CDirector of Public Prosecutions v Taleb

[2020] VCC 1699

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01725

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMAD TALEB

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September & 22 October 2020
DATE OF SENTENCE:	22 October 2020
CASE MAY BE CITED AS:	CDPP v Taleb
MEDIUM NEUTRAL CITATION:	[2020] VCC 1699

REASONS FOR SENTENCE
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Subject: import tobacco products with intent to defraud the revenue – $1,547,000 in taxes evaded
Catchwords: guilty plea – high utilitarian value – collected goods under bond and took them away for removal of cigarettes and tobacco and substitution of non-tobacco products – 1^st offender – 5-year delay in prosecution – rehabilitation substantially advanced – very unlikely to reoffend
Legislation Cited:
Cases Cited: R v Brown [2020] VSC 130; R v Merrett (2007) 14 VR 392; R v Pham (2015) 256 CLR 550; Bakarat v R [2020] VSCA 185; R v Saleh (2015) NSWCCA 299
Sentence: 16 months imprisonment with immediate release on a reconnaissance order in the sum of $1000 to be of good behaviour for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr S. Moglia	Commonwealth Director of Public Prosecutions
For the Accused	Ms D. Price	Theo Magazis & Associates

HIS HONOUR:

1Mohamad Taleb, you have pleaded guilty to one charge of importing tobacco products with the intention of defrauding the revenue, on 29 June 2015 at Melbourne, contrary to the Commonwealth Customs Act 1901.

2The circumstances of your offending are set out in the summary of prosecution opening [Exhibit A].  They are agreed facts.

3On 29 June 2015 and 30 June 2015 a consignment of 12 packages, which contained 9600 cartons of 'Manchester' branded cigarettes (200 sticks per carton) and 2640 boxes of 'Al Fahker' branded molasses tobacco (250 mg per box), arrived by air at Melbourne 'under bond' for export to New Zealand.  They were consigned to Yousef Dabbousi, identified by an ABN, at Gladstone Park.

4On 7 July, you collected the consignment from Menzies aviation in a Hertz truck, ZTV 556, which had been rented the day before by Omar Taleb (no relation), to deliver them 'under bond' to Secon freight logistics for export to New Zealand.

5There was a series of text messages between Omar Taleb, his brother, Sari, and you after you collected the tobacco goods.

6You drove the truck to Mickleham Road Gladstone Park where you parked between two other trucks.  You had rented one of those two trucks, BH6 1R1, which was registered in New South Wales, also from Hertz, the day before. Omar Taleb took the New South Wales plates from that truck and swapped them with the Victorian plates on the truck you were driving.

7Omar Taleb and you were seen moving between the two trucks.  You then drove the New South Wales registered truck, bearing the Victorian plates ZTV 556, to Secon logistics with 12 packages, ostensibly containing the cigarettes and tobacco, which had been imported into Australia, for export to New Zealand.  The packages did not contain any of the tobacco goods.  They had been removed, in one of the other trucks, by Omar Taleb and his brother Sari.

8The customs broker, who cleared the consignment through customs, dealt with you.  You provided him with the shipping documents and paid him the customs fees, for the consignment, which arrived at the end of June, and for other consignments of tobacco and nontobacco goods.

9The amount of revenue defrauded by the substitution was $1,547,000 comprising:

·duty:     $1,403,000

·GST:     $144,000

10Youssef Dabbousi said he had never imported tobacco products into Australia.  He said he had registered the ABN, which was used to consign the tobacco goods, in 2000; and it had been dormant since 2005.  Omar Taleb is married to his daughter.  He did not approve their wedding.

11Omar and Sari Taleb were tried for their involvement in February 2017. Their defence was they were not involved in the importation when they met you at Gladstone Park but were only involved in the theft of the tobacco goods.  The trial judge accepted a no case submission, on the grounds their explanation was reasonably open on the evidence and directed their acquittal.

12In late July 2015 you went back to Lebanon with your wife.  In July 2017 the two of you returned to Australia.

13Police arrested you on 13 July 2017.  The charges against you were listed for trial in July 2019.  The trial was adjourned after you terminated the services of your counsel.

