Director of Public Prosecutions v Barakat
[2019] VCC 1997
•25 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02093
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HASSAN BARAKAT DIB BARAKAT |
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 November 2019 |
| DATE OF SENTENCE: | 25 November 2019 |
| CASE MAY BE CITED AS: | DPP v Barakat |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1997 |
EX TEMPORE REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Import tobacco products with the intention of defrauding the revenue – convey goods, namely tobacco products, knowing the goods were imported to defraud the revenue - delay
Legislation Cited: Customs Act 1901 (Cth) s 233BABAD(1) and (2); Criminal Code Act 1995 (Cth) s 11.2A(1)
Cases Cited:R v Zhang (2017) 265 A Crim R 113; R v Saleh [2015] NSWCCA 299; Arthars v The Queen [2013] VSCA 258; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517
Sentence:Four years and three months imprisonment with a non-parole period of two years and six months; 20 months imprisonment to be released upon a two year recognisance release order after serving 10 months in the sum of $1000
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Nicholson | Ms L. Monagle |
| For Accused Hassan Barakat | Mr R. Richter QC | Mr T. Milides |
| For Accused Dib Barakat | Mr M. Gumbleton | Mr S. Adrianakis |
HIS HONOUR:
THE CHARGES
1Hassan Barakat, you have pleaded guilty to one charge of importing tobacco products with intention to defraud the revenue between 6 December 2014 and 9 June 2015, comprising three separate consignments of tobacco. The maximum penalty for that offence is 10 years' imprisonment.
2Dib Barakat, you have pleaded guilty to conveying goods, namely tobacco products, knowing the goods were imported with the intent to defraud the revenue. Your offending occurred between 6 December 2014 and
19 December 2014 and involved your involvement in two consignments. The maximum penalty for your offending is 10 years' imprisonment.3The circumstances surrounding your offending are set out in Exhibit 1, the prosecution opening upon the plea. At the time of your offending, Hassan Barakat, you were aged between 27 and 28 years, and you, Dib Barakat, were aged 32 years. You are now 32 years and 37 years old, respectively.
4In each case, the charge to which you have pleaded involves a rolled-up charge. Yours, Hassan Barakat, rolling up three separate importations, and you, Dib Barakat, two separate charges.
BACKGROUND
5You are brothers. At the time of these events, you, Hassan Barakat, resided at 54 McIntosh Court in Altona North, whereas you, Dib Barakat, resided at 17 Hearn Street in Altona. The two of you owned a wholesale fruit and vegetable business called the Barakat Brothers. At the time of these events, you, Hassan Barakat, used the name 'Sam' and 'Alex', and during the course of the offending, you purported to be ‘Rabih Ali’, and ‘Ahmad Melhem’. Those two are both associates of both of you. Rabih Ali's brother, Machour Ali, is married to Oula, who is a cousin of yours.
6Border Force records indicate that Rabih Ali travelled from Melbourne to Lebanon on 13 October 2014 and has not returned. What his role is in this offending is somewhat uncertain, as are aspects of your offending, Hassan Barakat. In particular in relation to the third consignment, which I will come to in more detail later.
7In the end it is not precisely where you are in whatever organisation there might have been, but rather what you did. Categorisation of person's roles is sometimes difficult in aspects of their roles. Though, in large part, your role, Hassan Barakat, is clear. And insofar as you are concerned, Dib Barakat, it is with some precision that your role can be identified.
8At the time of the offending, you, Hassan Barakat, used your own mobile phone and also four other mobile phones subscribed to other persons, as set out in paragraph 9 of Exhibit 1. You also, during the course of your investigation, admitted to having sent and received emails from the address [email protected] and admitted to using a blue Nokia mobile phone that was located at your address at the time of your interview on 7 August 2015. You used this blue Nokia during the course of your offending. It was later analysed and found to have messages which were sent to Rabih and Alex. It had also been used with multiple SIM cards, including SIM cards with the numbers ending in 8665 and 1278.
9Mobile telephone numbers which end with 334 and 119 were registered to you, Dib Barakat. You, as the sole director, secretary and shareholder of the companies All Ship Marine Supply Pty Ltd, which used the business name All Australia Transport, and AH Paradise Pty Ltd. You, through these companies, were the lessor of a warehouse at 25 Saintly Drive, Truganina.
10You each had an Isuzu van, the one registered to you, Hassan Barakat, had the registration number ZLV967. In relation to you, Dib Barakat, the registration was XCS 317.
THE BROAD NATURE OF THE OFFENDING
11This offending relates to a scheme where tobacco was imported to Australia. It was imported via air freight from the United Emirates and declared correctly as tobacco. Upon arrival, the goods were placed at Menzies Aviation (Menzies), an airport Cargo Terminal Operator, where the freight remained under Customs control. A customs broker was engaged. He was told that the importation was delivered to a licensed warehouse for storage. The broker lodged a document called an N20, which allowed the goods to be transported from Menzies to a licensed warehouse, where they were to be stored until duty and Goods and Services Tax (GST) were paid.
12You, Hassan Barakat, using aliases including ‘Rabih Ali’ and ‘Alex’, coordinated the importations and took the main role in arranging for the tobacco to be transported en route. Your role, Dib Barakat, was to transport the goods from Menzies to the licensed warehouse in relation to the first two consignments.
13En route to the licensed warehouse, the imported tobacco goods were substituted for a non-dutiable plant material. These non-tobacco products were then packed similarly to the originally imported goods and were delivered to the licensed warehouse in their place for export. Stickers with the Airway Bill number for the tobacco consignments were placed on the substituted load to make them appear like the real consignments. These stickers were imported around the same time as the tobacco consignments. The imported tobacco goods remained in Australia without duty or GST ever being paid.
14In December 2014, two consignments of tobacco were imported and successfully switched for herbal molasses, which the investigators believed to have occurred whilst they were en route from Menzies to the licensed warehouse.
15The charge in relation to you, Dib Barakat, relates to your role in transporting the tobacco from Menzies to the point where they were substituted, and then transporting the substitution loads to the licensed premises, or so investigators believed at the time. Mr Gumbleton, on behalf of you, indicated that that was not how the substitution was done. Rather, on the Isuzu truck driven by you on the collection of the first two consignments, there was already on the truck the substituted consignment. Thus, when you collected each of those two consignments that involved adding to the load already on the truck, the original consignment of tobacco. What then happened was, at the licensed premises to which these items were to be taken, the substituted consignment was simply unloaded, rather than the real consignment. More to that later.
16The charge against you, Hassan Barakat, relates to your role in coordinating and arranging the importation of all three consignments. The process of importing tobacco into Australia involves the product being subject to import duty and GST. Duty on cigarettes is calculated per cigarette at rates set twice per year. Upon arrival in Australia via airfreight, cargo was stored at an airport cargo terminal operator, in this case, known as Menzies, under Customs control. The importer may then lodge various types of Full Import Declarations.
