CDirector of Public Prosecutions v Taleb
[2025] VCC 1377
•5 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00080
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IMAD TALEB |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2025 | |
DATE OF SENTENCE: | 5 September 2025 | |
CASE MAY BE CITED AS: | CDPP v Taleb | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1377 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – Possession of tobacco products in breach of section 233BABAD(2) of the Customs Act 1901 (Cth) – Second offending while on bail in respect of first offending - 268,518 cigarette sticks - 131.8 kilograms loose tobacco – Excise value $558,980 - Rehabilitation prospects-excellent – General deterrence – Recklessness-high – Charge 1-mid range – Charge 2-aggravated by bail – Custodial sentence required.
Legislation Cited: Customs Act 1901 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Tobacco Plain Packaging Act 2011 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Tran v The Queen [2021] VSCA 292; Khanat v R [2024] NSWCCA 41; R v Pham (2015) 256 CLR 550; R v Nguyen [2024] VCC 114; R v Min-Yang Chen [2022] VCC 1860.
Sentence: Total effective sentence - Aggregate sentence of 12 months – Recognisance release order-$1,500-4 months – S 6AAA – 2 years’ imprisonment – Release on recognisance release order after 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague | Commonwealth Direction of Public Prosecutions |
| For the Accused | Mr P. Dunn KC | Dean Cole and Associates |
HIS HONOUR:
1Imad Taleb, you have pleaded guilty to the following:
(a) Two charges of possess goods, namely tobacco products, reckless as to whether the goods were imported with the intent to defraud the revenue, contrary to section 233BABAD(2B) of the Customs Act 1901 (Cth) (‘CustomsAct’).
2Charge 1 carries a maximum penalty of 5 years’ imprisonment, a fine of $780,696, or both. Charge 2 carries a maximum penalty of 5 years’ imprisonment, a fine of $896,246, or both.
3Pursuant to section 233BABAD(5A) of the Customs Act, the fine amount is three times the duty payable on the goods, if the goods were ‘entered for home consumption’, being $260,232.23 and $298,748.73 for charges 1 and 2 respectively.
4You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 28 July 2025, which I note is an agreed document.[1]
[1] Exhibit P1.
Circumstances of offending
5The offending arises from two different sets of search warrants executed on 29 June 2023 and 20 February 2024 respectively.
Charge 1: First search warrant – 29 June 2023
6On 29 June 2023, Victoria Police Officers executed a State and Commonwealth search warrant at your residential address. Upon entering the garage of the property, officers located 24 large cardboard boxes. The officers suspected that the boxes contained illicit cigarettes as the packaging was not in accordance with the Australian design features, per the Tobacco Plain Packaging Act 2011 (Cth).
7The total tobacco seized at your residential address at the time of this first search included:
(a) 235 cartons of ‘Esse’ branded cigarettes, containing 23,500 cigarette sticks;
(b) 500 cartons of ‘Manchester’ branded cigarettes, containing 100,000 cigarette sticks;
(c) 400 cartons of ‘Davidoff’ branded cigarettes, containing 90,000 cigarette sticks; and
(d) 50 cartons of ‘Malboro’ branded cigarettes, containing 10,000 cigarette sticks.
8In total, you were in possession of 223,500 cigarette sticks. It is estimated that the excise value on the cigarettes was $260,232.23.
9Several text conversations were located on your mobile phone in which you discussed the purchase of cigarettes with others. The brands you discussed included cigarette brands located at your residential address at the time of the first search:
(a) On 16 February 2023, you asked Jack Shap Shoup (Jack), ‘what staff did u have. Today’. In response, Jack sent images of cigarettes with Asian character warnings. You asked, “Price please” and Jack indicated, “Esse 75. Marlboro 105. Seven Stars 10mg, 180. Other 16”. You told Jack, “I need 400. I pay 80” and Jack refused.
(b) On 19 February 2023, you asked Jack, ‘How much the esse blue’. You both negotiated the price and Jack told you that he will ask the ‘boss’.
(c) On 21 February 2023, you sent a message to Jack, ‘Malboro red’. Jack sent you images of a packet labelled, ‘Filter cigarettes, Marlboro’. You asked the following day, ‘How much the best price’.
(d) On 22 May 2023, you messaged Shynuz Vito Fren (Shynuz), “Hey brother please don’t forget me about the Malboro”. Shynuz told you, “no problem”. At 12:31pm, you asked Shynuz when he is expected to arrive and Shynuz told you “you ready cash? About 8pm”. You responded, “Yes. 199%” and Shynuz responded, “100x500=55000”.
