Director of Public Prosecutions v Abdulah

[2014] VCC 2030

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00643
CR-14-00644

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM ABDULAH
AHMAD HADDARA

---

JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2014
DATE OF SENTENCE:	1 December 2014
CASE MAY BE CITED AS:	DPP v ABDULAH
MEDIUM NEUTRAL CITATION:	[2014] VCC 2030

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Doyle	Office of Public Prosecutions
For Accused ABDULAH	Ms L. Ristivojevic	Stephen Adrianakis & Associates
For Accused HADDARA	Ms L. Ristivojevic	Stephen Adrianakis & Associates

HIS HONOUR:

1Adam Abdulah, you have pleaded guilty to one charge of attempting to possess goods, knowing the goods were imported with intent to defraud the revenue, contrary to s.11.1 of the Criminal Code (Cth), and s.233BADAD(2) of the Customs Act 1901 (Cth). The maximum penalty for that offence is ten years imprisonment or a fine of five times the duty that would have been payable on the goods, or both.

2Ahmad Haddara, you have also pleaded guilty to this offence and to one charge of possession of goods, knowing the goods were imported within intent to defraud the revenue, contrary to s.233BADAD (2) of the Customs Act 1901 (Cth). The maximum penalty for that offence is ten years imprisonment, and in the circumstances of this case, the maximum fine of $170,000 or both.

3Whilst your pleas were entered following committal proceedings, the prosecution accept that they may properly be described as early pleas, and I take them into account in your favour in mitigation of sentence. 

4Neither of you have any prior convictions. 

5An Agreed Statement of Facts was read to the court and tendered in evidence and your offending may be summarised as follows -

6Between October 2012 and June 2013, a joint investigation was conducted into a large scale illicit importation of cigarettes into Australia, from the middle east and south east Asia.  That investigation identified both of you as possibly involved in that offending.

7On 22 March 2013, a container configured to Northern Camping and Fishing supplies arrived at the Port of Melbourne.  The consignee had no knowledge of the shipment which contained 9,250,000,000 Rocco brand cigarettes in unmarked cardboard boxes.  The cigarettes were seized by Customs officers and the container had ballast placed in it.  The duty sought to be evaded amounted to $3,278,847.00. 

8On 24 March 2013, the container was delivered to premises occupied by Abdulah's father.  Both of you were present when the container was delivered to assist in its unloading.  When it was discovered that the container did not contain the cigarettes, it was returned to the wharf.  This conduct is relied upon in support of Charges 1 and 2 on the Indictment.

9On 4 May 2013, a further container arrived at the Port of Melbourne consigned to A Clouet & Co, an engineering company that also had no knowledge of that consignment.  The container contained 900 boxes of cigarettes, but the number of individual cigarettes within it is not known.

10You Haddara, assisted in the unloading of this container into a rental truck.  This conduct is relied on in support of Charge 3 on the Indictment.  Organised offending of this type which compromises the lawful collection of revenue by the Commonwealth is serious, and the sentence I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done.

11In respect of Counts 1 and 2 on the Indictment, no actual revenue was lost by the Commonwealth as the consignment of cigarettes were intercepted.  In respect of Count 3 on the Indictment, the sum of revenue was lost, but it is not possible to calculate the precise amount of it. 

12I now turn to your respective personal circumstances. 

13Adam Abdulah, you were born on 8 October 1978 in Melbourne, and you are now aged 36.  You are married and have six children.  Your family migrated to Australia from Lebanon and lived in Werribee. 

14At the age of seven, you were involved in a serious motor vehicle accident in the family car, which was being driven by your father.  Your six year old sister was killed and your mother suffered severe injuries.  You also suffered serious head injuries which resulted in a significant cognitive deficit and learning difficulties.

15When you were approximately 13 and in Year 8 at school, your family returned to Lebanon for several years.  You did not continue any formal education after your arrival there, and worked as a farm labourer. 

16After your return to Australia, you were involved in a series of unsuccessful retail ventures.  You are currently in receipt of a New Start Allowance. 

17I have received in evidence a psychological report of Ms Carla Lechner, a consulting and forensic psychologist, detailing your background and developmental history.  I accept that you are cognitively and emotionally immature, and that your offending occurred in this context and by reason of it.  You became involved in the offending that you have admitted after being prevailed upon to do so by members of the syndicate, engaged in the importation of the cigarettes.  Those persons included your brother-in-law.

18Having regard to the fact that you have no prior convictions, and the content of Ms Lechner's report, I accept that your prospects for rehabilitation may properly be described as very good. 