17It is a requirement for all commercial cargo entering Australia that an electronic lodgement is submitted to Australian Border Force's (ABF) Integrated Cargo System (ICS) prior to an aircraft or a vessel arriving. This allows for an assessment of risk and calculation of any duties payable on the import. ABF collects the duties and releases the cargo on the basis of the information entered in the ICS. If the customs value of the goods exceeds $1,000, the goods must be formally entered into the ICS with a statement called a Full Import Declaration (FID). The owner of the goods and their representative custom broker make the statement. The FID is used to calculate the correct duty and GST payable.
18Under the Customs Act1901, the owner of goods includes the owner, importer, consignee, agent or person in possession of the goods.
19Relevant to this particular matter are the N10, which requires payment of the applicable duty and/or GST before goods are released; the N20, for the transfer of goods to a licensed warehouse under bond, deferring the payment of duty or GST until the release of the goods, or in the case of re-export of the goods, avoiding payment of duty/GST; and the N30, which allows release of the goods (or a portion of them) upon payment of the duty/GST.
20Movement of the goods under the N20 FID is known as an 'under bond movement'. Under bond movement must be made to a licensed warehouse. Once an under bond movement is approved by the ABF, the transportation can be carried out by anyone, including the owner of the goods. Licensed warehouse operators are required to hold a license.
21It is this provision which permitted anyone, including the owner of the goods, to transport the goods from, in this case, Menzies, onwards to a licensed warehouse. This exploited an aspect of the system of importation which I found striking. That anybody, including an owner, can be responsible for the transport between one bond warehouse to another is staggering. I am told that as a result of the detection in relation to these consignments that transfer can no longer take place and, indeed, goods cannot be removed from the customs operated secure facility unless and until the duties and GST are paid.
CONSIGNMENT 1
22Turning to each of the various consignments, consignment 1 arrived in Melbourne on 1 December 2014. An air cargo consignment with Master Air Waybill (MAWB) 607-58524546 arrived in Melbourne on the Etihad Airways flight EY460. The MAWB contained the following details:
(a) Cargo: eight pieces, gross weight 1,915 kilograms;
(b) Type of good: ‘Tobacco’;
(c) Shipper: Home Paradise FZE, Jebel Ali AE TL: 048807420;
(d) Consignee: East Coast Marine Supply Pty Ltd, MacAulay St North AU TL: 0061434403694 (3694) ABN: 86160227850.
23The consignee in this case, East Coast Marine Supply, was registered on
5 September 2012, with a registered address at 6 Ginifer Avenue, Altona North. Its sole director, secretary and shareholder was Rabih Ali, born
26 July 1985. This was the only airfreight importation by this company.24Menzies unloaded the eight pallets from the aircraft and stored them at Menzies warehouse. On the same day, ABF intercepted a DHL package with MAWB 176-73908671 and House Air Waybill (HAWB) 178-4867011. The package contained an envelope with eight stickers in it. The stickers had printed on them Air Waybill No. 60758524546 which, of course, was the Master Air Waybill for the tobacco consignment, the destination 'MEL' and handing in for 'DWC'.
25The packaged contained the following details:
(a)Consignor: Arabian International Cargo LLC, PO Box 83106, Jebel Ali Free Zone, TEL 971552397086;
(b)Consignee: Machhour Ali, 48 Marion Street, Altona North, VIC 3025, TEL 0061488870888;
(c)Consignment: one package weighing 0.5 kilograms;
(d)Type of goods: “Document”;
(e)Customs value: USD$0.
26The package was repacked and released for delivery. This package contained another important aspect to this fraudulent importation process. The stickers matched the genuine cargo. The stickers were then placed on the substituted consignment cargos for consignments 1 and 2. Thus, the appearance of what is on the stickers and the consignments themselves in terms of their bulk and packaging were identical, or virtually so.
27Thus, the substitution could be simply achieved by the substituted cargo appearing to be the tobacco cargo that had been removed from Menzies. If it be thought otherwise, I consider the method used here to be a sophisticated method designed to exploit a flaw in the system.
28Returning to the detail of the consignment 1. It will be noted that the mobile number ending in 0888 was subscribed to Rabih Ali, who had already left Australia on 13 October 2014, and operated by his brother, Machhour Ali. This number called the blue Nokia on 1 January 2015. On 2 December 2014, DHL delivered the package containing the stickers to 48 Marion Street, Altona North. Machhour Ali signed for the package.
29Johnson Wills International (JWI) had been retained as customs brokers in connection with this consignment. On 3 December 2014, licensed custom broker Greg McKenzie of JWI created an N20A FID, number AXJX9AWM7, for the consignment identified by MAWB 607-58524546. The goods were described on the FID as ‘Tobacco Products’. ‘MacGregor’ was named on the N20 as the bond warehouse. At this point, no GST or duty was payable. The N20 was changed to nominate the bond warehouse for this consignment to be OTS.
30On 4 December 2014, an SMS was sent from a mobile phone number operated by Martin MacGregor Featherstone, who at the time worked for MacGregor Logistics. The SMS was sent to the mobile number ending in 3694. At that time the SIM for 3694 was in the blue Nokia.
31The SMS read, 'G'day Rabih, sorry mate. Been in a couple long meetings, and now I’ve gone home for the day. Can’t help you mate, it’s out of my hands. Sorry.’ Approximately an hour later another SMS was sent from the same number. It read, 'I'm out of the office for the rest of the day mate. Can't do anything from home'.
32On 5 December 2014, a JWI employee attended Menzies, collected the original MAWB with the number ending 546 and took it to JWI. A John Iacobucci was the general manager of OTS Plus Pty Ltd (OTS), a logistics company that operates a licensed warehouse. OTS is located at 13/17-19 Agosta Drive, Laverton North. On 5 December, Mr Iacobucci was advised by JWI that a consignment for East Coast Marine was to be delivered to OTS under bond that day. This was a reference to consignment 1. JWI then sent Mr Iacobucci the relevant documents by email, including the commercial invoice and packaging list, bill of lading and customs entry. Mr Iacobucci arranged for Glen Van Dyke to be present when the delivery occurred.
33At about 4.30 pm, Mr Van Dyke saw a white BMW SUV pull up across the street. You, Hassan Barakat, were in the vehicle. You left the vehicle and you introduced yourself as Rabih Ali. Mr Van Dyke observed that you spoke English well but had a strong accent. You then offered Mr Van Dyke approximately $300 cash for remaining open for him. Mr Van Dyke declined the offer. You then made some phone calls. After this, you, as ‘Ali’, told Mr Van Dyke the consignment was still at the airport and would not be released until the following day, being 6 December 2014. Following this, Mr Van Dyke and you arranged for the goods be delivered to OTS the next morning, which was a Saturday, as the warehouse was going to be open for another client.
34That following day, at about 9.40 am, you, Dib Barakat, attended Menzies and collected the first consignment. You were driving your brother’s, Hassan Barakat’s, Isuzu truck. You presented photo identification with your name on the original Air Waybill and said that you were from All Australia Transport. Whilst you, Hassan Barakat, presented yourself under a false name, you, Dib Barakat, did not. You produced an authority to collect document. This document referred to flight EY 9504/30, the AWB number, and stated East Coast Marine Supply Pty Ltd gave permission to All Australia Transport to collect the goods from Menzies. It was dated 6 December 2014 and signed by Rabih Ali. The 3694 number associated with Rabih Ali was also provided.