Charge 2: Second search warrant – 20 February 2024
10On 20 February 2024, officers executed a Commonwealth search warrant at your residential address and at an address in Hoppers Crossing.
11At your residential address, officers located a Toyota Hilux parked on the nature strip. Officers requested the vehicle key which you provided and the Hilux was subsequently searched.
12In the Hilux, officers located a Mercedes Benz Key in the centre tray. The officers asked you about the key and you told them that it was a ‘spare, broken key’ that belonged to a vehicle you had since sold. Upon discovery of the key, the officers contacted the informant at the Hoppers Crossing address. The informant indicated that he had located a locked, Mercedes Benz van situated adjacent to the Hoppers Crossing warrant address.
13At around 9:33am, the officer who located the Mercedes Benz key left your residential address and went to the Hoppers Crossing address. Upon arriving at the address, officers were able to unlock the van with the Mercedes Benz key located in your Hilux.
14Inside the van, officers observed the following:
(a) Several bags were labelled ‘cat food’ and suspected to contain loose tobacco,
(b) Silver bags, suspected to contain lose tobacco, and
(c) Carboard boxes containing mixed cartons of cigarettes.
15At the conclusion of the search, the tobacco seized from the van was itemised and weighed by officers. The total tobacco seized from the van was:
(a) 60 kilograms of loose tobacco, contained within the bags labelled ‘cat food’;
(b) 20 kilograms of loose tobacco, contained within a box with 8 silver bags;
(c) 28.8 kilograms of loose tobacco, contained within 16 silver bags;
(d) 28.8 kilograms of loose tobacco, contained within a garbage bag;
(e) 75 cartons of ‘Malboro Ice Blast’ branded cigarettes, containing 15,000 cigarette sticks;
(f) 150 cartons of ‘Esse Menthol’ branded cigarettes, containing 30,000 cigarette sticks; and
(g) 18 individual cigarettes, branded ‘Benson & Hedges’.
16According to your counsel, you were ‘aware that the van was going to be used to courier illegal cigarettes and tobacco for reward’.[2] However, you ‘believed the van would be driven by [your brother]’ and that you had thereby ‘distanced yourself from the illegal activity’.[3]
[2] Defence Submissions on Plea dated 28 May 2025, 3 [1.14] (‘Defence Submissions’).
[3] See ibid.
17Despite this belief, as you had the key to the van, you were in possession of 45,018 cigarette sticks and 131.8 kilograms of loose tobacco. It is estimated that the excise value on the cigarette sticks was $55,973.13 and $242,775.60 on the loose tobacco. The total excise value of the tobacco located in the van is $298,748.73.
18Overall, and in respect of both charges, you were in possession of 268,518 cigarette sticks and 131.8 kilograms of loose tobacco. The estimated excise value for the total of the seized tobacco is $558,980.96.
Objective gravity
19An assessment of the objective gravity of an offence against section 233BABAD(2B) of the Customs Act must be made having regard to all of the relevant circumstances including:
(a) The amount of duty defrauded;
(b) The scale of the enterprise including the quantity of tobacco imported or possessed;
(c) The logistics or sophistication of the endeavour;
(d) The role of the offender, particularly whether an offender was a principal offender or following the instructions of others;
(e) The period of the offending;
(f) The expected financial gain and high level of potential rewards may flow from the offending;
(g) Whether the loss to the revenue has been repaid;
(h) Whether the offending involved other illegal activity, such as the use of false identities;
(i) Whether the offender was involved in the distribution and sale of the tobacco products in australia; and
(j) General deterrence, particularly in the context of an offence that is difficult to detect and which carries the potential for significant financial reward.[4]
[4] Tran v The Queen [2021] VSCA 292, 2 [6] (‘Tran’).
20In addition, it will also be necessary to consider the degree of recklessness on the part of the offender concerning whether the tobacco was imported with the intent to defraud the revenue.[5]
[5] Khanat v R [2024] NSWCCA 41, [45] (‘Khanat’).
Personal circumstances
21You are a 33 year old Australian citizen. You live with your pregnant wife and 3 children at the family home in Tarneit, which has a substantial mortgage.
22You were born and raised in a poor village in northern Lebanon called Mish Mish. You left school at the age of 12 and worked in your father’s butcher shop until you migrated to Australia in 2014.
23You came to Australia with your father, brother and sister in order to create a new life free from the economic and social problems of Lebanon. At that time you had no English skills. You have lived in Australia ever since.
24In 2020 and 2021, Victoria was subjected to stringent lockdown conditions which created both financial and emotional problems for you and your family.