14On 15 September 2020 you sought a sentencing indication in respect of the charge on the indictment.  After I indicated I would likely not impose an immediate term of imprisonment, you pleaded guilty, on 22 October 2020.

15You have no criminal record.

16You were born on 16 July 1982 in Tripoli, Lebanon.  You were 42 years old when you offended and are now aged 48.

17You did well at school and obtained a scholarship to attend the University of Balamand to study mechanical engineering.  Regrettably, at the end of your second year, in 2005, the scholarship program was disrupted following the assassination of Prime Minister, Rafic Hariri.

18To continue your education you came to Australia on a student visa and enrolled in mechanical engineering here.  You struggled with written English and did not complete the course.  Instead, you obtained building certificates and a heavy vehicle drivers licence.  Over the years you have worked in construction and as a driver.  

19In 2014 you obtained Australian citizenship.

20You married your wife in Lebanon in March 2015.

21Since your return to Australia in 2017 you had regular work until this year which has been marked by the global pandemic.

22When you offended, you were working for Omar and Sari Taleb, in their car repair business.

23You have two sons, aged four and two.

24You live with your wife and children at Altona North.  Currently you are receiving Jobseeker and getting occasional tradesman’s work through seeking services.com.  You are an active member of the Lebanese – Australian community.

Defence

25In comprehensive submissions your counsel, Ms Price, relied on the following documents:

1.written submissions

2.a medical certificate, dated 6 September 2019, of Dr Saville Waid,

3.a medical certificate, dated 6 July 2020, of your family doctor, Dr Hanna El-Khoury,

4.a letter of Nayef Estefan, the priest of your family parish in Akkar, Lebanon,

5.a mental health care plan referral to Ian Mackinnon, psychologist, dated 14 July 2020, (Dr Mathew Wilson),

6.Ian Mackinnon’s report, dated 6 June 2020,

7.Royal Children’s Hospital records in relation to your son’s foot deformity,

8.a letter, dated 29 September 2020, of Walid Elasmar, the secretary of the Australian-Lebanese Cultural League.

26You were regarded as a person of good conduct and character in your community in Lebanon and you are well respected here.  Mr Elasmar described you as hard-working and honest, respectful and good-natured.  Dr El-Khoury wrote you are a caring, responsible husband and father.

27You have had to deal with the worry of your son’s health issue and, additionally, the outcome of this proceeding has weighed heavily upon you.  In 2019 and 2020 you sought help from your doctor.  In July 2020, Dr Wilson referred you to Mr Mackinnon when you were suffering anxiety, depression and sleep disturbance.

28In Mr Mackinnon’s opinion, you are not suffering a psychological disorder and he would expect your anxiety and depression to be ameliorated when the legal proceedings against you are concluded.  He is of the view, should you be imprisoned, your anxiety and depression would likely deteriorate.  To
Mr Mackinnon, you did not show any antisocial or criminal disposition and, given your good education and work record and care for your family, he is the of the view you are likely to reoffend.

29In support of a submission I should sentence you to a term of imprisonment with immediate recognisance release, or, alternatively, a community correction order, Ms Price relied on:

·the high utilitarian value of your guilty plea,

·your lack of any criminal record,

·your excellent prospects of rehabilitation; and,

·the delay in prosecution of the proceeding.

Crown

30Mr Moglia, who appeared for the Crown, submitted, you were 'inextricably involved in the offending with a high level of awareness of the sophistication of the operation'.

31It was not put that you were an organiser of the importation.

32He submitted the late timing of your guilty plea should reduce the sentencing benefit you receive for it.

33He also submitted you caused the delay in prosecution, because were out of Australia when the Taleb brothers were charged, and your trial, listed in
July 2019, was adjourned when you dismissed your lawyers.

34He provided me with a helpful table of comparative tobacco importation cases where five offenders were sentenced to terms of imprisonment and all, but one, was required to serve some time in custody before release on a s.19AC recognisance.

35He accepted, acknowledging your good prospects of rehabilitation and lack of any criminal record, there is a 'low need' for specific deterrence.

36However, in his submission, because of the prevalence of this type of offending, and the difficulty in detecting it, general deterrence and just punishment are important sentencing considerations and, accordingly, only a term of imprisonment is appropriate in your case.

Analysis

37Your offending was serious.