35The eight loaded pallets comprising the consignment were loaded onto the Isuzu truck. Menzies CCTV footage shows the eight pallets wrapped in black plastic on the sides and top, with yellow tie-down straps across the top, bottom and sides of each pallet. CCTV footage shows the truck arriving at Menzies at 9.10 am and departing at 9.49 am.
36It had been alleged that the substitution occurred at the Truganina warehouse, but, as earlier stated, I am satisfied that it did not. The substituted load was already on the Isuzu truck when it went to Menzies.
37The same day, at about 10.30 am, a white BMW SUV arrived at OTS. This was driven by you, Hassan Barakat. Again purporting to be Rabih Ali you got out of the vehicle and walked to the OTS foyer. After some discussion, you received a telephone call. You then informed Mr Van Dyke that the delivery truck was on its way. A short time later the truck arrived, driven of course by you, Dib Barakat. You were wearing a grey hooded jumper, with the hood over your head, and tracksuit pants. You provided Mr Van Dyke with a copy of the Air Waybill. He then pulled back the blue tarps on the side of the truck.
38Inside the truck were eight blue pallets loaded with what appeared to be boxes all wrapped in plastic. There was no additional strapping on the pallets. Mr Van Dyke used a forklift to unload the eight pallets from the truck. In total, it took about 10 minutes. You, Hassan Barakat, departed shortly after. Whilst at OTS, the two of you behaved as if you did not know each other.
39On 9 December 2014, Ross Coates, customs broker at JWI, amended the N20 FID to show that the bonded warehouse that would receive the tobacco was OTS, not MacGregor Logistics. The following day, 10 December 2014, ABF officers attended OTS and inspected the consignment, the pallets with black plastic on the sides but uncovered on top. They had no plastic tie-downs on the top or sides.
40Each pallet had a small barcoded white sticker affixed to it, with the MAWB number displayed. Each pallet contained eight large boxes, each containing two smaller boxes. Each smaller box was found to contain 50 white cartons with navy blue markings and the label, 'Manchester Herbal Tobacco'. Each cargo contained 10 individual cigarette sized packets marked 'Manchester Herbal Tobacco'. Inside the pallets was apparently plant material and sticky red molasses-type substance wrapped in a plastic sheet. Later, tests found samples to be potato. These pallets had been substituted for the tobacco, as I have indicated.
41In April 2015, Mr Van Dyke sent an email to [email protected], stating that ATO advised OTS it could no longer store Rabih Ali's product in its warehouse. Mr Van Dyke asked if the goods could be transferred, or an application be made for a remission of customs duty. Correspondence then continued between JWI, Rabih Ali, OTS and the ATO. The goods were never released from OTS and were later destroyed by the ATO.
42The prosecution alleges that the original consignment that arrived at Menzies consisted of 1,280,000 tobacco cigarettes of the same type as were contained in the second consignment. The duty payable on 1,280,000 cigarettes would have been $592,230.40. That deals with the first consignment, and so I now move onto the second consignment.
CONSIGNMENT 2
43On 12 December 2014, a consignment with MAWB 607-58524561 arrived in Melbourne on Etihad Airways flight EY460. The MAWB contained the following details:
(a) Cargo: eight pieces, gross weight of 2000 kilograms;
(b) Type of goods: ‘Tobacco’;
(c) Shipper: Home Paradise FZE, Jebel Ali AE TL: 043202455, FX: 043202466
(d) Consignee: M & R Import and Export, ABN: 85358409002, Muhammed El Haj Melbourne AU TL: 0403610963
44It will be noted that the shipper, Home Paradise FZE, and the consignee, M & R Import and Export, are different in this second consignment from that in the first consignment. M & R Import and Export was registered as a business name on 6 June 2014, which had the registered business name holder as Mohamad El Haj. The principal place of business was 5 First Avenue, Altona North.
45ASIC records identify that on 9 December 2014 the ASIC records were updated to show that the business was now listed as Best Victoria trading as M & R Import and Export. M & R Import and Export had not had any imports other than the one consignment that was imported on 12 December 2014, precisely the same scenario as with the first consignment. Again, the eight pallets were unloaded and stored at the Menzies warehouse.
46On the same flight a package arrived with HAWB 1784921180. This package was another consignment of documents to be placed on the substituted load for consignment 2. The package had similar details to the document consignment containing the stickers that had been examined by ABF, including the consignee details for Machhour Ali, and the 0888 number operated by him. The package was delivered to the consignee address on 16 December 2014.
47Freight and More is a freight forwarding company located at Suite 30, 37-39 Albert Road in Melbourne. Following the arrival of the second consignment, the director of Freight and More, Dan Yardeny, was instructed to assist with the clearance of that consignment. Freight and More arranged with Victoria Customs Services Ltd for clearance of the consignment. The consignment was to be stored under bond at OTS.
48On 15 December 2014, ABF attended Menzies and conducted a covert examination of the eight pallets under the MAWR 607-58524561. The pallets were wrapped in black plastic, with yellow tie-down straps. Officers opened five of the eight pallets and found cartons of Manchester-labelled cigarettes. They also took x-rays of a quarter of the consignments. The cartons contained 20 packets of Manchester cigarettes, each containing 20 cigarettes. The officers then repacked and re-sealed each of the pallets.
49Acting upon an email authority from M & R Import and Export, Freight and More collected the MAWB for consignment 2 from Menzies on 16 December 2014. The arrival notice, Airway Bill and packaging list were provided to OTS.
50Also, on 16 December 2014 licensed customs broker Neville Browning of Victorian Customs Services Pty Ltd created an N20 FID for the consignment. The goods were described as 1,280,000 cigarettes. As the consignment was to be moved into a bonded warehouse, no duty was payable on the consignment at this point.
51The same day, John Iacobucci at OTS received a phone call from you, Hassan Barakat, purporting again to be ‘Rabih Ali’. Mr Iacobucci observed Mr Ali as having a thick accent but very good English, with apparent understanding of the import process.
52You, as Mr Ali, said that you were handling the additional consignment of molasses tobacco that was arriving in the next couple of days. You said the company importing the consignment was called M & R Import and Export. You said the company was associated with a person named Mohamad El Haj and that you were acting on Mr El Haj's behalf.
53Mr Iacobucci informed you that OTS was able to accept this consignment for storage. Three days later, on 19 December 2014 at about 5 pm, Mr Iacobucci called a telephone number that you, as Mr Ali, had given him for the truck driver from All Australian Transport, who would be delivering the consignment to OTS. It was you, Dib Barakat, who answered the call. Mr Iacobucci enquired about the status of the delivery. You, as driver, informed Mr Iacobucci that you were waiting at Menzies to pick up the consignment.
