on those options in the course of his previous discussions with Assi. Abbas also communicated these options to Chahine, all of which involved Assi handling the importation through Hellas. The first of the two messages, sent by Abbas at 10:41am on 1 August, was in the following terms:

Okay first option is we buy the stock from there and send it to his office and he will take $10 per kilo for shipping and 500 for his work.

112. The second, sent at 10:45am on the same day, was in the following terms:

Another option he will get us cigs box for 200 per box and then we pay shipping $10 per kilo and 500, other option is Fakher, he told her he could get bulk at $150 per box plus shipping and $500.

113. The various references in the messages to “his office”, “he” and “his” were references to Assi who, as I have noted, worked at Hellas.

114. At 12:57pm Chahine and Mourtada spoke about the messages they had received from Abbas. When Mourtada asked Chahine about what option they should take, Chahine said that they could talk about it when they saw each other.

115. When they spoke at 2:12pm, Chahine told Mourtada about some calculations that he had done, and suggested that they import 15 boxes containing a total of 750 cartons. Chahine said that Abbas had told him that he would buy each carton for $70.00, a total payment of $52,500.00, meaning that after expenses they would make a total of $45,000.00, or $22,500.00 each. The sentencing judge found that this conversation demonstrated that Chahine and Mourtada did not intend to pay excise duty on the tobacco to be imported. Specifically, his Honour found that the profit discussed by Chahine and Mourtada demonstrated that they had failed to take the applicable excise duty of $70,515.00 into account, and that had they done so, they would have suffered a loss of $25,515.00, rather than making a profit of $45,000.00.

116. On 5 August Mourtada spoke with Chahine about a proposed move by Hellas to a different business address. Chahine stated that he had spoken to his “mate", who spoke to the “guy here", who said that he could “clear it", which the sentencing judge inferred was a reference to the fact that Assi had said that he would be able to clear the smuggled tobacco, but that if they wanted to do a “under bond" move they would have to wait two weeks until the issue of a new licence to Hellas.

117. On 7 September 2015 Hellas was granted a depot licence for its then business address at Wolli Creek. The licence related to goods arriving in, or departing from, Australia by sea or air, and set out a number of conditions, including that:

1. goods subject to control by the Australia Customs Service (Customs) could not be moved without permission; and

2. Hellas was required to obtain approval from Customs to change its business address.

118. There were also conditions relating to:

1. the storage of goods subject to Customs control within the depot;

2. Customs access for the purposes of conducting compliance checks; and

3. the physical security of the depot.

119. On 10 August Hellas lodged an application with Customs to move its premises from Wolli Creek to Moorebank. On 11 August Mourtada discussed this move with Abbas who said that “he” (Assi) could “clear it but if something happens he can't move it". The sentencing judge interpreted this as a reference to the fact that Assi could clear the smuggled cigarettes, but that if something happened he (Assi) would not be able to move it because he did not yet have a depot licence for Hellas’ new address. Abbas told Mourtada:

He’s moved warehouses, he just needs the approval from C

120. The sentencing judge interpreted the reference to “C" as being a reference to Customs.

121. In the same conversation with Mourtada, Abbas said:

They’ve got to come and inspect his warehouse.

122. Abbas and Mourtada decided that they would wait until Hellas’ new business address was approved before smuggling the cigarettes.

123. On 21 September Customs granted Hellas approval to operate from their new premises pursuant to the depot licence which had been issued on 7 September.

124. At the time of their arrest in late September 2015, the conspirators were engaged in an advanced plan to smuggle 750 cartons of cigarettes into Australia. The essence of the plan was that Chahine and Mourtada would fund the importation, Abbas would provide assistance and then purchase the cigarettes, and Assi would provide freight forwarding and other services through Hellas, and would facilitate the release of the cigarettes without attracting the attention of the authorities.

125. The amount of duty payable was $70,515.00. However, in light of the fact that the planned importation had not actually been effected, there was no actual loss to the revenue.

Conspiracy to dishonestly cause a loss to a Commonwealth entity

Abbas count 5

Ahmad count 3

126. The sentencing judge found the facts of this offending (referred to as the “Dubai conspiracy”) to be as follows. [15]

     15. AB 430 and following.

127. On 8 April Abbas and Ahmad met with the UCO who outlined a plan to import two containers containing approximately $2 million worth of cigarettes. He said that he needed a broker to “land” them and told Abbas that if he (Abbas) could provide someone to perform that role, he (Abbas) could have “first bite of the lot". The UCO explained that he needed the broker to ensure that the containers “didn't get flagged”, a reference to the necessity to ensure that the consignment was not overseen by Customs so that the payment of excise duty could be avoided. The UCO told Ahmad and Abbas that he would sell them the cigarettes for $5.00 per packet. In response, Abbas said:

I've got a guy, two guys actually, who could assist with the importation.… It might cost us a bit.

128. The UCO indicated that he was happy to pay, following which there were discussions about meeting up with other persons. Abbas said that he wanted to “take a cut” when the cigarettes arrived.

129. Abbas subsequently introduced the UCO to Assi, Mouhammed Jomaa (Jomaa) and Rahma Zein (Zein). Zein was a cousin of Abbas and was an import supervisor at Capital Distribution Services (Capital), a freight forwarder with headquarters in Hong Kong. Jomaa was employed by Qube Logistics, a provider of import and export services. All of them agreed to use their knowledge, experience, and employment in the waterfront industry, to facilitate and monitor the importation, and to warn of possible law enforcement interest. In that sense, whilst the agreement was one to illegally import cigarettes, it also encompassed what the sentencing judge described as “the corruption of Customs procedures designed to protect the revenue".

130. On 15 April Abbas met the UCO and they discussed the importation, and the purchase of the cigarettes by Abbas and Ahmad. The UCO indicated that with the assistance of the broker, he would bring the cigarettes to Abbas. Abbas said:

And we'll buy the ciggies off you straight away.

131. Abbas told the UCO that because Assi worked in the international freight forwarding business, and because Jomaa was a broker, both would be able to help with the importation. He also said that Assi had advised him that the containers should be described as “furniture", and should pass through the warehouse where he (Assi) worked, in order to avoid X-ray detection and thus payment of excise duty. There was a further discussion about Jomaa monitoring the container and being paid $50,000.00 for his services.

