CDirector of Public Prosecutions v Akel

[2018] VCC 1124

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-01438

THE QUEEN

v

MOUSA AKEL

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2018
DATE OF SENTENCE:	20 July 2018
CASE MAY BE CITED AS:	CDPP v Akel
MEDIUM NEUTRAL CITATION:	[2018] VCC 1124

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Hassan	Commonwealth Department of Public Prosecutions
For the Accused	Mr J. Saunders	Thexton Lawyers

HER HONOUR:

1Mousa Akel, you have pleaded guilty to one charge of possessing manufactured tobacco, whilst knowing or being reckless as to whether the tobacco was subject to excise duty, or excisable goods, and on which excise duty had not been paid.

2An Australian Taxation Office and Australian Federal Police investigation in late 2013 through into the first half of 2014 revealed that there was a large-scale operation involving the unauthorised growing, manufacture and storage of tobacco across four properties located in Tarneit, Mt Cottrell, Oaklands Junction and Coolaroo.

3Three men, Kamarelddin, Saoud and Fernandez, were all identified as being involved in, and really the principals involved in, that operation. 

4They were all charged with, and have since been convicted by a jury of offences related to the defrauding of the Commonwealth by reason of non-payment of excise duty on the tobacco manufactured, processed and stored by them as part of that operation.

5Two of them have now been sentenced by me, following jury verdicts of guilt, to terms of imprisonment, including a component of imprisonment to be immediately served.

6The plea submissions in respect of the third of them, Mr Kamarelddin, have not been concluded, and he has been remanded in custody pending completion of his plea submissions.

7As part of the investigation into the activities of Kamarelddin, Saoud and Fernandez, in relation to the growing and processing of the tobacco, a search warrant was issued at your family home at 6 Kinnear Avenue in Tarneit.  That home was occupied by you, your wife, and at that stage the one young child of that relationship.

8Found in the garage were 251 brown cardboard boxes stacked against the wall.  Those boxes were the same as a large number of boxes which had been found in one of the other properties, a factory at Glenelg Road, Coolaroo, where Fernandez and Kamarelddin had been involved in the processing of the tobacco grown at other rural properties.

9In addition to the boxes containing tobacco, the 251 found in your garage, was a stack of flat-pack boxes, similar to and related to the activities of the processing and the packing of the tobacco at the Coolaroo factory.

10Of the boxes that were full of tobacco, the 251, each box weighed about 10 kilograms, and the boxes were taped and ready for transportation.  Ultimately that tobacco was tested, weighed and assessed.  There was a total of 2,587.19 kilograms of tobacco in the boxes.

11It was excisable at a rate of $508.01 per kilogram, which meant that the amount of excise payable on that tobacco, had you been properly registered and the excise paid, was in excess of $1 million, $1,314,318.39 to be precise.

12In addition to the cut tobacco in the boxes and the empty flat-pack boxes, investigators also found in the garage two large hessian bales of dried tobacco still in leaf form. That tobacco and hessian in which it was wrapped also related to the activities at one of the properties where the tobacco had been grown in the first place.

13Investigators noticed a strong smell of tobacco in the garage, and also in the laundry area of the house, which was connected to the garage by an adjoining door.  After the investigators had found the boxed tobacco, you told them you had been approached by your father-in-law with an offer to store boxes in your garage because it had space. You said he told  you they contained grocery items. You were to be paid a weekly rental of $200.00 for allowing your garage to be used.

14You produced a handwritten lease agreement between yourself and Mr Fernandez, one of the three principals to whom I have already referred, which indicated that this arrangement had commenced on 10 December of 2013 and entitled you to a weekly rent of $200.00 for that time.

15You told the investigators that at some time after the boxes had been stored in your garage, you realised that they contained tobacco.  You did nothing about having the boxes removed once you understood that they contained tobacco, and indeed you have later said that your father-in-law, who had made the arrangement, you believed to be a good man who would not have knowingly put you in a position of storing illegal goods.

16In any event, you did nothing either with your father-in-law or with Mr Fernandez, the man whose name appeared on the rental agreement, to have the tobacco removed.  And it is those circumstances that give rise to the charge to which you have now pleaded guilty, of possessing manufactured tobacco, knowing or being reckless as to whether the goods were excisable goods on which duty had not been paid.

17Although the search warrant was executed in May 2014, you were not charged until  two years later. It has taken another two years since you were charged for the matter to come to its finalisation in this court today before me.

18Together with the three other offenders to whom I have referred, Kamarelddin, Saoud and Fernandez, you participated in a contested committal.  You were committed for trial and indicated that you intended to plead not guilty to the charge you faced. You maintained that position until very recently.