54A little later, at 5.21 pm, the consignment was released to you, Dib Barakat. You had arrived at Menzies and produced company identification in your name. You drove the vehicle which was Hassan Barakat's Isuzu truck. Mr Iacobucci called the driver, Dib Barakat, on two more occasions to enquire about the status of the delivery in about 15 minute intervals, following the initial call. Mr Iacobucci called you because it was getting late and you were taking a long time to arrive at OTS, given it was at Melbourne Airport which was only a 25 to 30 minute drive away. You then advised him that the consignment had just been loaded onto your truck. During the telephone call, you said that you were stuck in traffic.
55Shortly after the third call, Mr Iacobucci received a call from you, Hassan Barakat, purporting to be Rabih Ali. Mr Iacobucci met you, as Mr Ali, at the rear of the warehouse. You had been driving a black vehicle, that was parked next to the roller door. You told Mr Iacobucci that you had previously imported tobacco products, that you were organising further imports of tobacco, and that you were not satisfied with the service another company had provided.
56When the truck driven by you, Dib Barakat, arrived at the consignment at about 6 pm, it had a piece of paper sticky-taped to the side of the driver's door, with the name All Australia Transport written on it. That, of course, was your firm. Again, Mr Iacobucci observed that you, Dib Barakat, had a strong accent but spoke English well.
57You were wearing black jeans, a hooded jumper and sunglasses. You had the hood of your jumper pulled over your head the whole time that you were at OTS, this despite it being a hot and sunny day, it appeared that your clothing was unusual. The prosecution submitted, and I accept, that you were trying to conceal your features and identity by having your head covered with a hood and wearing sunglasses.
58You provided Mr Iacobucci with the transfer document from the airline, then pulled back the blue tarps on the truck. Inside the truck were eight plastic pallets loaded with what appeared to be cardboard boxes that were wrapped in black plastic. There were no yellow tie-down straps. These were virtually identical in appearance to the first consignment. Mr Iacobucci commenced unloading the pallets using a forklift. Your truck was there for about 15 minutes. He, Mr Iacobucci, did not see any conversation or interaction between you and your brother, Hassan Barakat.
59On 22 December 2014, ABF officers attended OTS to examine the consignment. The pallets were blue and the boxes were wrapped in black plastic, with no yellow tie-downs. The pallets contained numerous brown cardboard boxes, each containing 25 cartons of Manchester brand ‘Herbal Tobacco’, identical to those examined at OTS on 10 December 2014 in connection with the first consignment. White consignment documentation stickers were found on each pallet, identical to those found on the first consignment. Subsequent analysis identified the plant material in the goods delivered to OTS to be potato. These goods were never released from OTS and were later removed by the ATO for destruction.
60The duty payable on 1,280,000 cigarettes would have been $592,230.40. The exact same number of cigarettes and the exact same duty payable as with consignment 1.
CONSIGNMENT 3
61And so, we come to the third consignment, as it relates solely to you, Hassan Barakat.
62You contacted Mr Iacobucci, again using the alias Rabih Ali in an attempt to engage him to provide storage for use in a future substitution. In late December 2014 or early January 2015, you contacted him on his mobile phone and invited him to a business dinner in Docklands. Shortly after this call, Mr Iacobucci met you, Hassan Barakat using the name Ali, and another male at a Lebanese restaurant. During the course of that dinner you, Hassan Barakat, discussed the following:
(a)You enquired about Mr Iacobucci's experience in the transport and warehousing industry. Mr Iacobucci said that he was a licensed customs broker and had been involved in the transport and warehousing industry for 15 years;
(b)You asked if Mr Iacobucci would be interested in setting up a warehouse for you and offered to pay Mr Iacobucci to do so. No specific amount was offered or discussed;
(c)You informed Mr Iacobucci that on occasion you would need him to 'look the other way' if you were going into business together; and
(d)Mr Lacobucci said to you that he was not interested in doing business with you outside of his role at OTS.
63The dinner lasted some 30 to 40 minutes. During the dinner, you translated the conversation with Mr Iacobucci to the other male present, who did not speak English, and did not speak to Mr Iacobucci during the course of the dinner.
64After the successful substitution of the first two consignments you continued to use the blue Nokia to arrange a further importation.
65Call charge records and a call log for the blue Nokia show that there was a call from 3694, Rabih Ali's number, to Mr Iacobucci's number using that mobile phone on 29 January 2014.
66Between 30 December 2014 and 13 February 2015, you used that blue Nokia to call or attempt to call a Lebanese number, +9613056555, on 13 occasions. You also called the 0888 number associated with Machhour Ali on 1 January 2015.
67On 10 February 2015 you used the blue Nokia to send two SMS messages to the Lebanese number. The first provided the following details to be used for a third consignment of documents: '4 lawrence court altona north vic 3025 ali saoud'. The second message sent at 7.28 pm AEDT said, '[email protected]'.
68The third document consignment contained stickers that were later used on the third substitution load. The stickers arrived on 6 June 2015 upon Emirates Airlines flight EK 0406, with the consignor name 'Arabian Cargo LLC’ and consignee details identical to those contained in the SMS of 10 February 2015.
69On 12 March 2015 Rush Imports and Exports Pty Ltd was registered and ‘Ahmad Melhem’ was recorded as a sole director, secretary and shareholder. The recording indicated that that company was operating from 2B Wackett Street, Laverton, which was Ahmad Melhem’s address. He had been an employee of you, Hassan Barakat.
70The 1278 number, subscribed to Mr Melhem and listed as the contact number at the Rush consignment, was registered on 14 March 2015. The SIM for the 1278 and 8665 numbers were both used by Hassan Barakat in the blue Nokia. The numbers 1278, 8665 (‘Lina White’) and 7817 (‘Kamarelldin’) were provided to various people in connection with consignment 3 as well as the email address, '[email protected]'.
71In the first few months of 2015, you, Hassan Barakat, make various attempts to secure transportation and storage for consignment 3, but you encountered difficulties due to the size of the consignment. This consignment was very different from the first two, which involved eight pallets, whereas the third consignment comprised of 37 pallets.
72The blue Nokia continued to be used. Calls from that phone were made to the landline and mobile numbers of transport and logistics firms in the lead up to, and after, the importation of consignment 3.
73As will be revealed, you, Hassan Barakat, encountered difficulties not only in finding another warehouse to which the consignment could be transferred, but also associated insurance difficulties, as well as finding someone who was prepared to actually convey the consignment from Menzies onwards. This, as will be revealed, despite your best endeavours to overcome these difficulties, all of which would point to you using all your endeavours and all your skills to achieve a third substitution of this very large 37 pallet third consignment. In short, the ambition behind consignment 3 impeded its collection.
74And so, approaches and attempts were made to two agencies. Mitsui OSK Lines (MOL) in an attempt to transport the consignment by sea on
27 May 2015, with MOL declining to ship the consignment, and Mainfreight Transport on 27 May 2015 in an attempt to secure bond storage.75After some correspondence, Mainfreight declined to accept the consignment. You, Hassan Barakat, also made a further approach to Mr Iacobucci, again, purporting to be Rabih Ali. You made approximately 20 phone calls to him in May and June of 2015. You told Mr Iacobucci that you were importing another tobacco consignment by sea and that you required assistance transporting the consignment into the wharf and from storage. You offered to pay him cash for his assistance. He declined but provided detail of a firm called Latin Transport. Again, it is plain that you were prepared to use whatever means you could in order to secure this substitution of the third consignment.
