Assi v The Queen; Jomaa v The Queen - [2021] NSWCCA 181

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Assi v R; Jomaa v R [2021] NSWCCA 181
Hearing dates: 16 June 2021
Date of orders: 9 August 2021
Decision date: 09 August 2021
Before: Meagher JA at [1]
Garling J at [2]
Beech-Jones J at [3]
Decision:
In respect of the applicant Jomaa:
(1)   Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 25 September 2020; and
(2)   Dismiss the appeal.
In respect of the applicant Assi:
(1)   Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 26 August 2020.
(2)   Dismiss the appeal.

Catchwords:
SENTENCING – importation of tobacco without payment of excise duty – two applicants – each recruited into conspiracy by undercover operative – custodial sentences imposed – each applicant raised parity ground concerning the sentence imposed on the other – rejected – Crimes Act 1914 (Cth) – s 16A(2)(fa)(ii) – whether sentencing judge found factor made out in relation to licensed customs broker – ground made out – no lesser sentence is warranted in law – appeals dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code (Cth).
Customs Act 1901 (Cth)

Cases Cited:
DS v R [2014] NSWCCA 267
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v R (1936) 55 CLR 501
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowev The Queen (1984) 154 CLR 606
R v Taouk (1992) 65 A Crim R 387
Turnbull v R [2019] NSWCCA 97

Category: Principal judgment
Parties: Yehia Assi (Applicant)
Mouhammed Jomaa (Applicant)
Regina (Crown)
Representation:
Counsel:
A Francis (Assi)
A Chhabra (Jomaa)
D Jordan (Crown)
Solicitors:
Criminal defence Group (Assi)
Hanna Legal (Jomaa)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2015/286663; 2015/285081
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26/8/20 (Assi); 25/9/20 (Jomaa)

Before:

Hunt J

File Number(s):

2015/286663; 2015/285081

Judgment

MEAGHER JA: I agree with Beech-Jones J that leave to appeal should be granted to each applicant and that each of the appeals should be dismissed for the reasons his Honour gives.
GARLING J: I agree with the orders proposed by Beech-Jones J, and with his Honour’s reasons for those orders.
BEECH-JONES J: This is an application for leave to appeal from sentences imposed on the two applicants for committing various offences relating to the importation or agreed importation of tobacco in respect of which the proper amount of excise duty was either not paid or not intended to be paid. The main complaint of each applicant is that they have a justifiable sense of grievance arising out the sentence imposed on the other. For the reasons that follow I do not accept either contention.

Background

On 26 August 2020 the applicant, Yehia Assi (“Assi”), was sentenced by his Honour Judge Hunt to a term of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Assi v The Queen; Jomaa v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCCA 181
Decision Date: 09 August 2021

CaseChat Overview and Summary

The two applicants in this case were convicted of importing tobacco without payment of excise duty and each appealed against their respective sentences. The applicants were each recruited into a conspiracy by an undercover operative. Following their convictions, each was sentenced to a term of imprisonment, which they both appealed on the basis that the sentences were excessive. Both applicants raised an additional ground of appeal concerning the parity of sentences, arguing that the sentence imposed on the other should be considered in determining their own appropriate sentence.

The central legal issues before the court were whether the sentencing judge correctly considered the parity argument and whether the applicants' status as licensed customs brokers warranted a lesser sentence. Under the Crimes Act 1914 (Cth), the court must consider whether the person has been convicted of an offence for which a custodial sentence is mandatory and whether the offence was committed in connection with the business of a licensed customs broker. The court needed to determine if the sentencing judge properly considered these factors in imposing the sentences.

The court rejected the parity argument, finding that the sentencing judge had appropriately exercised their discretion in considering the individual circumstances of each applicant. The court found that the factor concerning the business of a licensed customs broker was made out. However, despite this, the court held that no lesser sentence was warranted in law, affirming the original sentencing decisions. The appeals were dismissed, with the court upholding the original sentences imposed on the applicants.

Orders