19Your trial was initially listed to take place with the three co-offenders.  You indicated you intended to apply for a separate trial. As noted, the case against you was different from the circumstances of offending alleged against the co-offenders. The Commonwealth ultimately acknowledged the force of your submissions, and it agreed to a separate trial without the need for a ruling to occur.

20Your three co-offenders faced trial and were convicted, and it was after that, that serious discussions, it would appear, took place and you entered your plea of guilty to this charge.

21It is therefore properly to be regarded as a late plea, but it nonetheless entitles you to the benefits that flow from the plea of guilty.  You have acknowledged your legal responsibility.  You have saved the community the time and cost of a contested trial.  The plea has utilitarian value, and it advances the interests of justice. You are entitled to have those matters taken into account, and to have them reduce the sentence that would otherwise have been appropriate for the offending.

22You have not contested the evidence on the plea, and the submissions made by your counsel, Mr Saunders, very clearly acknowledge the force of the evidence in respect of you, and the way in which the prosecution has put the case, fairly and properly putting the issue of recklessness in relation to the nature of the goods.  It also made appropriate concessions in relation to what was open to be proved as to the time at which you were fixed with the requisite knowledge. 

23The charge, being what was referred to in the course of a plea as a "revenue charge", is one which generally requires significant weight to be given to general deterrence, because it is a charge of avoiding revenue.

24The maximum sentence for the charge is a maximum term of imprisonment of two years, or a fine of the greater amount of 500 penalty units, or five times the amount of duty that would have been payable on the goods.  On the agreed facts placed before me on the plea, the duty that would have been payable on the tobacco in the boxes was $1,314,318.39.  That means that the maximum fine that would be available using that multiplier of five would be in excess of $6.50 million.  That in itself is an indicator that I take into account, as well as the maximum term of imprisonment, which is usually the easier benchmark for assessing the severity of the offence charged.

25It was acknowledged by Mr Saunders in the course of his thorough and very helpful plea that having regard to the amount of tobacco, the amount of excise payable on it, the nature of the charge and the significance of general deterrence in such a charge, that no sentence other than one involving the imposition of a term of imprisonment was appropriate to reflect those matters.  His submission was directed not towards persuading me not to impose a term of imprisonment, but rather towards persuading me that any term of imprisonment should be subject to immediate release upon a recognizance release order.  There is much force in the submissions that he made, and it is the course that I propose to take. 

26I accept the reasons relied on by Mr Saunders, not only in agreement with the Crown as to the need to impose a term of imprisonment to mark the seriousness of the offending and general deterrence, but also the reasons advanced by him as to why in your circumstances, and the circumstances of the offending, immediate release on a recognizance release order is appropriate.

27I have already referred to the fact that you pleaded guilty, and although a late guilty plea, it is one that entitles you to a reduction in the sentence otherwise imposed. In these circumstances in particular I note the contrast between your plea of guilty and the acknowledgement of your guilt, and the putting the prosecution to proof as your co-offenders did.

28The acceptance by you of your guilt and the acceptance of the evidence is something that I consider counts in your favour. 

29The next matter relied on by Mr Saunders was your personal circumstances.  You were 27 at the time of the police raid, and you come before the court as a man now  31.  You came to Australia as a refugee at the age of 14.  You were born in a Palestinian refugee camp in Jordan, and spent your life, until the age of 14, there with your family.

30Whilst it would appear to be a very close and loving family, the circumstances of growing up and spending your whole childhood in a Palestinian refugee camp in Jordan constitute very difficult circumstances, and makes adjustment to a new life in a new country very difficult. 

31You made the adjustment well.  You learnt English, and Dr Zimmerman, who assessed you for the purposes of the plea, spoke of how good your English was, how well you expressed yourself.  You clearly took a real pride in not just obtaining functional English, but learning to speak and communicate as an educated person.

32By all reports, you were a very good student in Jordan, but the age at which you arrived in Australia and the interruption that caused to schooling, meant that you did not do as well academically in Australia as you had in Jordan.  You left school before completing your VCE, and went immediately into steady and well-paid work.  And you have  a good, steady work history behind you from the time of leaving school, pretty much up until now.

33Significantly, from the time you arrived in Australia, despite the difficulties that not speaking English when you started, interrupted schooling, early school leaving and going into the workforce caused, you have not come to the attention of the courts.  At the age of 27, you are a man without any convictions, and in the four years since the police raid, the two years before the charges were laid, and the two years whilst they were hanging over your head, you have not, again, come before the courts.

34You are entitled in those circumstances to have taken into account the benefit, not only of absence of prior convictions, but what that says in terms of positive good character in the face of what I take to be considerable adversity.  So that is the next matter I take into account.