76And so, the third consignment did eventually arrive on 6 June 2015. The same day that the third consignment document arrived with the substitution stickers. On that day, Ms Mazhar Nawaz Malik of Arabian International Cargo and Cleaning sent an email to [email protected]. The email attached documents for consignment 3, which listed Rush Imports and Exports Pty Ltd as the consignee and stated there were 37 pallets of tobacco product with a value of US$41,440.00.
77The following day, 7 June 2015, Etihad Cargo lodged MAWB 607-62973422 in ICS. The MAWB detailed a pending importation of 9,880 kilograms of tobacco product into Melbourne from Dubai, UAE. Between 7 and 9 June 2015, three airfreight importations arrived in Melbourne Airport on Etihad Airways flights. These three importations made up one consignment, identified by MAWB 607-62973422. In total, the consignment consisted of 37 pallets all similar size.
78The MAWB had the following details:
(a) Cargo: 37 loaded pallets with a gross weight of 9880 kilograms;
(b) General dimensions of each pallet load as 120 x 100 x 135 centimetres;
(c) Goods: ‘Tobacco products’;
(d) Shipper: Sahar Al Layaly General Trading LLC, Dubai, UAE;
(e) Consignee: Rush Imports and Exports Pty Lid, 2B Wackett Street, Laverton VIC, ABN: 99604712110, TEL: 0061470301278
79This cargo was completely wrapped in black plastic so the actual cargo could not be seen. The pallets were blue. The three importations were unloaded from the aircraft and stored at Menzies warehouse.
80On 10 June 2015, ABF officers attended at Menzies and inspected the consignment. They found 37 pallets covered in black plastic wrap. They inspected some of the pallets and found they contained Manchester brand cigarettes. There were stickers on the pallets with the MAWB number that were identical to those found on the ECMS and M & R consignment examined at OTS.
81On 26 June 2015, ABF officers attended Menzies and conducted another re-examination of the consignment. They had deconstructed one pallet and found it contained eight large cardboard boxes. In each large box were two smaller shipper boxes. In each shipper box there were 50 cartons labelled as Manchester cigarettes. Each carton was labelled as containing 10 packets of 200 cigarettes.
82Based on these figures the entire consignment of 37 pallets consisted of 5,920,000 sticks of cigarettes. The duty payable on that many sticks based on the applicable duty at the time was $2,782,873.60.
83After arrival of consignment 3, you made approaches to various firms for storage. The approaches were made by phone, email or even in person. On occasions you used the name 'Alex'. In some cases you described the modus operandi for the substitution.
84The first approach was made to Express Container Transport (ECT), at Laverton North in early June 2015. There, you attended at the premises with another man and spoke to Sam Ho. You stated that you required a truck and two identical trailers to transport goods and that the trailers needed to have curtains on the side. He was asked to transport the goods to ECT, that being Express Container Transport, or a depot nearby and swap the trailer containing the airfreight with the second identical trailer. The numberplates on the trailer would also need to be exchanged. Mr Ho was told that he then needed to transport the second identical trailer to a bond store. He was offered $2000 and then $5000, but he declined to accept the job. He was again approached on 28 July 2015 by phone. And so, the method of substitution had to be different, involving two trucks and a swapping, in effect, presumably as a result of the sheer size of the third consignment.
85The second approach was made to Silk Contract Logistics (SCT) on 10 June 2015 for tobacco storage, but they were unable to store the tobacco.
86The third was made to Linfox on 10 June 2015 for storage of 37 pallets of tobacco. Linfox declined the job as too small.
87The fourth to Gentzen Transport on 10 June 2015 and over the next two weeks, to move tobacco, including storing it in a trailer after collection, but they declined.
88A fifth to MCC World International on 11 June 2015, seeking bonded warehouse storage for 35 to 40 pallets of tobacco.
89A sixth to QUBE Transport.
90A seventh to TTL on 13 July 2015, requesting assistance and storage for a container of tobacco. Calls in relation to this business were missed and the approach did not progress.
91An eighth, to PA and LJ Skinner Transport between 28 and 29 July 2015 for transportation of tobacco, including overnight storage for a fee of $15,000, but that was declined.
92And finally, a ninth occasion, to Matthew Bourke, a truck driver, on 28 and 29 July 2015 for provision of a truck and trailer with side curtains and transportation, including overnight storage at the yard so Alex could check the load. He declined.
93In addition, on 9 June 2015, Mr Coates at JWI was contacted by a man identifying himself as ‘Ahmad’, who said he was representing Rush Imports and Exports, and had an airfreight consignment he wanted JWI to handle. After an exchange of emails received from [email protected], a completed letter of authority, together with a copy of the invoice and packing list and a photograph of Ahmad Melhem’s Victorian driver's license. JWI sent this letter of authority to Menzies. JWI told Menzies they would be handling the cargo on the consignee's behalf.
94Mr Coates dealt with you, using the name ‘Alex’, and another male calling himself ‘Ahmad’ on the phone. Mr Coates received emails from you, operating the [email protected] address, and later a Norman Williamson of JWI also dealt with you using the name ‘Alex’.
95JWI also contacted numerous warehouses on behalf of Rush Import and Exports Pty Ltd to find one that would be willing to store the consignment. They had difficulty because many warehouses did not have a license to store tobacco and there were concerns about insuring the tobacco.
96In late June 2015 you, Hassan Barakat, again using the name ‘Alex’, approached OSS Maritime Group (OSS), a maritime service and logistics company with a bonded warehouse. You obtained an agreement that they would store 37 pallets of tobacco for one week before re-exporting part of it to New Zealand. OSS agreed on the condition that appropriate insurance was obtained.
97Of course, if the tobacco product was re-exported, duty would not be payable. But of course, the aim was not to re-export the tobacco. After some negotiation, insurance was taken out with GIO Insurance through a Shon Jones, a business insurance specialist at GIO. You, again using the name ‘Alex’, dealt with him using the 7817 and the 1278 numbers, and the [email protected] address. Insurance for the consignment was settled and paid for with a credit card in the name of ‘Ahmad Melhem’ in the sum of $5000 as a deposit.
98The certificate of currency was issued for the policy on 31 July 2015. On 21 July 2015, Arabian International Cargo and Clearing sent an email to the [email protected] address, requesting payment for invoices as follows:
(a) USD$41,440 for tobacco products (37 pallets);
(b) USD$52,364 for freight and handling charges; and
(c) USD$5000 for packing costs.
99JWI created an N20A for the consignment on 3 August 2015, declaring an importation of tobacco products. The importation had a declared value of AUD$57,553.88. As the goods were being entered under N20, no duty was payable.
100You, again as ‘Alex’, sought to arrange your own transportation for the consignment, but JWI was suspicious and did not allow this to take place. And so, you, Hassan Barakat, came close to successfully substituting this third importation.
