CDirector of Public Prosecutions v Algazali
[2024] VCC 1180
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00251
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOUSSEF ALGAZALI |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2024 | |
DATE OF SENTENCE: | 2 August 2024 | |
CASE MAY BE CITED AS: | CDPP v Algazali | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1180 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Possess tobacco products knowing goods were imported with intent to defraud the revenue.
Legislation Cited: Customs Act 1901 (Cth) s 233BABAD(2); Crimes Act 1914 (Cth) ss 16A, 16A(2); Australian Citizenship Act 2007 (Cth) ss 24(6); Sentencing Act 1991 (Vic) s 8(1).
Cases Cited: R v Zhang [2017] SASCFC 5.
Sentence: Convicted and sentenced to a Community Corrections Order for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms C. Nicholson | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms J. Pool | RS Chase Lawyers |
HER HONOUR:
1Youssef Algazali, you have pleaded guilty to one charge of possessing tobacco products knowing that the goods were imported with intent to defraud the revenue.[1] This offence is punishable by a maximum term of imprisonment of 10 years.
[1]Customs Act 1901 (Cth) s 233BABAD(2).
2The subject of this charge was your possession of molasses tobacco: a flavoured syrupy mix which is generally smoked in a shisha pipe.
3A summary of prosecution opening for plea dated 26 April 2024 was marked as Exhibit A on your plea, and sets out the factual basis of this sentence. I will refer to parts of it in summary form here.
Importation of tobacco products into Australia
4Tobacco products, like other goods imported into Australia, are subject to customs duty and goods and services tax. The Australian Border Force (ABF) manages the collection of those duties and taxes.
5All cargo coming into Australia has to have an electronic lodgement form submitted into the ABF’s ‘Integrated Cargo System’ (ICS) before its arrival at an airport or port; this allows the ABF to assess any risk and calculate any duties payable on the incoming goods.
6If the customs value of the goods exceeds $1,000, they must be formally entered through the ICS on a statement called a Full Import Declaration (FID). This statement is made by the owner of the importation, or by customs brokers acting on their behalf. When the applicable duty and/or GST is paid by the importer, the ABF releases the goods, and they can then be delivered to their local recipient.
7The duty is payable by the person or entity nominated on the FID as the ‘owner’ of the goods. On 10 March 2021, the date of the offending, the duty payable on molasses tobacco was $1,576.57 per kilogram.
Circumstances of the offending
8On the morning of 10 March 2021, the ‘Illicit Tobacco Taskforce’ executed Customs Act warrants at your home in Lalor.[2] They were authorised to search your house and your van.
[2]1901 (Cth).
9They found 67 packets of various body scrub products in your garage, but concealed inside these was a quantity of molasses tobacco. A more detailed description of those products is set out at paragraph 11 of the prosecution opening.
10In your van they found another 111 packets of various body scrub products, also containing molasses tobacco. Details are set out at paragraph 12 of the prosecution opening.
11Your plea is accepted on the basis that you were reckless as to whether the various scrub products contained tobacco; you possessed the various packages knowing that the goods were imported with the intention of defrauding the revenue.
12The total weight of the molasses tobacco located in your garage and van was 87 kilograms. The total duty that would have been payable is $137,161.59.
13I am obliged to have regard to the matters in s 16A(2) of the Crimes Act 1914;[3] I must impose an order of an appropriate severity in all the circumstances.
[3](Cth).
Nature and circumstances
14The loss to revenue somewhere in excess of $137,000 for a quantity of molasses tobacco weighing 87 kilograms puts your offending not at the lowest end, but in the lower ranges of comparable offending by reference to the quantum.
15I note here that the duty that was payable has not been repaid.
16Yours was an unsophisticated and solo enterprise at what I find is a modest to low scale; you fall to be sentenced in relation to a single date.
17You committed the offence by recklessly buying the product from a supplier; you were offered a good price and thought you would make a better margin in your business by doing so. Your moral culpability, I find, is modest to low.
18I note here that you have no prior criminal history and nothing arising subsequently.
Personal circumstances
19Turning now to your personal circumstances.
20You are 41 years old. You are of Iraqi heritage but you were born in Kuwait, the eldest of 10 children, to your parents Fatma and Hassan.
21In Kuwait you and your family were excluded, on cultural grounds, from citizenship. That status made you vulnerable; you were excluded from higher education and healthcare and could not travel unless on a work visa. You served six months in prison for what you described as having made personal comments critical of the government.