132. On 21 April Abbas and the UCO met again and they had a further discussion about the proposed importation. Abbas told the UCO that he and Ahmad would take one container one week and the second container the following week, as they could not afford to pay the UCO in advance for all of the cigarettes. Because two containers were to be imported using two separate brokers, the UCO offered a sum of $40,000.00 to be payable to each broker, with an initial deposit of $20,000.00 and the balance becoming payable on arrival of the containers. When Abbas enquired as to what would happen if the container was not cleared, the UCO advised that this was “his risk” and that in that event, the two brokers would keep the money. Abbas then said:

‘Cause I'm not making nothing out of it, I promise to God I'm not, not even a dollar, I'm not even making out of it, these cigarettes come make my money then.

133. At that meeting Abbas described Jomaa (to whom he referred in conversations with the UCO as “Shifty”) as being “experienced”. Abbas also told the UCO that Jomaa had stated that he was reluctant to meet him (i.e. the UCO) in person in case he was a police officer.

134. The UCO gave Abbas the name of two companies that could be named as consignees for the containers, and said that both companies had clean import histories. The first company was “American Golf Supplies” which was a sporting goods company, and the second was “Dietrich Family Trust”, which purportedly imported waterproofing materials. It was proposed that the contents of each container would be falsely described in the shipping documentation as “golf bags” and “waterproofing materials” respectively.

135. At the same meeting, Abbas told the UCO that Jomaa had recommended that the containers not be loaded in Vietnam because items exported from that country were subject to X-ray. The UCO told Abbas that he would write down the details of each company and said that he wanted to give those details to the brokers in person. Abbas also indicated that he would prefer the UCO to meet them, saying:

So like I'm at the back I’ve got nothing to do with it. You’re the buyer. You’re the buyer that's getting it.

136. Following that meeting, the UCO sent a text message to Abbas in the following terms:

Two companies, Dietrich Family Trust (chemical waterproofing, rubber imports) American Gold [sic] Supplies (golf equipment and sporting goods). Both are good companies. Cheers. Talk soon.

137. The UCO sent further information to Abbas, namely that each shipping container would contain 230,000 cartons of cigarettes, and suggested that Abbas would be able to sell them for $8.00 per packet. Abbas said that the sale price would depend upon the brands in question.

138. On 27 April Abbas met the UCO and introduced him to Zein. They discussed the importation and Zein said that she would be willing to oversee one of the containers. She said that she would need an ABN (Australian Business Number) and an authority from the UCO to Capital to handle the importation. She told the UCO to ensure that there was no wood packaging in the container, and that he would need to create an email account and a phone number for each company. She said that she would monitor the importation, provide updates of movements of the container, and confirm any law enforcement interest. She said that if something went wrong:

I don't know you, you don't know me….I've never seen you, you've never seen me.

139. On the same day Abbas telephoned Jomaa and tried to arrange a meeting with the UCO that evening. Jomaa declined to take part. Abbas suggested that he and the UCO telephone Jomaa to which Jomaa responded:

No better you know ask me over the phone.

140. The following day, 28 April, Jomaa again declined to meet Abbas and the UCO, telling Abbas:

No I'd rather not…… get whatever information you can.

141. At 4:38pm on 28 April Jomaa telephoned Abbas. They discussed the importation of the containers, using “soccer balls" as code for payment, and “coach" as code for the UCO. Jomaa told Abbas to “forget about (him) meeting up with (the UCO)”. He said that he did not trust “the other guy" and told Abbas “don't mention me to him by name,” asking Abbas to refer to him as “the Greek guy" when speaking to the UCO.

142. On 29 April Abbas telephoned the UCO and, in respect of Jomaa, said:

(He) says he'll do it but he doesn't want to meet up.… If you want Shifty to do it he'll do it but like he doesn't want to get his hands dirty, you know what I mean? … And yesterday he goes to me 'and make sure you tell him I'm not Lebo I’m Greek'.

143. On 3 May 2015 Abbas telephoned Jomaa and, in reference to the UCO, said:

Hey my Italian mate, we’re gonna help him out?

Jomaa replied:

Yeah, yeah, yeah perfect, perfect, yeah no worries. When I collect those goods we'll talk.

144. On 15 May Abbas met the UCO. During the course of the meeting, Abbas telephoned Jomaa and placed the call on loudspeaker. Using code in part of the conversation, Jomaa told the UCO that he would look after “everything" in relation to the importation and said that he wanted “8 boxes or 100 boxes” (which was code for $80,000.00 or $100,000.00) in return for his assistance. He eventually agreed to accept “8 boxes", half at the start and half on completion. Abbas confirmed in the course of the meeting that he would purchase both containers of cigarettes.

145. Following that call, the UCO and Abbas discussed the fact that Jomaa was raising his price. They agreed to pay Jomaa $20,000.00 in advance. When the UCO asked whether the payment could be made in the form of prohibited drugs instead, Abbas replied:

We’re just cash, that's all we deal with.

146. On 28 May Ahmad met with the UCO and they spoke about the importation. The UCO told them to choose from a selection of “Manchester” cigarette products and to provide him with a list by Tuesday. Abbas said:

There are plenty of Manchesters in the market.

147. The UCO advised that one container was definitely Manchester brand and that he would enquire about including Dunhill and Davidoff products in the other. Ahmad said that he would prefer those brands. The UCO confirmed that it would cost Abbas and Ahmad $1.25 million to purchase each container. Attempts by Ahmad to negotiate a price of $1 million per container were rejected by the UCO. In a further reference to prohibited drugs, the UCO said that he could either accept $1.25 million or:

….take that out in the other product.

Abbas replied:

We don't want anything to do with the other product.

148. On 3 June 2015 the UCO met with Abbas and Ahmad, and said:

There’s only Manchesters available.

149. Abbas then asked that the first container carry Manchester Light Blue cigarettes, and that the second carry half Manchester Red cigarettes, and half Manchester Ultra Light cigarettes. The UCO said:

100%. They’re coming from Dubai so they are the real deal. The big dollars are when we get those two containers here.

