Legal Research
Cases
Barakat v DPP (Cth)

Barakat v DPP (Cth)

Case [2020] VSCA 185 10 July 2020

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0042

DIB BARAKAT	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

S EAPCR 2020 0056

HASSAN BARAKAT	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

---

JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2020
DATE OF JUDGMENT:	10 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 185
JUDGMENT APPEALED FROM:	[2019] VCC 1997 (Judge Stuart)

---

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Conveying tobacco products with intent to defraud revenue – Total effective sentence of 20 months’ imprisonment with recognisance release after 10 months – Application for leave to appeal granted – Appeal allowed – Resentenced to 8 months’ imprisonment – Customs Act 1901 (Cth) s 233BABAD(1).

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Importing tobacco products with intent to defraud revenue – Total effective sentence of 4 years and 3 months’ imprisonment with non-parole period of 2 years and 6 months – Application for leave to appeal granted – Appeal allowed – Resentenced to 3 years and 3 months’ imprisonment with non-parole period of 2 years – Customs Act 1901 (Cth) s 233BABAD(1).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Dib Barakat	Ms J Swiney	Portfolio Law
For the Applicant Hassan Barakat	Mr P A Chadwick QC	Portfolio Law
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

I agree with Niall JA, whose reasons I have had the advantage of reading in draft.

NIALL JA:

Hassan Barakat (for convenience, ‘HB’) was involved in the importation into Australia of three consignments of tobacco products from the United Arab Emirates. After the arrival of the consignments, and before they had been cleared by customs, the tobacco was collected and driven to a bonded warehouse where it was to remain until tax and duty was paid, or the tobacco exported. On the way to the warehouse, other vegetable matter (which was disguised as the tobacco cargo and had a duplicate airway bill attached) was substituted. The substituted product was delivered into bond and the tobacco into the community. The purpose of the substitution was to evade the substantial tax and duty that were payable before the tobacco could be released. The substituted product languished in the bond warehouse presumably to be abandoned or later exported.

Notwithstanding that there were three separate consignments, HB pleaded guilty to a single rolled up charge of importing tobacco products with the intention of defrauding the revenue in breach of s 233BABAD(1) of the Customs Act1901 (Cth) (‘Customs Act’). He was sentenced to a term of imprisonment of four years and three months. The sentence was structured as follows:

Charge Offence Maximum penalty Sentence

1

Importing tobacco products with the intention of defrauding the revenue (Customs Act 1901 (Cth) s 233 BABAD(1) and Criminal Code 1995 (Cth) s 11.2A(1)).

10 years

4 years and 3 months’ imprisonment

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.

Continue reading Barakat v DPP (Cth)

Details

AGLC: Barakat v DPP (Cth) [2020] VSCA 185
Case: [2020] VSCA 185
Decision Date: 10 July 2020

CaseChat Overview and Summary

The case of Barakat v DPP (Cth) involved two appeals against sentences imposed on two separate individuals for offences under the Customs Act 1901 (Cth). The appellants, Barakat and another individual, were each found guilty of conveying tobacco products with intent to defraud revenue. They challenged the sentences as manifestly excessive. The appeals were heard by the High Court of Australia, which granted leave to appeal in both instances.

The legal issues before the court were whether the sentences imposed were manifestly excessive, considering the nature and circumstances of the offences. The court was required to assess whether the sentences deviated from the principles of proportionality and whether they were appropriate in light of the objectives of the sentencing framework under the Customs Act. The court needed to determine if the sentences imposed were unjust and disproportionate to the crimes committed.

In its judgment, the court acknowledged the appellants' rights to a fair and proportionate sentence. The court found that the sentences imposed were indeed manifestly excessive. In the case of the first appellant, Barakat, the court reduced the sentence from 20 months’ imprisonment with a recognisance release after 10 months to 8 months’ imprisonment. For the second appellant, the court reduced the sentence from 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 6 months to 3 years and 3 months’ imprisonment with a non-parole period of 2 years. The court held that these revised sentences were more aligned with the principles of proportionality and the objectives of the Customs Act.

The final orders of the court were that the appeals were allowed, and the sentences were resentencing to the amounts specified above. The court’s decision emphasised the importance of ensuring that sentences are proportionate to the crimes committed and aligned with the broader objectives of the criminal justice system.

Orders