Director of Public Prosecutions v Haddara, Ahmad
[2012] VCC 2055
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 12-00073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMAD HADDARA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2012 | |
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Haddara, Ahmad | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2055 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Dishonestly causing a loss to a Commonwealth entity and that entity is the Australian Customs and Border Protection Service, knowing or believing that the loss will occur or that there is a substantial risk of loss occurring, contrary to s.135.1(5) of the Criminal Code – Released on recognisance.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn |
HER HONOUR:
1 Ahmad Haddara, you have pleaded guilty to two charges both Commonwealth offences.
2 Charge 1 concerns dishonestly causing a loss to a Commonwealth entity and that entity is the Australian Customs and Border Protection Service, knowing or believing that the loss will occur or that there is a substantial risk of loss occurring, contrary to s.135.1(5) of the Criminal Code.
3 That charge relates to you importing 575 kilograms of cut tobacco into Australia in circumstances so as to evade payments of the relevant Customs duty.
4 Charge 2 concerns dishonestly causing a risk of loss to a Commonwealth entity, the same entity, the Australian Customs and Border Protection Service, knowing or believing that a loss will occur or there is substantial risk of a loss occurring by unlawfully importing 4,634 kilograms tobacco leaf into Australia in circumstances so as to evade the payment of Customs duties.
5 Those offences are both serious and the maximum penalty that Parliament says I can apply is five years' imprisonment.
6 I shall now proceed to sentence you and I have had regard to Crown opening that was read into the plea hearing which is marked Exhibit 1. There was no opposition to the facts as alleged.
7 The offending briefly relates to you importing into Australia a shipment of tobacco products, namely cut and uncut tobacco, from Lebanon without you paying relevant duty. You had travelled back to Lebanon to attend the wedding of one of your sons and whilst there, you organised that shipment.
8 Custom laws in Australia provide that all tobacco products lawfully imported under licence are subject to payment of Customs duties and the way the two charges are framed reflects that in relation to cut tobacco, there is no requirement of a licence but in relation to uncut tobacco, it cannot be legally imported unless the importer holds a licence.
9 Charge 1, relates to the duty payable on 573 kilograms of cut tobacco. The total of the Customs duties that you evaded was $183,933 because you failed to declare that cut tobacco. In relation to the uncut tobacco, you did not hold a licence to import that and had it been imported legally and declared, you would have been paying $1,487,514. By importing it illegally and failing to declare if to Customs, you effectively put the goods outside Customs' knowledge and control, therefore you deprived Customs of the ability to level or collect the Customs duty that was payable on the uncut tobacco. That is why the second charge is framed on the basis that you caused a risk of loss of the Commonwealth for the sum of $1,487,514.
10 The tobacco was detected by Customs officers and an arranged controlled delivery was made. On 28 July 2009, a search warrant was executed. You were arrested and taken to Customs House. You took part in the first record of interview but that was cut short because of your ill health. You then participated in a second interview on 13 August 2009. You made certain admissions in relation to the record of interview about importing the tobacco that you had sourced from your family farm in Lebanon.
11 I am satisfied, having regard to all the circumstances that you knew and understood that you were importing into Australia cut and uncut tobacco and the manner that you did so was to avoid the relevant duty payable.
12 In sentencing you, there is a need to emphasise both general and specific deterrence so that a clear message is sent to others who may be like minded that such activities are not condoned by the court.
13 For reasons that I shall now go into, I consider that the most appropriate disposition for this offending is a custodial sentence, but that the circumstances warrant that you do not have to serve that sentence immediately. Rather, you will be released on a recognisance to be of good behaviour for two years.
14 Your counsel, Mr Dunn, went into your past history and background. Briefly I note you are 49, you are married, you are currently on a disability services pension, you have a plethora of medical ailments. You have severe unstable complicated type 2 diabetes, you are insulin dependent, you have multiple complex medical issues because of complications from your diabetes, you suffer mental illness and intellectual disability. You have long-standing severe affected disorder, depression and anxiety partly caused by the effects of war in Lebanon. You have been assessed as suffering from moderate to severe intellectual disability, you have asthma, allergy, chronic disc degeneration with recurrent back and leg pain and fibromyalgia -like problems. You have memory loss caused by depression, intellectual disability and poor coping skills. You suffer chest pain with high risk of cardio-vascular events and require on-going comprehensive medical, physical and psychiatric care and intensive diabetic control.
15 You are a man who comes from a village of Akkar which is located in the north of Lebanon near the Syrian border. You have little by way of formal education. You left school early to work on the family farm. You are barely literate, you cannot read or write Arabic. Your English skills are non-existent.
16 Mr Dunn went into a lot of detail about your background, about the difficulties that you and your family experienced over many years by reason of the location of your family farm close to Palestinian camps and close to the Syrian border. You have been subjected to extreme difficulties as a consequence of bombings that have taken place in your area and, on one occasion, both you and your father were shot by robbers in the legs and back whilst guarding the family farm.