EXECUTION OF SEARCH WARRANTS
101On 6 August 2015, ABF officers executed a Customs Act 1901 seizure warrant at the business premises of Menzies Aviation in Melbourne Airport in relation to that importation. The boxes containing the cigarettes on the 37 pallets under the shipment number MAWB 607-62973422 were seized on the grounds that they had been smuggled and they were removed to a secure storage facility.
102Various search warrants were executed at Mr Melhem’s house, your house, Hassan Barakat, and your house, Dib Barakat. On 7 August 2015, police were present, and during the course of the warrant execution you, Hassan Barakat, participated in a record of interview. After being cautioned you were questioned about the third importation. It is important to note there was no questioning in relation to the first two consignments. Thus, whatever you said relates solely to that third importation.
HASSAN BARAKAT’S RECORD OF INTERVIEW AND SUBSEQUENT EVENTS
103I do not intend to set out in detail all the things you said which are contained in paragraph 134 of Exhibit 1, save that you said that both you and Mr Melhem called the warehouses, Mr Williamson told you that the tobacco could be moved only by approved transporters, that Mr Williamson arranged EB Transport to transport the tobacco to OSS, that ‘we’ owe Mr Williamson $4600, and that ‘we’ owed 20,000 in storage costs. You denied organising the shipment under Mr Melhem’s name, you confirmed that 'we’ bought it for $40,000, that ‘we’ would keep it here for a week before sending it to New Zealand, and that you did not have a customer in New Zealand yet. That concludes the passages from which I wish to quote for the summary or your record of interview.
104Eleven days after that interview, on 18 August 2015, Mr Williamson discussed the seizure of the consignment and the process for applying for a return of the goods with you, Hassan Barakat, still using the name ‘Alex’. He followed the call up with an email to [email protected], that ended by saying, 'I don't wish to be involved any further in your matter'. A few days later ‘Alex’ and ‘Ahmad’ attended at JWI and sought assistance with a claim for the return of the goods. Mr Williamson declined to assist with the claim, and you and the other man left.
105But that was not to be the end of the matters in relation to this consignment. On 16 September 2015, Mohamad El Haj and Machhour Ali attended National Storage in Brooklyn and arranged to lease multiple storage units for six months. The rental agreement was completed by Mr Ali and signed by Mr El Haj. Mr El Haj rented four small adjoining units with the internal walls removed to form one unit, equivalent in size to two 20-foot shipping containers.
106The four units were numbered 74, 75, 87 and 88. Each unit was accessed via a roller door. The agreement required alternate contact information. In this section Mr Ali recorded the name ‘Mahamoud Al-Jamil’ with the address 48 Marion Street, Altona North, Victoria, which is Machhour Ali's address, and the telephone number ending with the 0888 number, that was provided on documents for consignments 1 and 2. It is alleged that Mahamoud Al-Jamil is an alias for Machhour Ali.
107On the 17 and 18 September 2015, 37 pallets of ‘herbal tobacco’ were moved from the Truganina warehouse to the National Storage units by Machhour Ali and another. You, Hassan Barakat, arranged for this to take place because you were aware of the search warrant that had been executed by the ABF and wanted to conceal the substituted load. I should add that the other person was you, Dib Barakat. However, that is of no moment whatsoever as you are not charged and are in no way to be punished for that activity.
108A few days later, on 22 September 2015, ABF officers obtained a search warrant for the storage units at National Storage in Brooklyn. They contacted ‘Mahamoud Al-Jamil’ using the contact details provided on the rental agreement. As a result, Machhour Ali arrived at National Storage at 5.12pm. He was handed a copy of the search warrant and he opened the storage units with keys he had in his possession. A total of 37 pallets of black-wrapped pallets were located in the storage unit.
109Each pallet was found to be made up of eight large cartons. A number of cartons were opened and were found to be only partially filled with plastic containers labelled as 'Aroma Molasses', a brand non-tobacco molasses. The 37 pallets were seized, as well as padlocks with keys and a roll of black plastic wrap.
RESPECTIVE ROLES AND CRIMINALITY
110In each of the three consignments, the substituted load was not dutiable. As is plain, in each of these consignments the system was abused, in my view, in a sophisticated way. Your determination, Hassan Barakat, together with others to make the third substitution is patent. Further, the third consignment involves a significant escalation in your criminality.
111The role of others in this exercise, in particular in relation to the third consignment, cannot, with precision, be identified. But what is plain is that you, Hassan Barakat, in each of the three consignments, played the role of a principal, enlisting, in relation to the first and second consignment, the assistance of your brother in order to make the substitution, which was critical to the scheme.
112In relation to you, Hassan Barakat, the three consignments involved no less than 8,480,000 cigarettes. With duty evaded of $3,967,333. In relation to you, Dib Barakat, the first two consignments involved 2,560,000 cigarettes with a duty evaded of $1,184,460.
113In the statement of Peter Korn, ABF supervisor, which became Exhibit 2 on the plea, he estimates that the profit wholesale for consignments 1 and 2 would be $366,848 and in relation to consignment 3 he estimates that the estimated profit wholesale would be $848,336, giving a total profit over the three consignments of $1,215,184.
114So you, Hassan Barakat, have pleaded guilty to three importations with the attempt to deprive the revenue of close on $4,000,000. You, Dib Barakat, you are close on $1,200,000.
115What motivated you? Well for you, Hassan Barakat, profit. It cannot be said how much but it must have been a considerable amount across these three consignments. You, Dib Barakat, were to receive some financial reward which I am prepared to accept was modest. Though again, it cannot be estimated with any accuracy what you would get. Your role of course was a relatively discrete and small role, though critical to the successful operation of this scheme in consignments 1 and 2.
116It was suggested by Mr Richter QC on your behalf, Hassan Barakat, that there was no money trail, there is no suggestion of monies coming forward or backwards from overseas or elsewhere. Perhaps so. Your role however, Hassan Barakat, was that of a principal. Whether there were others who were financiers or had other roles to play is largely unknown to me and in cases such as this, as indeed in many importations including drug importations, it is not possible with precision to identify individuals' roles.
117I have been able to identify your discrete role, Dib Barakat, but in the end in relation to you, Hassan Barakat, your role was, as I have said, that of a principal. You were very much involved in all aspects of this importation into Australia, and more importantly its substitution. That is not to say that there were not others. In the end it is plain that in relation to you, Hassan Barakat, you were prepared to use false identities, trickery and enlist the aid of others, including your brother, in order to achieve your aims.
118In R v Zhang (2017) 265 A Crim R 113 in the judgment of His Honour Chivell AuJ. His Honour at paragraphs 37 wrote:
'Counsel submitted that factors to be taken into account in sentencing for serious revenue offences such as these, should include:
·the role of the offender – in particular, it is important to identify whether the defendant was a principal organiser of the criminal operation or merely acting on the instructions of others;'
119In this case as I have indicated, you Hassan Barakat, acted as a principal organiser. You, Dib Barakat, acted on the instructions of your brother.