35The next matter I take into account are the circumstances that explain your involvement.  You were very close to both your parents.  Both of them died when you were young and they were young.  It is clear that the effect of the deaths of both of them affected you profoundly from the time they died through until now.

36You have a longstanding depressive illness accompanied by a generalised anxiety disorder.  That can at times be disabling, but you have appropriately sought treatment and engaged in treatment in order to deal with it as best you can, so as to continue to live a fulfilled and functioning life.  And that takes a fair amount of commitment and will.  I take that into account in your favour as showing a strength of character.  That works in your favour.

37You came to be involved in this, I accept from what you told the police and external evidence relating to the circumstances of the offending, through your father-in-law.  You had one young child at the time of this offending.  You have had another one born since.  It was your father-in-law who asked you to store the goods.  I accept the information provided to me in the course of the plea that surveillance evidence revealed a connection between your father-in-law and Mr Fernandez and the factory where the tobacco was being processed.

38A connection that included what appeared to be the transporting of the tobacco to the factory and from the factory by your father-in-law.  I accept that family ties are important for you and your wife, and the early death of your mother and then the death of your father meant that there was probably a greater sense of familial obligation and trust with your father-in-law, because he was by then really the major parental figure in the life of you and your wife.

39Whilst you told Dr Zimmerman, who assessed you for the purposes of the plea, that you considered your father-in-law to be a good man who had been very good to you and your wife, and that you did not believe that he would knowingly put you in a position where you would be facing criminal charges, I am not so sure that is the case, but I do not have to make findings about that.

40It may well be that it was the fact that you were young, the fact that you had no previous convictions, that meant you were seen by those involved to be a who may not have attention otherwise drawn to him, and therefore to maximise for them the prospect of the stored tobacco not being locarted by investigators.

41In a sense one can say that the real reason behind why you are here before the court is that you were unable to say to your father-in-law, once you were aware that there was tobacco in the garage, that you did not want it there. I accept   that your circumstances as I have described them made it difficult for you to say that. It has been no doubt a very confronting and challenging time for you because of that relationship of trust and the familial relationship, and relationship of respect for a parental figure in your life.

42So it is a salutary lesson that because of that familial relationship, and because of the difficult position you were put in, it is you who find yourself before a court, facing a charge, looking at having a conviction against your name, and a record involving a term of imprisonment.

43It is easy in hindsight to say "You should have said to him 'get it out of here'". It is all too easy though to understand the realities of your circumstances generally, and by reason of your longstanding history of depression and anxiety, that you have tried so hard to deal with appropriately, that you found yourself unable to do that.

44And so whilst you do bear a level of culpability, your circumstances also, in my view, entitle you to a real degree of compassion.

45The other things that I take into account in your favour are what I find to be very good prospects for rehabilitation.  You have the absence of prior convictions, to which I have already referred.  And significantly, no coming to the attention of the authorities for anything since the police raid four years ago.

46You have worked hard as a spray painter, and although it clearly causes now some real concern about your physical health - and that is your development of an asthmatic condition, something of which you are rightly afraid because it ultimately was responsible for your father's death - and despite the risk of asthma being triggered by your spray painting, you have continued with that work and continued to be a good supporter of and provider for your wife and young children.

47You are the sole financial provider for the family, your wife being not in paid employment by reason of the youth of the two children.  But your steady history of hard work, your commitment to your wife and family, your commitment to addressing your mental health issues and your absence of convictions, as well as the circumstances of your plea of guilty and your acknowledgment of the case against you, all in my view point very strongly towards your having very good prospects for rehabilitation and very little likelihood of re-offending in like manner, or in fact in any other manner again.  And you are entitled to have that taken into account in your favour.

48You are also entitled to have added to that, in terms of assessing your prospects of conviction, that you came to Australia without the advantages that many people who were born in this country, or who come to Australia from other countries, do.  And that your time when you arrived in Australia was more difficult for you than it can be for other people who come here as young children with their families.

49The other matter I take into account is this longstanding diagnosis of depression and anxiety disorder.  Not only in my view did that make you more vulnerable to the offending itself, but I accept that were you to be sentenced to a term of imprisonment, that that would make imprisonment for you more onerous than it would for people without the nature and extent of your depressive and anxiety symptoms.

50Even if otherwise I thought it was likely that a term of imprisonment with a component immediately served to be appropriate, the nature of your anxiety and depressive condition would, in my view, have tipped the balance in favour of not requiring any of that to be immediately served.

51The other matter I take into account is this.  Although I dealt with - or am still in the process of dealing with the three co-offenders, as I have loosely called them, they were properly to be regarded as principals, or main players, in the growing and manufacturing venture.