150. The UCO provided Abbas with instructions about the invoices and shipping documents to give to Zein as she had forgotten to come to the meeting. When Abbas suggested that one container should go to Brisbane just in case, the UCO said that he was confident that there would be “no drama" and that it would be his fault if anything happened.

151. On 4 June Abbas met the UCO and said that Hellas was in the process of moving to Moorebank and that the new premises would have a quarantine area. Assi then arrived, and Abbas introduced him to the UCO. They discussed the importation of the containers. Assi told the UCO:

We’re going to be the brokers now looking after everything for the importation of one of the containers.… Because the brokers have changed, like maybe it's going to X-ray.

152. Assi said that he would create the false documents required for the importation, and upload them to the Integrated Cargo System (ICS) and would charge $40,000.00 for his services. The UCO then handed Assi a USB stick containing details of the Dietrich Family Trust which was to be the consignee of one of the containers, and told Assi that it was a container of cigarettes coming from Dubai via Singapore. Assi confirmed that the contents of the container would be falsely described as waterproofing materials, and said he would create the packing list and packing declaration, and would upload the bill of lading into the ICS. Assi asked the UCO if he trusted his people in Singapore and Dubai, and the UCO said that he did. Assi also said that he wanted any further communication with the UCO to take place through Abbas.

153. The UCO handed a second USB stick to Abbas who agreed to give it to Zein. That USB contained the details of American Golf Supplies which was to be named as the consignee of the other container. The UCO confirmed that he was going to go to Singapore and if there were any additional charges, he would cover them.

154. On 11 June Ahmad met the UCO at his (Ahmad’s) home, having spoken with Choukor. Ahmad described Choukor to the UCO as “the other man" and said that he had connections in Dubai who could supply any brand of cigarettes cheaply. Ahmad said that Choukor was going to call the UCO as he had been unable to come that day because of a family problem.

155. Ahmad and the UCO then commenced to discuss the importation of the containers. When Abbas joined the conversation, the UCO complained that Jomaa had not been in contact with him, and that he (i.e. UCO) had more material to give him. Abbas mentioned that Zein had the UCO's letter of authority but that she did not need “the other stuff" until a week before the shipping container arrived. The UCO then said that Jomaa needed to know what was going to be in the container. He then handed Abbas two written documents which (falsely) described the product type, amount, price and size of the material contained in the second container. These details were intended to assist in the preparation of the shipping documents. The UCO told Abbas that he had spent all of his money on the purchase of the Manchester cigarettes and wanted the paperwork to be completed. Abbas said that he would contact Jomaa later that day, and told the UCO that he would give a copy of the documents to Zein so that she could complete her paperwork.

152. Abbas then called Assi to clarify various shipping details with him, including the falsified description of the contents provided by the UCO as “Aquagard M Charcoal". Assi told Abbas that he would complete the paperwork and give it to him.

153. On 18 June Abbas met the UCO and they discussed the fact that the containers were due to arrive in six weeks. The UCO asked about the paperwork that he had provided and Abbas said that it was coming and would be completed soon.

154. On 30 June Abbas met with the UCO and said that Zein no longer wanted to be involved. Abbas asked if it would be in order for Jomaa to oversee the second container, and confirmed that Assi was still willing to oversee the first. Abbas suggested that Jomaa was the best person to assist them, saying:

That guy is the shiftiest of the shifty.

159. The UCO said that he needed to meet “Ahmad’s friend” (i.e. Choukor) before arranging the next container. Abbas replied:

My dad's … Abbas is going to take these, he wants to look at them, right.

160. At 3:06pm on 3 July Abbas telephoned the UCO while Assi was present. Assi told the UCO that the “paperwork” (i.e. the invoice, the packing list and the packing declaration) could be prepared after the shipment had arrived. However, the UCO insisted that it be done beforehand.

161. On 5 July Ahmad and Abbas met the UCO and they discussed the purchase price of the cigarettes. Ahmad said that they were unable to take so many boxes of cigarettes due to limited storage space. Ahmad enquired as to the price of the containers, and the UCO told him that the price was $1.25 million per container, a total of $2.5 million for both. The UCO told Ahmad that each container would contain 23,000 cartons of cigarettes, which would equal 230,000 packets. They agreed on a price of $5.00 per packet, Ahmad telling the UCO that Abbas (i.e. Choukor) could source cigarettes for a better price than the UCO. Ahmad also said:

Everyone's getting scared…. say to me what about if he's undercover.

162. In a reference to Choukor, Ahmad said:

I guarantee the other guy he, we’re scared that he's probably undercover.

163. When Abbas re-joined the conversation he said:

A few boys go you were from the Middle Eastern coppers.

164. On 6 July the UCO met with Ahmad. The UCO asked Ahmad if he had any papers from the broker and Ahmad replied:

Not yet, when Abbas comes in.

165. The UCO told Ahmad that one container was to be described as “waterproofing stuff” and the other was to be described as “golf supplies”. He said that his money was all tied up in the cigarettes and he was waiting to get the containers in so that he could move back to his other business (a reference to the importation of drugs). Ahmad did not know that the UCO had prepaid for the containers of cigarettes and said to the UCO (in reference to involvement with drugs):

Better stay with cigarettes.

166. On 9 July Abbas met the UCO and handed him a false commercial invoice and a false packing declaration which had been created by Assi, based on the information which had been provided by the UCO. The documents related to the second container which had been consigned in the name of the Dietrich Family Trust.

167. On 17 July Ahmad and Abbas met the UCO for the purpose of the UCO collecting $55,000.00 as part payment for the tobacco which was the subject of other charges. [16] The UCO asked Abbas if he had heard anything about the invoices. Abbas responded that he was not sure, and that the UCO should come back next week. The UCO confirmed that he would get the two containers of cigarettes into a warehouse, and that Abbas could then “come and buy them”.