38Your role was a necessary and important one.  You collected the tobacco goods under bond and took them to others where the illegal substitution was made.  While you were not an organiser of the importation, through your dealings with the customs broker, you knew what was being imported and were prepared to assist in smuggling a large quantity of tobacco goods to avoid customs duty.

39Whilst there was some planning and sophistication to the enterprise, which involved the use of hired trucks and swapping of truck numberplates, , in your dealings with the shipping agent and the truck rental agency, you used genuine identity documents, and a mobile phone, in your name.

40While you appear to have had greater involvement in the importation than the Taleb brothers, at least in your legitimate work, you were working for them.  On the material before me, I cannot decide whether you were giving directions to the Taleb brothers or taking directions from them.

41The amount of revenue defrauded by the substitution was substantial, around $1.5 million.

42It is not clear what reward you received but the 'common sense' inference, from your involvement in a valuable importation, is you made or expected some financial gain.

43I accept your guilty plea, while late, has high utilitarian value.  By it, the community has been saved the cost and inconvenience of the trial and, in times where jury trials have been suspended in Victoria for many months, you have facilitated the course of justice to an additional degree.  (see R v Brown [2020] VSC 130, at [32] per Jane Dixon J).

44I also accept, considering you have no other criminal record and have lived a pro social lifestyle, working and caring for family, since you offended, your prospects of rehabilitation are excellent.

45Living in a state of uncertain suspense as to the outcome of these proceedings, for several years, has caused you considerable distress and, by leading a law-abiding life, since your offending, you have substantially, if not fully, accomplished your rehabilitation.  While the prosecution was not responsible for the delay and, to a large degree you caused it yourself, in my view, delay is nevertheless a significant mitigating factor.  (see R v Merrett (2007) 14 VR 392 at [36]-[39])

46I have read the comparable cases to which Mr Moglia referred.  They have guided me in the identification and application of relevant sentencing principles and I have used them as a yardstick against which to measure your sentence (see R v Pham (2015) 256 CLR 550 per French CJ, Keane and Nettle JJ at [26]).

47The sentencing principles are well-established:

·the maximum penalty of 10 years' imprisonment, which shows the seriousness of the offending, is calculated to strongly deter those connected with the illegal smuggling of tobacco,

·it is similar to other offences involving defrauding the revenue, such as taxation fraud,

·offences against the revenue are not victimless crimes,

·because of the potential financial rewards and the difficulty of detection general deterrence is an important sentencing consideration,

(see Bakarat v R [2020] VSCA 185, at [53]-[55])

48Ordinarily offenders should expect a custodial sentence (see R v Saleh  (2015) NSWCCA 299 at [47])

Federal offending

49You fall to be sentenced under Part 1B of the Crimes Act 1914 (Cth).

50I must impose a sentence that is of appropriate severity in all of the circumstances (s.16A (1))

51In determining your sentence I have taken into account the matters listed in s.16A(2) insofar as they are relevant and known to the court.

52I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate (s.17A).  

53Under s.19AC (1), if I impose a sentence that does not exceed three years I must make a single recognisance release order and not fix a non-parole period.

54The Crown conceded a term of imprisonment which requires me to fix a recognisance release order is within sentencing range.  The point of difference between your counsel and the Crown is Ms Price contends for your immediate release; Mr Moglia says you should serve a period in custody before you are released.

55Because of the seriousness of your offending only a term of imprisonment is appropriate.  However, because of high utilitarian value of your plea and your significant progress to rehabilitation over the last five years I have decided it is in the community’s interest, and yours, to allow you to continue your rehabilitation in the community.  Accordingly I will impose a term of imprisonment and make a recognisance release order which allows for your immediate release.

56Please stand, Mr Taleb.

57By the sentence I impose, I must denounce your conduct, punish you and deter you, and others, from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

58Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

59For the offence of importing tobacco with the intention of defrauding the revenue you are sentenced to 16 months' imprisonment which is to commence today.  I make a recognisance release order, in the sum of $1,000 for your immediate release on the condition you be of good behaviour for two years.

60While there is some artificiality to the process, I declare, as s.6AAA of the sentencing act directs, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment and ordered your release on recognisance after you had served 8 months in prison.

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