120His Honour continued:
·'the sophistication of the offending, or lack thereof;'
121Well plainly this was a sophisticated scheme designed to take advantage of a vulnerability in the scheme since closed.
122His Honour continued:
·'the period over which the offences were committed;'
123Your role in that regard, Hassan Barakat, continued from December of 2014 over into mid-2015 and beyond. Your role, Dib Barakat, was confined to a period of a couple of weeks or thereabouts.
124His Honour continued:
·'the quantity of the tobacco imported and/or possessed and the amount of duty defrauded or evaded;'
125The quantity of tobacco was significant as was the duty defrauded or sought to be evaded.
126His Honour continued:
·'whether the loss of revenue has been repaid;'
127Only the third consignment was seized and the sum of $1,184,460 has been lost to the revenue and not repaid.
128His Honour continued:
·‘whether the offending involved other illegalities, such as the use of false identities;'
129That is applicable to you, Hassan Barakat, albeit that the two of you endeavoured to hide the fact that you knew each other during the course of the transfer of the consignments 1 and 2.
130His Honour continued:
·'whether the defendant was involved in distribution and sale of tobacco products within Australia;'
131That is an irrelevant consideration. There is no evidence that you were involved in any distribution and sale of the products within Australia.
132His Honour continued:
·'the extent to which the defendant gained financially from his or her offending.'
133Well, it is impossible to say what you obtained or sought to obtain, Hassan Barakat, but in my view it must have been a not insignificant sum, whereas in relation to you, Dib Barakat, it was, I think, relatively small, certainly pathetically small considering the risks that you were taking at this critical stage of the process of collection of the imported product.
134His Honour at paragraph 38 endorsed those matters that should be taken into account saying, 'I agree that these factors should be taken into account when sentencing for an offence against s 233BABAD of the Customs Act.’
135Thus, insofar as you are concerned, Hassan Barakat, I assess your criminality as being high. Your criminality, Dib Barakat, is towards the lower end of criminality in these particular cases of consignments 1 and 2.
136As his Honour RS Hulme AJ in R v Saleh [2015] NSWCCA 299 wrote at paragraph 47:
'Premeditated offending for the rewards or benefits that criminality may bring is a calculated risk. As the cases mentioned show, the rewards are not infrequently enormous. The criminality is often difficult to detect and it is impossible to believe that many people do not get away with it. Accordingly it behoves the courts to ensure that the penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend.'
PERSONAL MATTERS
137I now turn to matters personal to each of you.
138Commencing with you, Hassan Barakat, you are the fifth of six children born in Lebanon. Your father was a well-respected principal at a local school. He was a role model. Your mother ran a milk bar. You finished private schooling in Year 12 and by 19 years old you migrated to Australia with poor English. You worked with your brother Dib in the fish and chip shop. You studied mechanical engineering and graduated in 2009.
139Since 2010 you have lived with your wife and you have three children aged six years, five years and ten months old. Your wife is in poor health which I will come to in due course. References tendered on your behalf speak highly of you. Indeed, references tendered on behalf of your brother also speak highly of you. I intend to take just a few passages from a variety of these references because they all, as with you, Dib Barakat, speak with the one voice.
140Robert Asbiridonne writes if you:
'I have known Hassan Barakat for the last 6 years. Mr Barakat runs a very professional vegetable supplies enterprise. Barakat Vegetables serves us with fresh vegetables to many of our sites, the quality is A grade and the prices are competitive.
Hassan is a very professional and caring person and always accommodating to any request or any emergency supplies when requested at short notice. Hassan Contributed to many fund-raising activities and showed a great human side and corporate social responsibility.’
141Ali Halloum, Vice President of the Newport Islamic Society writes of you:
‘We have known Mr Hassan Barakat for may years before moving to our area over 5 years ago and joining our community. Some of us have also known his extended family and parents who are known to offer great services to their community where they live.
Mr. Barakat is known to most of us as a respectful person, and of good character. He is also known as a hard-working family man and a happy outgoing and active community member. He did not hesitate over the years to providing support to community organisations and services which benefited many people going through difficult times in their lives.’
142Piero Prinzi writes of you:
‘While Hassan was my student he was always self-motivated, responsible and committed to the college requirements. Hassan always showed strength of character and good leadership qualities being an asset to the class. He always encouraged the class to look forward and abided by the college rules.
Hassan is a very generous and supportive friend. He has used his positive qualities to set up a successful business.’
143As part of the materials provided included a reference by your father Ali Hassan Barakat in which the last paragraph he writes of the two of you:
‘My sons are of good character. They have been and still an example to follow in their first and second home country according to the testimony of many people. You Honour have the right to ask and seek information and you will witness the truth with your eyes.’
144And that is the truth which I have witnesses with my eyes, having seen both of you on the many occasions when you have come before me, both of you respectful, both of you mindful of your families, both of you humbled by what you have done and where you have brought yourselves.
145Your mother Hamda Hussein Rasheed writes in the last paragraph of her letter:
‘Please your Honour; ask everyone and they will all tell you that they are polite and respectful and that offer help and support to the needy. They are example to follow in being humane. My sons are very remorseful for importing tobacco. Such an act has affected our family and caused illnesses and anxiety, depression and physical, mental, and social issues, heart diseases and hemiplegia.’
146Your sister Rose Ali Barakat writes among other things:
‘Just to show Your Honour the opinion of the society about my brothers and the level of assistance and support they do for many people with disability and chronic illnesses. People who do not own money to buy medicine. Both of my brother always compete to offer a helping hand and offer support to many poor families and many orphans.’
147Whilst on this topic of how you are regarded in your community and by your family, I turn to the exhibits tendered during your plea, Dib Barakat, which are common in many aspects with the references to your brother as many of the people know both of you, unsurprisingly so.
148Elham Ali writes:
‘In all the years I have known them, Dib and Hassan have been extremely responsible, honest and courteous. I am confident in their characters as honest, caring and highly regarded family men.’
149Adnan Mir writes of the two of you:
‘I am aware of the financial burden and tremendous stress of having to deal with these charges. I do not believe this falls within their characters and they have expressed their remorse and regret of being involved in such a situation.’
150Your sister Najwa Barakat writes:
‘Over the past four long years I have witnessed the strain and stress of it all and how these events have impacted on them and their families. Their martial relationships have failed, they can not travel to see mu elderly parents unless on bail, they can not travel with their children overseas, they have both attended upon psychologists, they both suffer from insomnia, severe depression, anxiety, and eating disorders. They have been prescribed medication but have chosen not to take due to the side effects.
I know for certain they are regretful and sorry that they have to put themselves and us in such a difficult situation in not only dealing with these court matters but also the possible outcomes.’
151And so on and so on and so on. All, as I say, speak with the same voice. You have both come to Australia and become model migrants, leaving aside these matters. For you, Dib Barakat, I consider that this is an aberration. I cannot say the same in relation to you, Hassan Barakat. Your involvement was too prolonged, your role that of a principal and you were involved in all three consignments. The third a significant escalation in its criminality.