     16. Abbas count 2, Ahmad count 2 and Doughan count 2.

168. On 30 July Abbas met with the UCO and handed him a draft packing list, a packing declaration and a commercial invoice, all of which had been created by Jomaa, and all of which were obviously false. There were outstanding details to be completed on those documents by the UCO. There was further discussion about the containers, with Abbas informing the UCO that Jomaa would upload the documents onto the ICS. The documents were ultimately uploaded onto the ICS by an agent at Wiseway Logistics (Wiseway), a brokerage firm which was used by Qube. Whilst Jomaa disputed playing any role in arranging this, the sentencing judge concluded that the inference that he did so was clearly available.

169. On 6 August Abbas met the UCO and they discussed the arrival of the containers. The UCO told Abbas that he had organised one container to be picked up when it arrived at the warehouse and that he wanted a substantial deposit, in the order of $1 million to $1.5 million, and would then provide the warehouse key to Abbas. It was agreed that a full count of the imported cigarettes would be conducted by Abbas and the UCO before delivery. Abbas said:

But like now we’re not taking that up, we’re gonna give it to another wholesaler. He's gonna sell them. … Okay but this guy won't pay us until he receives the stock.

170. The Crown submitted, and the sentencing judge appears to have accepted, that Abbas’ reference to “another wholesaler” was a reference to Choukor.

171. When Abbas told the UCO that he would pay a deposit of $750,000.00 on delivery, the UCO said that this was unacceptable, and that he required $1.5 million as a deposit. The UCO also told Abbas that he still needed to get the paperwork ready. Abbas replied that Assi was “asking (him) for papers”, to which the UCO responded:

Like I said to him, you'll get your 20 when I get the invoice and the boat is on the water.

172. Abbas then called Assi. They had a brief conversation in which Assi said that he did not want to talk on the phone and would meet with Abbas the following week.

173. The UCO and Ahmad then discussed arrangements for the delivery of the cigarettes once they had arrived. Ahmad asked for a smaller delivery by van or truck, but the UCO advised that this was not possible, as he had already invested all of his money in the containers. He said that once the cigarettes had cleared, he would put them in a warehouse, obtain the deposit, and then give Ahmad the key to the warehouse, with the outstanding balance to be paid when the cigarettes were sold. Ahmad replied:

I think that way very hard for us.

174. The UCO responded by saying that this was how was going to work and that he did not:

…care if it takes a couple of months, but upfront, I need my money up front.

175. When the UCO said that he would help Ahmad “move them", Ahmad replied:

To be honest with you it's not gonna be easy on us. … Two, I think very, very hard, it's – it's not easy but I can get my partners, we can manage with one but the second one like it…… 460, we’ll take 300 small shops, they'll take one, it's all right, we can manage here. We can manage both of them together, very hard.… With one, we can manage with one, but the other one's gonna take three or four weeks, something like that.

176. The two containers left Dubai on 27 August. One carried half Manchester Regular Red cigarettes, and half Manchester Ultra Light Grey. The other carried Manchester Light Blue cigarettes only. All of the cigarettes had been sourced by, and provided to, the JWTF.

177. At 10.00am on 2 September Abbas and Ahmad met the UCO to discuss payment. Ahmad told the UCO that he was concerned about law enforcement intervention and wanted the container to be stored for a number of weeks prior to collecting the cigarettes. Ahmad then left the meeting to attend an appointment, following which Abbas and the UCO discussed Assi being able to help with moving the containers. The UCO waited while Abbas telephoned Assi to try and organise a time for him to meet the UCO so that the UCO could give Assi his agreed advance payment of $20,000.00.

178. At 5:53pm, Abbas returned a telephone call from the UCO and they discussed the fact that both Assi and Jomaa wanted more money. The UCO said that he was ready to give each of them an initial payment of $20,000.00 but wanted to negotiate a new fee with them directly. They then discussed the logistics of the delivery and the payment. Abbas said:

Yeah, no we’re gonna pay you up front. We’re not gonna wait until we sell them.…. The man will have the money ready for the 20 pallets right? We take the truck, the guy will get the money here, the money will be in the shop with my dad.

The UCO replied:

If you bring me the money you can take the truck.

179. They agreed to talk again before the UCO met with Jomaa or Assi. The UCO subsequently told Abbas that he wanted a deposit of $750,000.00.

180. On 8 September Abbas met with the UCO. In the course of that meeting Abbas telephoned Assi and they agreed that the three of them should meet a short time later. Abbas and the UCO then met with Assi, at which time the UCO handed Assi a typed document that he (the UCO) had created, which included the container number and details of the purported contents. During the meeting Assi advised that he needed the bill of lading. He negotiated a total fee of $70,000.00 with the UCO for his involvement in the importation and was handed $20,000.00 in cash as a deposit. In reference to the fact that he did not like meeting in person, Assi said:

If it's up to me I don't like to see anyone, that's what I mean…. I wanna stay away.

181. Abbas and the UCO then left.

182. Abbas then received a call from Jomaa. Abbas said:

The guy came past and he gave me a few papers. I will show them to you yeah?

183. Jomaa agreed with Abbas to meet with him in 20 minutes time, telling Abbas:

All right, no worries, bring the drinks with you, I'm waiting.

184. The sentencing judge inferred that the reference to “the drinks" was a reference to the payment of money, in circumstances where Jomaa had repeatedly said that he did not want to meet the UCO personally.

185. Abbas and the UCO then drove to Jomaa’s residence where Abbas met Jomaa in a downstairs garage. The UCO had previously given Abbas a typed document with the container number and a description of the purported contents. A short time later, Abbas returned to the UCO with a handwritten list, requesting the UCO provide Jomaa with (inter alia) a bill of lading. Abbas told the UCO that Jomaa would organise the invoice and the packing declaration. The UCO said he wanted to personally hand Jomaa his advance of $20,000.00.

186. Abbas then left again and walked back to the garage. A short time later, the UCO received a call from Abbas who handed the phone to Jomaa allowing him to speak to the UCO. The UCO told Jomaa that he was going to give Abbas the deposit who would pass it on to Jomaa on his behalf. Abbas then returned and the UCO gave him $20,000.00 in cash. Abbas then left for a third time and returned to Jomaa. He then telephoned the UCO again who spoke to Jomaa and said:

Yeah we’re good?

Jomaa responded:

Yeah, yeah, yeah, yeah, all good.