25At that time illegal tobacco was being sold openly in Victoria. The “tobacco wars” with associated fire bombings and notoriety had not occurred. Due to financial pressures, you flirted with the idea of getting involved in retailing tobacco.
Matters in mitigation
26Your counsel relied on a number of matters in mitigation of sentence.
27First, Mr Dunn submitted that the offending giving rise to charge one is ‘low level’ in light of ‘the various roles played in importing, wholesaling, retailing and dealing in illegal tobacco’.[6] As Mr Dunn submitted, this much was apparently accepted by the authorities who initially filed a charge in the Magistrates’ Court. It was only when the second warrants were executed in February 2024, when the CDPP took over carriage of the prosecution, that charges were filed in this court.
[6] Defence Submissions (n 2) 2 [1.8].
28You have indicated a willingness to plead guilty to the charges from an early stage. Your pleas of guilty are an acceptance by you of your offending. They save witnesses the anxiety and inconvenience of giving evidence at your trial and save prosecuting authorities and the courts valuable resources. You are entitled to a discount on sentence in recognition of this.
29You have no prior convictions and have not offended since this offending.
30You have a good employment record, stable housing and family life and no problems with drugs or alcohol. Your prospects of rehabilitation are excellent.
Current sentencing practices
31A court sentencing a federal offender must consider national sentencing practices especially decisions of intermediate Courts of Appeal.[7]
[7] R v Pham (2015) 256 CLR 550, 4-10 [17]-[29].
32The prosecution referred the court to a handful of cases involving prosecutions under section 233BABAD of the Customs Act. There is only one appellate decision involving the recklessness offence.
33In Khanat v R,[8] the offender, who was 39 years’ old and had no prior convictions, pleaded guilty to a single date reckless possession charge of a very large quantity of tobacco. The total customs duty avoided was in excess of $3.5m. The sentencing Judge characterised the offending as ‘serious’, an assessment that was endorsed by the Court of Appeal which accepted that the offending conduct was engaged in for financial gain.[9]
[8] Khanat (n 5).
[9] Ibid [105].
34The outcome of the appeal against sentence was that the offender was imprisoned for one year and nine months and was required to serve 9 months in custody on a recognisance release order.
35The court was also referred to two first instance decisions both of which have been considered.[10] Such decisions are of limited assistance as they are confined to their own facts.
[10] R v Nguyen [2024] VCC 114; R v Min-Yang Chen [2022] VCC 1860.
Submissions
36Mr Dunn submitted that the low level of your offending when considered together with the matters of mitigation should result in a sentence of imprisonment with immediate release.
37Mr Dunn submitted that ‘the role of general deterrence is greatly reduced due to the minor role and unique circumstances of this offending’.[11]
[11] Defence Submissions (n 2) 5 [5.5].
38The prosecutor submitted that the appropriate disposition is a term of immediate imprisonment to be served before release on recognisance.
Consideration
Sentencing principles
39The determination of the appropriate sentence in this case requires the application of section 16A of the Crimes Act 1914 (Cth) (‘Crimes Act’). The court is to impose the sentence that is appropriate by taking into account such of the matters identified in section 16A(2) as are relevant and known to the court.
40As the Court of Appeal explained in the case of Tran, ‘the offence under section 233BABAD is one against the revenue’.[12] It is ‘not correct to characterise this type of offending as victimless, or of a lower level of criminality’. Although the Commonwealth is the ‘victim’, ‘those disadvantaged were the taxpayers of Australia generally’.[13]
[12] Tran v The Queen (n 4).
[13] Ibid 3 [7].
41As a result, ‘general deterrence is the primary sentencing consideration’ and ‘factors such as prior good character, excellent prospects of rehabilitation and age are usually afforded less weight than might otherwise be given’.[14]
[14] See ibid.
42As the court further observed, it is also significant that:
‘… the provisions that regulate the importation, distribution and sale of tobacco are aimed at regulating a harmful product. The current legislation was introduced as part of attempts to reduce the incidence of tobacco consumption in Australia by removing the availability of cheap tobacco. In addition, it reflects the fact that there is no ability for the inspection or testing of illegally imported tobacco for potentially harmful contaminants’.[15]
[15] Ibid 3-4 [8].
43While the Court in Tran was concerned with the more serious knowledge-based offence created by section 233BABAD(2), their Honours’ observations about the correct approach to sentencing apply equally to the recklessness-based offence created by section 233BABAD(2A) with the caveat that the maximum penalty under the latter is 5 years’ imprisonment and not 10 years as applies to the former.[16]
[16] Tran (n 4).