152Zahra Ali, your partner, Hassan Barakat, has also written a letter. It is an instructive one. You are being sentenced, as with your brother Dib Barakat, for events in relation to consignments 1 and 2, but now I must sentence you almost five years after those events were concluded.
153She writes in the second page:
‘Due to his passport being confiscated he has struggled as he’s been apart from his parents and siblings overseas. He has not been able to make any major commitments towards his business, he has not been able to lead a normal life. He has not even been able to take his young children to meet their grandparents and extended family overseas. It honestly felt as though he has been sentenced these past few years due to the restrictions involved.’
154She also speaks to your feeling very guilty, remorseful, remorseful, sorry and regretful for your actions.
155It is that theme of having your life on hold for such an extended period that I will return to in terms of that delay. For indeed, in both your cases, your lives have been placed on hold pending resolution of these matters.
156In addition, you, Hassan Barakat, have concern for Zahra Ali, mother of your three children. She has suffered severe depression for the last 10 months according to a letter of her treating doctor dated 19 November 2019, which became Exhibit HB2, and has chronic renal disease as set out there. All in circumstances where she has had the care, or will have the care, of children aged five years, six years and 10 months.
157I am satisfied in the circumstances of this case that your concern for your wife and your three children whilst you are incarcerated will make your incarceration more burdensome than for others and thus there is a need to moderate your sentence.
158There are other matters which I will come to in due course which are common to both of you but before I go to those other matters, I turn to the personal circumstances of you, Dib Barakat.
159You entered Australia at the age of 20 in 2003. You worked constantly ever since. You have separated from your wife albeit under the one roof, living in a bungalow out the back. Your marriage broke down because of your seven day a week work and other conflicts within the family. You have children aged 13 years, nine years, five and a half years, two and a half years and a young baby.
160You have worked with your brother in the current business. You completed your high school and then studied at university and worked simultaneously as a teacher for some two years, as is common in Lebanon. You have worked in a fish and chip shop for some five years up to 2010 and then continued on working at the South Melbourne Market and other workplaces.
161You have seen a psychologist concerning your depression and other associated problems. Suffice it to say that there are common aspects to both of you. You both come from a strong family background. Aside from this offending your conduct has been exemplary. You both have a strong work ethic and you are both devoted to your children. You have no prior criminal history although you, Dib Barakat, have been involved in some subsequent motor offences or related offences which are of no moment whatsoever to me.
OTHER SENTENCING MATTERS
162There is in both of your cases the fact that you were migrants and became, as I have said, model migrants, leaving aside this offending. I accept that you are both remorseful. You have each pleaded guilty and though not at an early point of time, that is but one criterion that I take into account in assessing the significance of those please of guilty. Of course, in this case the utility of those pleas of guilty must be taken into account.
163It is plain that there would have been at least two trials, if not perhaps more. One involving you, Hassan Barakat, canvassing all three consignments. You, Dib Barakat, for the first two. Each of those trials would have been complex. Each of them would have taken many weeks to come to their conclusions and thus the utility of your pleas of guilty is high. I also take into account your pleas of guilty as evidence of your remorse and insight, which in both cases I accept that you are both truly remorseful and truly insightful.
164Insofar as specific deterrence is concerned I consider it to be of no moment in relation to you, Dib Barakat, and in relation to you, Hassan Barakat, deterring you from further offending is significantly moderated.
165In relation to you both these matters are old. For relatively young men to be sentenced in your case, Dib Barakat, for what you did on 6 and
19 December 2014 and this being late November 2019, in itself evidences the need to take into account that very considerable delay. Both your lives have been placed on hold. For both of you these matters have been hanging over your head for a lengthy period of time.166It has affected you in terms of moving forward with your life, it has affected you, with the birth of two children in one case. It has affected you with depression. True it is that some aspects of the delay could be laid at your feet, consistent with the authorities that I have considered, including the decision of Arthars v The Queen [2013] VSCA 258, where his Honour Forrest AJA helpfully sets out matters of relevance in relation to delay in paragraphs 27 to 29 in particular.
167The question of delay is dealt with earlier by the High Court in Mill v The Queen (1988) 166 CLR 59. And finally, R v Todd [1982] 2 NSWLR 517, where at p.519, Chief Justice Street writes towards the bottom o that page:
'Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner required weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.’
168In all these circumstances, I am satisfied that given the delay and given the opportunity to prove yourselves during that delay, with the aberration in relation to you, Dib Barakat, in those driving offences, you have demonstrated, as I have said, insight and remorse. In all the circumstances, I am satisfied that the prospects of your rehabilitation, each of you, are excellent.
169General deterrence, deterring others, is nonetheless the principle sentencing factor I must take into account. That sentence that I impose must send a clear message to those who would likewise seek to defraud the revenue, that such offending will result in stern punishment, depending on the role of the offender in question, among other things. There is also a need for there to be just punishment and denunciation of this offending. All are entitled to expect that the revenue will not be defrauded. It is the revenue which permits us to have the society and community that we have.
170Stand up, Hassan Barakat. Taking into account all these matters, I sentence you to be imprisoned for a period of four years and three months. I direct that you be eligible for release on parole after having served two years and six months. I declare that but for your pleas of guilty, I would have sentenced you to be imprisoned for a period of six years, with a non-parole period of four years. Is there any pre-sentence detention?
171MS NICHOLSON: No, Your Honour.
172HIS HONOUR: Take a seat, Mr Hassan Barakat.
173Stand, Dib Barakat. In relation to you, Dib Barakat, I sentence you to be imprisoned for a period of 20 months. I direct that you be released upon a two year recognisance release order after you have served 10 months of that recognisance release order, which will be in the sum of $1000 for a period of two years. I declare that but for your pleas of guilty, I would have sentenced you to be imprisoned for 30 months, to be released after serving 20 months on a recognisance release order in the sum of $1000 for a period of three years. There is, likewise, no pre-sentence detention?
174MS NICHOLSON: Correct, Your Honour.
175HIS HONOUR: Yes, take a seat. Are there any particular matters that need my attention when revising the reasons for sentence.
176MS NICHOLSON: No, not when revising.
177HIS HONOUR: Anything else?
178MS NICHOLSON: There is the matter of the forfeiture order that my instructor ‑ ‑ ‑
179HIS HONOUR: Yes, have I got that?
180MS NICHOLSON: I can give you a hardcopy, if that assists?
181HIS HONOUR: Yes, if you would? Anything to be said about the forfeiture orders?
182MR CHERNOK: No, Your Honour.
183HIS HONOUR: Thank you.
184MS NICHOLSON: And we have the copy of the RO here that Mr Dib Barakat can sign.
185HIS HONOUR: Thank you. Thank you, Mr Rouse. I made that order.
186MS NICHOLSON: Thank you. As the court pleases.
187HIS HONOUR: Mr Chernok, can you explain to Mr Dib Barakat the consequences of failing to comply with that recognisance release order?
188MR CHERNOK: Yes, of course, Your Honour.
189HIS HONOUR: The formal orders, are they ready? Yes, would you remove both Mr Hassan and Dib Barakat?
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