187. Although Jomaa disputed it, the sentencing judge was satisfied that he was paid $20,000.00 on that occasion.

188. On 14 September Abbas spoke to the UCO and told him that he had spoken to Jomaa over the weekend who had created a handwritten note to the UCO setting out details of how to create an invoice for one of the containers. Abbas and the UCO agreed to meet the following day so that the UCO could collect the note.

189. At 4:00pm on 15 September Abbas and the UCO met and discussed how payment of the deposit for the cigarettes was to be made to the UCO, and the timing of the delivery of the containers. Abbas then telephoned Jomaa and discussed the documents that the UCO had provided, with Jomaa telling Abbas that he was scared to meet the UCO but would accept an electronic copy of the documents. A short time later, the UCO and Abbas travelled in separate vehicles to Jomaa’s residence. The UCO gave Abbas a bill of lading, following which Abbas again met Jomaa in the garage of Jomaa’s residence. A short time later Abbas left the garage in possession of documents given to him by Jomaa which were to be passed onto the UCO. Those documents were handwritten invoices, with a reference to a particular email address, which Jomaa had given Abbas to facilitate the creation of a false invoice for the container consigned to American Golf Supplies. Abbas conveyed, to the UCO, the instructions that Jomaa had given him, namely that the UCO was to create a false invoice using the details provided by Jomaa, and then email the invoice, along with the bill of lading, to the email address which had been provided.

190. The UCO and Abbas also discussed the arrangements for collection of the cigarettes. The UCO suggested that the exchange of money and the collection of the cigarettes from the warehouse take place simultaneously. Abbas suggested that the UCO organise a truck containing the cigarettes, hand over the keys to the truck, and then collect the money.

191. At 8:30pm on 15 September Abbas and Assi met the UCO, at which time the UCO handed a second bill of lading to Assi. Assi told him to email the original, along with the shipping instructions, to an email address at Hellas, which was in fact the email address of Assi’s de facto partner who had access to the ICS. Assi told the UCO what to include in the official invoice, and said that he required the email and the paperwork to be sent immediately, explaining that the documents needed to be loaded onto the ICS urgently to prevent any law enforcement interest.

192. At 5:39pm on 16 September the UCO telephoned Abbas and asked him to follow up the packing declaration and list from Jomaa.

193. At 5:42pm Abbas telephoned Jomaa and they again spoke using coded terms, including “soccer” references. Abbas told Jomaa that the company needed the declaration and the packing list. Jomaa replied that they did not need the list but that if the UCO insisted, he should prepare one himself. Jomaa arranged to meet the following day and provide the packing declaration.

194. At 6:10pm Jomaa telephoned Abbas to confirm the details. Abbas again advised that the UCO required the packing list. Jomaa said that he needed the invoice to create the list. The packing list was later provided to the UCO.

195. At 6:08pm on 21 September the UCO sent a text message to Abbas saying:

Make sure you let the Greek know I don't got any bill from the Maersk shipping company which means he hasn't submitted the documents to them. If I don't pay Maersk they won't clear. Let him know mate.

196. The reference to “the Greek” was a reference to Assi.

197. At 7:46pm on 21 September Abbas telephoned Choukor on behalf of Ahmad, at which time Choukor agreed to meet Ahmad at 6:00pm the following day.

198. At 12:15pm on 22 September the UCO sent a further text message to Abbas saying:

The Greek hasn't done his stuff mate, ship is due tomorrow. If I don't pay the ship company today the container will be held. I need to go and pay ‘em. Greek needs to submit everything now. Shifty all good, already spoke to them and it's all good to pick up but Greek no good mate. Call them and make it happen.

199. The sentencing judge inferred from this message that all of the paperwork was in order in relation to the container for which Jomaa was responsible, but not for that for which Assi was responsible.

200. At 2:20pm Abbas telephoned the UCO and advised that he was meeting with Assi in 10 minutes. When Abbas and Assi met a short time later, Abbas telephoned the UCO. Abbas passed the telephone to Assi who told the UCO that the ship was going to arrive on 24 September 2015,that it would take at least two days to unload it, and that he was going to give the papers to Abbas to pass on to the UCO. Assi later handed Abbas a false packing declaration and a false commercial invoice in respect of one of the two containers.

201. At 5:45pm the UCO sent a message to Abbas stating:

All the documents have been sent to the Greek mate. Thanks heaps man.

202. On 23 September Abbas met the UCO and they discussed the imminent arrival of the containers. The UCO advised that he would organise the truck which would be loaded at the warehouse with the assistance of Abbas. He also suggested that Jawad assist. The UCO said that the truck would then be brought to the back of the supermarket so that he could collect payment, following which the contents of the truck could be delivered to the purchaser. The UCO suggested that two truckloads be delivered on the first day, which would equal one container. He told Abbas that he wanted Zein to:

… double check cause I don't know who these guys are at Wiseway. I don't know who the other guys are that's ringing me and saying alls good.

203. Abbas was hesitant to do so but the UCO insisted, and said that he would “look after" Zein, offering to pay her $5,000.00. When Abbas said that he would call Zein, the UCO gave Abbas four mobile telephone handsets so that they could communicate during the exchange. It was agreed that the UCO would collect Abbas and Jawad on 29 September. During this meeting the UCO offered Abbas some tobacco, and Ahmad some cigarettes, for free, saying:

It's my thank you for everything you've helped me with.

204. A short time later Ahmad met the UCO at his (Ahmad’s) residence and agreed to take two truckloads of cigarettes on 29 September for $480,000.00 per truckload. On that occasion Ahmad said:

They said probably within ten days everything's clear and paid.

205. Ahmad and the UCO also discussed details surrounding the exchange of the money in payment for the cigarettes. In a reference to Choukor, Ahmad told the UCO that he (Choukor) was the man they were going to deal with, describing him as a “very honest man".

206. At 9:11am on 25 September Jomaa called Abbas and they spoke in Arabic using coded terms. Jomaa asked if the container been released, and if arrangements were in place to move it. He warned Abbas that the papers had arrived two days ago but that transport was “not looking good”. Jomaa said, on two occasions:

And try to stop calling just in case.