19Ahmad Haddara, you were born in Lebanon on 12 September 1988, and you are now aged 26.  You were 24 at the time of your offending, and are therefore a youthful first offender.  Your sister is the wife of your co-accused Adam Abdulah.  You arrived in Australia when you were 19, and worked as a renderer in the construction industry.  You completed secondary schooling in Lebanon.

20You are married, but separated from your wife who suffers from bipolar disorder.  You have a four year old child who you are responsible for caring for in a significant way as a consequence of your wife's illness.

21When your marriage broke down in 2013, you went to live with your co-accused Abdulah and while living with him, you became involved in the offending before the court.  I accept that you did so because you felt indebted to your brother-in-law, and I further accept, that you did not receive any financial benefit from your offending.

22I have received in evidence a psychological report of Dr Aaron Cunningham, a consulting and forensic psychologist, detailing your background and psychological profile.  I accept that at the time of your offending, you were suffering from significant anxiety and depression, as a result of the breakdown of your marriage, which was further compounded by your wife's mental illness.  In my opinion, your prospects of rehabilitation may also properly be described as very good. 

23In formulating the appropriate proportionate sentence in each of your cases, I have also regard to the following. 

i. The provisions of s.16A of the Crimes Act 1914 (Cth);

ii.   A table of comparative sentences in relation to like offences         provided to me by the prosecution;

iii. The sentence I imposed on another member of the syndicate Mohammed Nasser on 7 March 2014. Mr Nasser was the operator of a trucking company engaged by the syndicate to collect and deliver containers containing the tobacco upon which duty had been sought to be avoided.  He profited from his offending in a significant way, and his role and moral culpability was in my opinion greater than each of you.  However, he assisted authorities, and his sentence was significantly moderated for this reason.

24The sentence I imposed upon him is of some assistance in determining the appropriate proportionate sentence to be imposed in each of your cases, but I do not regard it as a benchmark. 

25The prosecution submitted that it would be open to me to impose a sentence on Adam Abdulah, that did not involve immediate imprisonment, but submitted that in the case of Ahmad Haddara, immediate imprisonment was the only appropriate proportionate penalty available to me to impose.

26I do not accept that he considerations specifically applicable to each of you, are such that I should accept the submission. 

27Haddara is significantly younger than Abdulah, and he too was effected by disturbed mental health at the time of his offending. 

28Whilst Haddara has pleaded guilty to another more serious offence, his role in the commission of it was limited. 

29Finally, in my opinion, Haddara became involved in the offending by reason of him residing with Abdulah when his marriage had broken down, and Haddara is responsible for the care of his four year old child, by reason of his wife suffering from a mental illness.

30In the result, the sentence of the court is as follows -

31Adam Abdulah, in relation to Charge 1 on the Indictment, you are convicted and sentenced to be imprisoned for 15 months.  I direct that that sentence start this day, that is 1 December 2014.  I further direct that you be released forthwith, on a recognisance for a period of two years in the sum of $500.

32But for your plea of guilty, I would have imposed a sentence of one year and nine months imprisonment, and ordered that you be released on a recognisance for a period of two years, after serving six months of that sentence.

33Ahmad Haddara, in relation to Charge 2 on the Indictment, you are convicted and sentenced to be imprisoned for 15 months.  I direct that that sentence commence on 1 December 2015. 

34In relation to Charge 3, you are convicted and sentenced to be imprisoned for one year and nine months.  I direct that that sentence commence this day, that is 1 December 2014. 

35That makes for a total effective sentence of two years and three months.  I order your immediate release on a recognisance for a period of three years, in the sum of $500.

36But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of two years and six months, and ordered that you be released after having served 12 months of that sentence, on a recognisance for a period of three years.

37Are there any further orders required?  You can be seated gentlemen. 

38MR BAHLEN:  No, Your Honour.

39HIS HONOUR:  Gentlemen, I have imposed in each of your cases, terms of imprisonment, but because of factors personal to you, I have decided not to require you to serve those terms of imprisonment and you have both been released on what is known as a recognisance release order.

40One of the conditions of that recognisance release order, is that you be of good behaviour, that is not break the law, for a period of three years.  Two years in your case Mr Abdulah, and three years in your case Mr Haddara.

41If you do break the law, you will come back before me and you will be re-sentenced in relation to the charges before the court.  And in all probability, you would be required to serve a term of imprisonment.  Do you understand that?

‑ ‑ ‑