22You are, officially, a ‘stateless’ person and, for now, limited to travel on a stateless person’s travel document; a form of document that is unacceptable for travel to a range of countries, including Kuwait, where your elderly and infirm parents still live.
23In 2010, when you were 26, you left Kuwait on a visa that allowed you to travel for work and went to Indonesia, then on to Australia. You were detained on Christmas Island before being transferred to the mainland due to your ill health. In 2011, you were released from detention and granted permanent residency.
24Your application for Australian citizenship has been halted due to these proceedings. I will return to this matter and how it is put in mitigation of your sentence.
25After your release from immigration detention, you worked first as a cleaner, then in security, and later in restoring and selling cars. From 2014 to 2021, you owned a shisha café in Preston.
26In 2017, you married Bussa, the mother of your two youngest children. You have been separated since 2023, however you maintain a good relationship with her and with the children, who are now aged three and six. Your eldest daughter remains in Kuwait with her mother, your previous partner.
27You currently work full time as a restaurant manager. Part of your earnings go towards payments to your former wife; you also send money to support your parents and siblings in Kuwait.
28You have a small circle of friends. You visit the gym several times a week and attend regular psychological counselling sessions.
Matters in mitigation
Pleas of guilty
29You have facilitated, by entering pleas of guilty, the course of justice. This is a very significant matter in mitigation of your sentence. You conducted a contested committal in February 2024 which was productive in that your plea offer was made the following day and accepted by the Commonwealth Director of Public Prosecutions soon after.
30You have accepted responsibility, and remorse inheres in your plea and in the way you have conducted your case.
Delay
31There was very significant and unexplained delay in the resolution of your case, which had nothing to do with your conduct. The warrant was executed on 10 March 2021, but it was not until nearly two years later, in early February 2023 that you were charged.
32The delay in this matter has had significant consequences for you. It made for years of stress, and you say contributed to the breakdown of your marriage in 2023.
33Further, your application for Australian citizenship was in its final stages at that time and was, as the result of the investigation, paused, and will need to start again. Your expectation is a recommencement of a process taking in the order of two years to resolve. The effect of not obtaining citizenship for you is an inability to travel to see your elderly parents, which causes you great anguish. The delay has been disastrous for you in a range of ways.
34On your plea I was provided with a letter dated 26 July 2024 from your migration consultant. The letter discloses that your citizenship application was refused pursuant to ss 24(6) of the Australian Citizenship Act 2007,[4] due to ‘pending proceedings for an offence against an Australian law.’
[4](Cth).
35It also explains that in future you must pass the ‘good character’ test before you can achieve citizenship in Australia, an exercise which involves assessing your ‘enduring moral qualities.’
36It was also put in that letter that a non-conviction outcome on this case is vital for your future prospects of citizenship. It weighs on you that without the travel documents that would flow from citizenship, you may never see your parents again.
37I must not speculate about the future success or otherwise of your application for citizenship and I do not do so. I do however accept that this aspect of your case, and its uncertain consequences for you, has caused you anxious distress over a lengthy period, and this has imposed punishment additional to that which I will impose, and I take that into account.
38As for the issue of the recording of a conviction or non-conviction in this case: this sentence will be imposed by reference to the matters in s 16A of the Crimes Act1914,[5] to common law sentencing principles, and by reference to other sentences imposed in intermediate appellate Courts, by which I mean I do not tailor this sentence in relation to unrelated and unknowable administrative law processes.
[5](n 2).
Psychological report
39A psychological report authored by Ms Lechner on 12 June 2024 was tendered on your plea. Your background of instability in Kuwait and your imprisonment there still haunts you and has ongoing consequences for your mental health. Ms Lechner’s opinion, which I accept, is that you present with symptoms of depression at a clinical level, and which warrants a diagnosis of Major Depressive Disorder.
40A letter from your treating psychologist confirms you have sought regular psychological treatment since May 2023; the letter also sets out findings consistent with those of Ms Lechner.
Prospects of rehabilitation
41On your plea, you provided a number of references from people who you know in the community. They speak of your generosity, your willingness to help others, and your dedication to your family both here and in Kuwait.
42Your current employer, who also considers you a friend, describes your approach to your work: you are personable, warm and enthusiastic. According to Fadi Nasr, your ability to value and appreciate others has ‘significantly contributed to the success and pleasant atmosphere of [his] business.’ You have also contributed to an Islamic community organisation, and you are described by its President as honest, respectful, and polite.