Abbas responded:

I know that all we spoke about was soccer.

207. At midday on 25 September Abbas met Choukor and they discussed the imminent arrival of the containers. Later that day the vessel MSC Daniela, carrying the two containers, arrived in Sydney. Each of the two containers was carrying 230,000 packets of 20 cigarettes on which excise duty totalling $4,876,883.20 was payable, $2,438,441.60 on each container. Choukor telephoned Abbas at 7:25pm and they arranged to meet a short time later. Choukor subsequently met with Abbas and Ahmad and gave them $350,000.00 in cash for his share of the cigarettes.

208. On 28 September the containers were moved to a terminal in Banksmeadow. At 8:00am on 29 September the UCO met Abbas, Ahmad and Jawad. Ahmad waited behind whilst the UCO, Abbas and Jawad went to the terminal. On the way, Abbas confirmed that Ahmad had received money from Choukor and that the UCO would be paid $350,000.00 for the first truckload of cigarettes. On arrival at the terminal they opened the two containers and Jawad assisted in unloading the first 108,000 boxes of cigarettes into a truck. Abbas then drove the truck to Arncliffe, with Jawad and the UCO following in the UCO's car. After parking the truck, Abbas entered the UCO's car. He told the UCO that the man waiting with Ahmad at the supermarket was “Abbas" (i.e. Choukor) and said that they would give him the keys to the truck. The keys were then given to Choukor with the intention that he would take possession of cigarettes. Ahmad gave the UCO $350,000.00 in cash which he had received from Choukor, with Jawad being present when the payment was made. That amount of $350,000.00 was the amount referred to in the additional matter which Ahmad had asked the sentencing judge to take into account when sentencing him for this offending.

209. The conspirators were subsequently arrested.

THE GROUNDS OF APPEAL – ABBAS AND AHMAD

Ground 1 – The sentencing judge failed to take into account, or give adequate reasons with respect to, a relevant consideration, namely, the prospects of rehabilitation

109. At [22].

323. Basten JA went on to say:[110]

The substantive matters raised in the course of the submissions were addressed by the sentencing judge; the phrase ‘community protection’ did not appear in those submissions. It follows that no complaint can now be made that the judge did not, in the sentencing judgment, use that language.

110. At [28].

324. Adamson J, who agreed with Basten JA, said:[111]

In the present case, his Honour considered that the objective seriousness of the offending and the purposes of general and specific deterrence required the sentence to be served by full-time detention. His Honour's reasons were sufficient to identify the bases on which an ICO was inappropriate. In these circumstances, it was not necessary for his Honour to go through s 66 of the Sentencing Procedure Act and address each consideration, as if each was an item on a list to be ticked off. No assumption is warranted that the sentencing judge was not cognisant of the wording of s 66 or the importance of the matters required to be considered. Indeed, it is plain from the sentencing judgment, when read as a whole, that his Honour was aware of, and applied, s 66 of the Sentencing Procedure Act and concluded that an ICO was warranted in respect of some offenders, but not in respect of the applicant.

111. At [38].

325. In my view, the primary distinction between the circumstances in Mourtada, and those in the case of Doughan, lies in the fact that a specific submission was made to the sentencing judge by counsel for Doughan that an ICO should be imposed. For the reasons set out when dealing with ground 1 of the applications for leave to appeal brought by Abbas and Ahmad, the sentencing judge was obliged to engage with that submission, consider it, and express a conclusion in relation to it. Necessarily, that required a consideration of s 66 of the Sentencing Act. In circumstances where that specific submission was advanced on behalf of Doughan, I am not satisfied that his Honour’s ex-post facto comments in the exchange following sentence discharged his obligation to engage with, and consider, such submission.

326. I am fortified in that view by the observations of McCallum JA (with whom Meagher JA and Simpson AJA agreed) in Wany v Director of Public Prosecutions [112] , that the obligation imposed on a sentencing judge to consider making an ICO may be enlivened, as a requirement of practical justice if not a matter of legal duty, where a cogent argument is advanced for taking that course. Such an argument was clearly advanced in Doughan’s case.

     112. (2020) 103 NSWLR 620; [2020] NSWCA 318 at [52].

327. In making those observations, McCallum JA made reference to the judgment of Campbell J in Blanch v R [113] where his Honour said:

What enlivened the necessity for his Honour to consider, and in the event explain if he was not persuaded, specifically, that an ICO was appropriate was the argument put by counsel. If the argument was to be rejected, his Honour was required to deal with the matter in accordance with the statutory stipulations governing the power to make such an order.

113. [2019] NSWCCA 304 at [69].

328. The reasons of the sentencing judge made no reference at all to the submissions which were advanced on Doughan's behalf as to the disposition of the matter by way of an ICO. It follows that the sentencing judge failed to discharge the obligation which was placed upon him. As a consequence, this ground of appeal is made out.

329. In those circumstances, it is not necessary for me to consider Doughan’s first ground of appeal which asserts that the sentence imposed was manifestly excessive. However, I have taken into account the submissions of both parties, and the authorities to which the Court was referred in respect of that ground, on the question of re-sentence.

RE- SENTENCE – DOUGHAN

330. In re-sentencing Doughan, the Court is again required to specifically consider those matters in s 16A of the Act which are relevant and known.

The nature and circumstances of the offending – s 16A(2)(a)

The course of conduct in which Doughan engaged – s 16A(2)(c)

The need for adequate punishment – s 16A(2)(k)

331. The nature and circumstances of each of Doughan’s offences have been set out above. In assessing the objective seriousness of that offending, I make the following observations.

332. Throughout the period of the offending in Doughan count 1, Doughan was in close contact with Abbas. It is not without significance that Abbas appears to have sought Doughan’s permission to contact what Abbas referred to as a “different broker” immediately before making enquiries with various businesses about the collection of the tobacco. Further, when Abbas discovered that the boxes contained paper rather than tobacco, he immediately informed Doughan who, on more than one occasion, asked Abbas to send him a picture of the boxes to verify what Abbas had told him. All of these factors support a conclusion that Doughan’s role was certainly not peripheral, that it extended over a period of time, and that it involved evasion of a substantial amount of duty.