Application of Principles to this Case
44The offending that gives rise to charge 1 was possession of a significant quantity of illicit tobacco on a single date (29 June 2023) being reckless as to whether the tobacco was imported with intent to defraud the revenue.
45The ‘possession’ was constituted by controlling the tobacco in the sense of having it in the garage of your residence.
46You told police that the tobacco had been delivered a few days earlier by a ‘friend’ who you refused to identify. You told police that the tobacco was stored at your house because it was a safe street. You said that your ‘friend’ told you to store the tobacco to ‘make a few extra bucks’. When asked what you were paid, you said $500 in cash.
47That conduct was preceded by conversations recorded on your mobile phone on 16 February 2023,19 February 2023, 21 February 2023 and 22 May 2023. During those conversations you discussed with two other people obtaining cigarettes. It is clear that you were negotiating over price and quantity. You were clearly more than a passive recipient of illicit tobacco. While I cannot make a definitive determination of your role in this enterprise, I consider that you were clearly involved in the business of receiving and storing illicit tobacco for financial gain.
48The agreed excise value on the 223,500 cigarette sticks that are the subject of charge 1 is $260,232.23.
49‘Reckless’ for the purposes of the offence created by section 233BABAD(2B) of the Customs Act means that you were aware of a ‘substantial risk’ that the tobacco had been imported with intent to defraud the revenue and, having regard to the circumstances known to you, it was ‘unjustifiable’ to take the risk.[17]
[17] Criminal Code Act 1995 (Cth) s 5.4.
50In light of the discussions you had about the tobacco, in which brands were referred to and an image exchanged, I accept the prosecution submission that your degree of recklessness was high.
51As you engaged in this conduct for financial gain, I would characterise charge 1 as towards the mid-range of offending of this nature.
52Standing alone, and when considered in light of the mitigating circumstances referred to earlier in these reasons, especially your lack of prior convictions, a substantial fine or a term of imprisonment wholly suspended would be the appropriate penalty for charge 1.
53However, the further offending disclosed during the execution of the second warrants on 20 February 2024 elevates the seriousness of your offending significantly.
54You had at that time already been charged and bailed in relation to your June 2023 offending. You must therefore have been in no doubt about the illegality of storing illicit cigarettes and tobacco. Despite this, you were prepared yet again to have in your possession significant quantities of tobacco in February 2024. This was very reckless conduct.
55The excise value of that tobacco exceeded that of the tobacco involved in the earlier charge. This elevated the total excise tax avoided to well over half a million dollars.
56It is this second offending that elevates the level of your overall criminality towards the mid-range of offences under section 233BABAD(2B) of the Customs Act. Your recklessness about whether the goods had been imported with intent to defraud the revenue was high.
57The objective gravity of your offending means that, despite the matters in mitigation, a custodial sentence with a requirement to serve an immediate period in custody is the only appropriate outcome to satisfy the requirement in section 16A(1) of the Crimes Act to impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’.
58General deterrence remains the primary sentencing consideration. I reject your counsel’s submission that its role is ‘greatly reduced’. Nothing has been placed before the court that would reduce your moral culpability so as to result in your being an inappropriate ‘vehicle’ for general deterrence.
59The primacy to be given to general deterrence means that the subjective matters relied upon at your plea are of less importance than would otherwise be the case.
60I do accept that specific deterrence has a lesser role in light of your clean prior record.
Orders
61On charge two, possessing goods, namely tobacco products, while reckless as to whether the goods were imported with the intent to defraud the revenue, you are convicted and sentenced to imprisonment for 10 months commencing on 5 September 2025.
62On charge one, possessing goods, namely tobacco products, while reckless as to whether the goods were imported with the intent to defraud the revenue, you are convicted and sentenced to imprisonment for 4 months commencing on 5 May 2026.
63The aggregate federal sentence is 12 months.
64I make an order under section 19AC(1) of the Crimes Act that you be released after serving 4 months upon entering into a recognisance in the sum of $1,500.
65It is necessary for me to explain a number of aspects of this order.
66First, the purpose of the order is to ensure that when you are released from custody into the community you are supervised by corrections officers for a period of 9 months. This is to promote your rehabilitation and therefore reduce the risk of any further offending by you.
67Secondly, if you fail to comply with the conditions of the Order, without reasonable excuse, you may be brought back before this court and punished for that breach. You may also be re-sentenced on the original offending.
68Finally, the Order may be discharged or varied by this Court under section 20AA of the Crimes Act.
69Do you understand what I have told you about the Order? Do you agree to be bound by the Order?
70You will now be given a copy of the Order to sign.
71Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I record that had you pleaded not guilty, I would have imposed a sentence of 2 years with a recognisance release period of 8 months.
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