52You are, as the prosecution very fairly accepted, properly to be regarded as a bit player, in effect a pawn at the end of their major game.  So a bit player at the tail end of other peoples' enterprise.  Therefore your culpability in respect of your role is also very different, and that too points to a sentence that is markedly different from the sentence that I considered to be appropriate for your co-offenders.  And, given their roles and the nature of the charges to which they pleaded guilty, I accept that the most you stood to gain from this would be a continuation of familial loyalty and maybe the rental if it was actually paid under the agreement.  But you were not a principal, or standing, on the evidence before me, to profit or to share in the profits from the venture in percentage terms.

53All of those matters mean that as far as I am concerned, the seriousness of the nature and circumstances of the offending generally, and of your role in it, is properly and appropriately reflected by a conviction, the imposition with a term of imprisonment, but your immediate release on recognizance release order. And that is what I propose to do.  Could you now please stand?

54Mousa Akel, on the one charge to which you have pleaded guilty, you are convicted and sentenced to be imprisoned for a term of six months.  You are to be released under sub-paragraph 20(1)(b) of the Crimes Act 1914 forthwith, upon giving security by recognizance in the amount of $1,000.00 to comply with this condition that you are to be of good behaviour for six months.

55I have issued this order because you have been charged with the federal offence of possession of manufactured or partly-manufactured goods contrary to s.117(1) of the Excise Act 1901, and I have sentenced you to a term of six months' imprisonment and decided that you be released forthwith if you comply with the conditions of the order.

56I must explain to you, that means you have been sentenced to a term of six months' imprisonment, but you are to be released immediately. You are not to serve any of that term.  However, you must promise to be of good behaviour for the period of six months, and the sum of $1,000.00 is fixed as the recognizance of that promise.

57If you fail to comply with this order, that is, if you are charged with or commit any other offence during the period of this order, or are otherwise not of good behaviour during the term of the six months, then the order can be discharged or varied.  That means that you may forfeit the recognizance of $1,000.00, be required to pay it, and you may also be resentenced for this offence.  Do you understand that?  And are you prepared to give your promise to be of good behaviour to be released on this recognizance of $1,000.00. 

58OFFENDER:  (Indistinct words.)

59HER HONOUR:  Ms Hassan, is that sufficient explanation of the effect of the order and the consequences of non-compliance?

60MS HASSAN:  Yes Your Honour.

61HER HONOUR:  Thank you.  There is a form that you are required to sign that sets out what I have just told you, and that requires you to sign it, acknowledging that you have had the order explained to you, its purpose and effect, the consequences that may follow if you fail to comply with it, including that the order can be discharged or varied, that you agree that you are bound in accordance with the order. 

62That means you agree that you understand that the order has been made and you agree to abide by its conditions.  And I will have that - I will just fill that in and have that handed down to you.  You can take a seat while that is being done.

63Ms Hassan, can you and your solicitor check that first, and then provide it to Mr Saunders?

64MS HASSAN:  Yes Your Honour.

65HER HONOUR:  Thank you.  Do you want your solicitor to check it too?  Belts and braces, but - and could you, Mr Saunders, take it down to Mr Akel, make sure that he understands it and signs the second page.

66MR SAUNDERS:  Just reading this before me, and it notes that Your Honour's associate is one of the people who witnessed the signature, so if she is happy to do so remotely, I am happy to ‑ ‑ ‑

67HER HONOUR:  She will stand beside you, but I would rather you gave it to him and made sure he understood it.  Can you just move the microphone aside a little, Mr Saunders?  Thank you.  Just so you can speak a little bit more privately. 

68MR SAUNDERS:  Thank you Your Honour.

69HER HONOUR:  Thank you.  Sorry, could you stand again for a moment please, Mr Akel?  Could you stand again for a moment?  The last acknowledgement on that page that you signed was an acknowledgement that you have been given a copy of the order.  At the moment I am holding the only copy.  My associate is about to make a copy of it, and that will be given to you, and that will therefore complete the last part of the formalities.  So you must not leave the court until the document has been copied and you have been given a copy of it.  Thank you.

70Any further orders that are required to be made?

71MS HASSAN: There needs to be a s.6AAA declaration Your Honour.

72HER HONOUR: Thank you. Yes, I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to a term of imprisonment of eight months, and I would have fixed the period of one month as the time to serve before being released upon a recognizance release order for a period of seven months, fixed in the sum of $1,000.00.

73MR SAUNDERS:  If Your Honour pleases.

74HER HONOUR:  What that means is, if you had gone for trial and been convicted, I just declared the sentence I would have imposed on your then.  But the six months' release immediately on recognizance in the sum of $1,000 is your actual sentence.  And Mr Saunders will explain that more to you if need be.  Thank you both for your assistance, and the solicitors.

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