333. Doughan’s involvement in the offending in Doughan count 2 commenced on 23 June 2015 when he was informed by Abbas that there were four tonnes of tobacco available for a price of $100.00 per kilo. Upon being informed of these details, Doughan immediately suggested that Abbas renegotiate the price to $80.00 per kilo. When later told that the UCO would not separate the consignment, it was Doughan who told Abbas that he and Choukor would “take all of them”. Doughan continued to liaise with Abbas throughout the period of the offending, at one stage suggesting to Abbas that the price should be reduced to $95.00 per kilogram. Later, Doughan raised concerns about some of the flavours which were available, and suggested that this justified a further discount. Ultimately, it was Doughan who agreed with Abbas that an amount of $380,000.00 would be paid for the tobacco. All of these matters are indicative of the level of Doughan’s authority. Doughan was also party to discussions with Abbas regarding the delivery arrangements, and assisted Choukor in the collection of the tobacco.

334. Both of Doughan’s offences involved his engaging in a course of conduct over of time. The significance of offending of that kind, which necessarily involves planning and premeditation, has been previously noted.

Other offences that are required to be taken into account – s 16A(2)(b)

335. Doughan has asked that an additional charge of dealing with the proceeds of crime be taken into account in respect of Doughan count 2, such proceeds being the money paid for the tobacco which is the subject of that count. The manner in which this additional offences to be taken into account has been set out above.

Any injury loss or damage resulting from the offending – s 16A(2)(e)

336. The amount of duty referable to each of Doughan’s offences was as follows:

1. Doughan count 1 – $32,967.09

2. Doughan count 2 - $2,259,986.52.

337. I have previously made reference to the significance of such amounts on sentence.

Contrition – s 16A(2)(f)

338. In a statement which was tendered on sentence, Doughan said: [114]

I accept full responsibility for my actions, and I acknowledge the seriousness of the offences which I pleaded guilty to and referred to in the Agreed Facts.

I am very sorry for what I have done and for my lack of judgment in allowing myself to be a participant in these offences. I apologise to the government, and to my family for what I have put them through. This has been an extremely large learning lesson for me, and I will ensure that I will never participate in any unlawful activity for the rest of my life. I am disgusted with myself for the shame I have brought to myself and my family. My wife and I brought up our four children to be law abiding, productive members of society and we are very proud of all of them. No one in my family has ever been in trouble with the police before this. If my father was still alive, I think I would have been too ashamed to tell him. I think it would have killed him.

114. [127] – [128]; AB 1715 – 1716.

339. Doughan also gave sworn evidence in the sentence proceedings. When asked what he wished to say about the offending, he said: [115]

I'm sorry what I did to my family. And to the Government. And I did through stupidity. It was not that I meant to do it.

115. AB 321.22 to – AB 321.28.

340. Consistent with these statements, a number of the testimonials tendered on Doughan’s behalf made reference to his expressions of contrition. [116]

     116. See for example testimonial of Zakaria Doughan AB 1734 and Hoda Nahlous AB 1737.

341. I am satisfied that Doughan has expressed contrition for his offending.

The pleas of guilty – s 16A(2)(g)

342. Against the procedural history that I have set out, Doughan pleaded guilty on the day of his trial. Bearing in mind the importance of the timing of the pleas when assessing any discount for their utilitarian value, I apply a discount of 12.5%. There is no evidence which warrants any further discount to reflect a willingness to facilitate the course of justice.

Specific deterrence – s 16A(2)(j)

343. Specific deterrence is a relevant consideration in light of the additional matter that Doughan has asked the Court to take into account on sentence in respect of Doughan count 2.

General deterrence – s 16A(2)(g)

344. For the reasons previously expressed, general deterrence is an important consideration on sentence.

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

345. Doughan is 62 years of age. He has no criminal history and, in light of the testimonials tendered on his behalf, he is clearly a person of prior good character and is entitled to have that factor taken into account. He was born in Lebanon and endured several years of difficulty living in the civil war, as a consequence of which he was forced to move to Saudi Arabia in order to gain employment and provide support for the other members of his family. He completed an apprenticeship as an electrician in Saudi Arabia where he remained for 13 years. Following the death of his father in 1982, he became the principal source of financial support for his family. He was married in 1988, his wife being an Australian resident. Following their wedding, Doughan and his wife came to Sydney. They have four children.

346. Following his arrival in Australia, Doughan was required to undertake further study so that his overseas qualifications as an electrician would be recognised in this country. He completed those additional studies, received his trade licence and established his own business. A significant work injury subsequently rendered him unable to carry on as an electrician, following which he opened up a grocery store in which he worked full time, seven days per week. That business came to an end due to an issue which arose regarding the lease of the premises from which it operated. As a consequence, and not being able to return to work as an electrician due to his previous injuries, Doughan opened an import/export business which appears to have been successful.

347. Dr Olav Nielssen, psychiatrist, diagnosed Doughan as suffering from an anxiety order (panic disorder) as well as a depressive illness. [117] He concluded that Doughan would be likely to derive some benefit from expert counselling in the management of anxiety symptoms, supportive counselling to help him with strategies to overcome symptoms of depression, and a review of his medical treatment. [118]

     117. AB 1729 – AB 1730.

     118. AB 1731.

348. Dr Nielssen’s report also made reference to the clinical notes of Doughan’s GP, Dr Tadros, which confirmed a prior diagnosis of coronary artery disease in 2000 and the prescription of medication for a number of conditions including high blood pressure and back pain. [119] I am satisfied that these factors render Doughan’s conditions of custody more onerous, as does the impact of the current pandemic which, amongst other things, restricts the availability of personal visits.

     119. AB 1729.

The prospects of rehabilitation – s 16A(2)(n)

349. In his report, Dr Nielssen made the following observation: [120]

Mr Doughan was assessed to have good prospects for rehabilitation and have a low likelihood of further offences of a similar nature, or any other offence. There was no past history of criminal charges or any pattern of antisocial behaviour. He reported consistent employment and work in his own business, and reported a successful family with strong community ties.