43You have no prior nor subsequent criminal history. You do not use alcohol or drugs. You have expressed appropriate remorse to others about what you have done, and the Crown accepted this proposition in its submissions. You have demonstrated a capacity to seek help when you need it and to do so persistently. Despite the significant hardship in your history, since your release from immigration detention, you have consistently demonstrated a powerful work ethic. You were assessed as being of a low risk of reoffending in the community corrections order assessment report and I adopt that assessment and find it unlikely that you will reoffend. I find that you have excellent prospects for rehabilitation.
Sentencing principles and practices
44Turning now to the application of the appropriate sentencing principles and practices in this case.
45This category of offending is both difficult to detect and prevalent. The costs of investigating and enforcing offences like yours imposes significant costs on the Commonwealth, meaning, the taxpayer.[6] There is a strong need for general deterrence. The customs system depends upon the honest self-assessment of those importing good from overseas.
[6]R v Zhang [2017] SASCFC 5.
46Moreover, cheap imported tobacco products also bypass the health laws that govern packaging and quality control. It contributes to the broader harm to public health caused by tobacco use.
47I have had regard to sentences for similar offending in Victoria, but particularly to the sentences imposed by intermediate appellate Courts. Both parties provided tables with some similar cases in them. The range of gravity of offending in this category is apparently quite broad. Those cases guide but do not define the exercise of my discretion in your case.
Consideration
48I make it clear that I do not otherwise sentence you with regard to the migration consequences or lack thereof.
49Your counsel submitted that your case called for the imposition of a community corrections order without conviction, but the prosecution’s submission was that while a corrections order was within the range of appropriate dispositions, the Commonwealth sentencing scheme does not and cannot allow for such a disposition to be imposed without also recording a conviction. Later, your counsel confirmed, on reflection, that this was the correct position at law.
50Had it been otherwise, and I was to sentence you by reference to the matters in the Sentencing Act1991 (Vic) at s 8(1), I would have balanced those matters in favour of not recording a conviction, but that is not the task I have here.
Disposition
51If you would stand up for me, please, Mr Algazali. Mr Algazali, you are convicted and sentenced to a Community Corrections Order of 12 months’ duration.
52You must comply with all of the core conditions of the order, and your counsel will give you some advice about that shortly.
53You will need to complete 120 hours of unpaid community work.
54I have considered the question of imposing a mental health treatment condition, but I have accepted the recommendation in the corrections report that as you are already engaged in mental health treatment with a practitioner who you intend to keep seeing, it would not be productive to order you to embark on a different treatment path.
55You must adhere to each of the conditions in the community corrections order. If you do not do so you will be brought back before me and sentenced. However, I consider that to be unlikely.
56You will need, among adhering to the other conditions, to report to the Reservoir Community Corrections Service at 2 pm on 5 August 2024.
57Take a seat, Mr Algazali. We will have the paperwork shown and if you could give Mr Algazali some advice before he signs the order.
58Have I missed anything, Ms Nicholson?
59MS NICHOLSON: Your Honour, just the 6AAA of the Victorian Sentencing Act, but for the plea of guilty, the sentence that Your Honour would have imposed.
60HER HONOUR: I don't think I am obliged to if the community corrections order is less than 24 months. I think I am obliged if a community ‑ ‑ ‑
61MS NICHOLSON: If Your Honour has looked into that, I am happy with that, thank you, Your Honour.
62HER HONOUR: I am pretty certain that that is the case. It is always a bit of an artificial exercise, but even more so at this point and I think it only kicks in at the two years.
63MS NICHOLSON: Thank you, Your Honour.
64HER HONOUR: But thank you. Thank you, my associate has prepared the order. If you could take that to your client please, Ms Poole.
65MS POOLE: Yes, Your Honour.
66HER HONOUR: Yes, Ms Poole, have you had a chance to take Mr Algazali through the conditions?
67MS POOLE: I have, yes Your Honour.
68HER HONOUR: Has he signed up to them?
69MS POOLE: He has, Your Honour.
70HER HONOUR: Good. Counsel, while that was happening, I have been advised that the application for documents by the media has been withdrawn, so I must have made it very dull.
71Is there anything else, counsel?
72MS POOLE: No, Your Honour.
73MS NICHOLSON: No, Your Honour.
74HER HONOUR: Thank you both again for your assistance in this case. We will rise.
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