120. AB 1730.

350. These observations were consistent with those made in testimonials tendered on Doughan’s behalf, including that of his brother who expressed confidence that this offending would remain “a one-off incident” from which Doughan would “learn valuable lessons”. [121] It is also evident that Doughan enjoys the support of his family and friends, and his unchallenged evidence before the sentencing judge was that he “will ensure that [he] will never participate in any unlawful activity for the rest of [his] life.” [122] Finally, a sentence assessment report assessed Doughan as being at a low risk of reoffending. [123]

     121. AB 1735.

     122. AB 1715.

     123. AB 1551.

351. In all of these circumstances, I am satisfied that Doughan’s prospects of rehabilitation are favourable.

Delay

352. I have previously set out the principles which govern the extent to which, and the basis on which, delay may be taken into account as a mitigating factor. Dr Nielssen reported that since being charged, Doughan had developed anxiety and depression for which he had consulted Dr Tadros who had prescribed medication. This was in circumstances where Dr Nielssen noted that Doughan had not reported any contact with any mental health services, or any episodes of depression, prior to being charged. [124]

     124. AB 1727.

353. Doughan’s position in terms of delay is not dissimilar to those of Abbas and Ahmad. I am prepared to infer that the delay in the finalisation of proceedings has contributed to the stress and anxiety suffered by Doughan, and have taken that factor into account on sentence.

Consideration of an Intensive Correction Order

354. Section 66 of the Sentencing Act mandates that community safety must be the paramount consideration in determining whether to make an ICO and that when considering that factor, the Court must assess whether making an order for serving a sentence by way full time detention is more likely to address any risk of offending.

355. However, when considering the imposition of an ICO, the Court must have regard to all relevant factors, including the need for general deterrence, the prospects of rehabilitation, and the need for adequate punishment. [125] Importantly, this Court has observed that by stipulating in s 66(1) of the Sentencing Act that community safety is the paramount consideration, the legislature should not be taken to have intended that this be elevated to a mandatory consideration in the sentencing exercise, in the sense that it should dominate considerations of broader sentencing principles, including considerations which may dictate that no lesser sentence than one involving a full time custodial term is appropriate. [126]

     125. Fangaloka at [60] – [61].

     126. Karout v R [2019] NSWCCA 253 at [88] per Fullerton J, Hoeben CJ at CL agreeing, Brereton JA dissenting.

356. Further, it is uncontroversial that cases in which a Court may decline to consider imposing an ICO will include those where the Court is satisfied, not only that there is no alternative to a sentence of imprisonment, but also where factors require no lesser sentence than full time custody. That may be because of the need for adequate punishment, general deterrence, denunciation, or the need to recognise the harm done to the victim and the community. Those considerations are not to be regarded as being reduced, by the operation of s 66, to a subordinate role. [127]

     127. Fangaloka at [61] per Basten JA, Johnson and Price JJ agreeing; Karout at [89] per Fullerton J.

357. In my view, the objective seriousness of Doughan’s offending, the amounts of duty involved, and the need for general deterrence warrant the imposition of a sentence of full time custody. I am not persuaded that such a sentence should be served by way of an ICO.

Parity

358. In determining an appropriate sentence, the Court must apply principles of parity as between Abbas and Doughan.

359. In terms of Doughan count 1, Doughan’s day to day role was substantially less than that of Abbas. However in a hierarchical sense, there is evidence which would support a conclusion that Doughan’s position was in fact higher. It was Doughan from whom Abbas sought a “green light” to “try a different broker”, and who reported to Doughan regarding the progress of the consignment.

360. In terms of Doughan count 2, Doughan was responsible for taking possession of the tobacco and liaising with Abbas in relation to the price. He also asked that an additional matter be taken into account when sentencing him for this offence. However, Abbas’ involvement in an overall sense was far greater, particularly in terms of the negotiations conducted with the UCO as to price.

361. In in terms of the respective subjective cases, Doughan is substantially older than Abbas and thus has a longer period on which to draw in terms of his prior good character. He also has health issues which impact upon his conditions of custody, and which have no role to play in Abbas’ subjective case.

362. Having regard to all of these factors, I have come to the conclusion that Doughan’s sentence, in each case, should be less than that imposed on Abbas.

363. I have set out my proposed orders below.

ORDERS

Abbas Elzein

364. In respect of the application for leave to appeal against sentence of Abbas Elzein, I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

Ahmad Elzein

365. In respect of the application for leave to appeal against sentence of Ahmad Elzein, I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Sentences imposed in the District Court quashed.

4. In lieu thereof, Ahmad Elzein is sentenced as follows:

1. in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 1), 16 months’ imprisonment commencing on 26 August 2020 and expiring on 25 December 2021;

2. in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 2), 20 months’ imprisonment commencing on 26 November 2020 and expiring on 25 July 2022;

3. in respect of the offence of conspiracy to dishonestly cause a loss to the Australian Border Force (referred to this judgment as Ahmad count 3), 24 months’ imprisonment commencing on 26 June 2021 and expiring on 25 June 2023.

5. The total effective sentence is one of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023.

6. Pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022.

Bilal Doughan

366. In respect of the application for leave to appeal against sentence of Bilal Doughan, I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Sentences imposed in the District Court quashed.

4. In lieu thereof Bilal Doughan is sentenced as follows:

1. in respect of jointly committing an offence by entering into an agreement to import tobacco products with intent to defraud the revenue (referred to in this judgment as Doughan count 1), 15 months’ imprisonment commencing on 26 August 2020 and expiring on 25 November 2021;

1. in respect of jointly committing an offence by entering into an agreement to possess goods, namely tobacco products, knowing that the goods were imported, within intent to defraud the revenue (referred to in this judgment as Doughan count 2), 22 months’ imprisonment commencing on 26 November 2020 and expiring on 25 September 2022;

2. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released on 25 December 2021, upon giving security in the sum of $100.00 without surety, on a recognizance to be of good behaviour for a period of 9 months.

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Endnotes

Amendments

26 April 2022 - Order (6) made by this Court on 27 October 2021, specifying the imposition of a single non-parole period of 1 year and 11 months imprisonment commencing on 26 August 2020 and expiring on 25 July 2022, is revoked.

In lieu thereof, pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022.

Decision last updated: 26 April 2022