17 As a consequence of all the turmoil and upheaval in your area, your wife instigated the return of your family to Australia. You arrived in 2005 and with the support of your extended family, who were here in Victoria, you opened a sweet shop in Blackshaws Road, Altona. There you operated a pastry shop seven days a week.
18 Thereafter, you have had severe difficulties in settling in Australia and you have been backwards and forwards to Lebanon seeking treatment for your complex multiple medical problems.
19 The explanation for your offending was that you just wanted to provide tobacco product for your family for their use for Ramadan. None of your family members were aware that you had organised such a large shipment from Lebanon.
20 I heard evidence from your eldest son, Mohammed, who expressed his deep frustration in you bringing in such a large quantity of tobacco product without there ever having been any proper family discussions. He thought to import such a large amount of tobacco product was - and I use his word - "crazy".
21 Since he has become aware that you did this, he has spoken to you and forbidden you to import anything else from overseas. Notwithstanding your son loves and respects you as the patriarch of the family, he considers that you are no longer capable of making any rational decisions in relation to the importation of any goods to Australia.
22 In sentencing you, I have had regard to all the mitigating factors. They are that you pleaded guilty, and I accept there is real utility in your plea. It is obvious from discussions in the plea hearing that Mr Jones, the Customs agent, is now dead and his death and difficulties associated with the evidence he may have given was acknowledged by the prosecutor. You have spared the Commonwealth the cost and inconvenience of a trial. You have thereby facilitated justice. Your sentence will be discounted accordingly.
23 I also take into account by your plea of guilty. You now acknowledge that what you did was wrong and I accept you are remorseful. I have taken into account the delay between the charges being laid and the committal concluding in January 2012. I have taken into account your co-operation with the authorities evidence by the fulsome answers that you gave in the two records of interview. I have taken into account you have no prior criminal history nor are there any outstanding matters.
24 I have had regard to the fact that you have a strong and supportive family around you and your family are adamant that you will no longer be in the position to undertake any activities that could result in offending of a like nature in the future. I consider that the likelihood of re-offending in those circumstances is negligible.
25 I have had regard to the application of the Verdins principles. Given your documented poor intellectual capacity and psychiatric problems, I consider your moral culpability as significantly reduced in relation to this importation. I have also had regard to your multiple and complex physical and psychiatric conditions and consider any gaol term would have been very difficult for you and Could have significantly worsened your conditions.
26 I have had regard to how serious this offending was and consider ultimately that a gaol term ought be imposed. However, I have already explained that you will be released on a recognisance to be of good behaviour from today's date for the reasons that I have just outlined.
27 Mr Gibson, on behalf of the Crown, put a head sentence of between 12 to 24 months with a minimum term of nine months or lower. He emphasised that it was not outside the range of sentencing dispositions available to the court if the court were to impose a term of imprisonment but that it not be served immediately.
28 Your counsel, Mr Dunn, sought a non-custodial sentence on your behalf.
29 I have considered all the general sentencing principles set out in s.16A of the Crimes Act (Commonwealth), I have regard to all the matters that I have previously referred to.
30 I shall now announce the formal court orders.
31 On Charge 1, you will be convicted and sentenced to 13 months' imprisonment, the sentence is to commence today's date. On Charge 2, you will be convicted and sentenced to 13 months' imprisonment, the sentence is to commence today's date. The total effective sentence is 13 months' imprisonment. The court orders your release under s.20(1)(b) of the Crimes Act (Commonwealth) 1914 forthwith upon you giving security by way of recognisance in the sum of $1000 on the condition that you be of good behaviour for a period of two years commencing from today's date.
32 As required by s.18(4) of the Sentencing Act Victoria and by s.16E of the Crimes Act (Commonwealth) I declare no time spent in custody and I direct that that should be noted in the records of the court.
33 But for your plea of guilty, I would have imposed a total effective sentence of two and a half years' imprisonment, commencing today's date with a non-parole period of 15 months.
34 Are there any order that I have to make?
35 MR GIBSON: Excuse me, Your Honour - - -
36 HER HONOUR: I don't have to do a non-parole period, is that right, in the Commonwealth?
37 MR GIBSON: You don't, it would be just released on a Recognisance Release Order after 15 months or whatever Your Honour just said.
38 HER HONOUR: I see, two and a half years' imprisonment with a Recognisance Release Order after service 15 months, because it is less than three years.
39 MR GIBSON: Thank you, Your Honour. I was not as helpful as I should have been when my learned friend raised s.9 of the State Sentencing Act
40 HER HONOUR: Yes, about aggregate sentence.
41 MR GIBSON: - - - about aggregate, I'm not seeking to change anything but I just want to be a bit more helpful.
42 HER HONOUR: No, it could have been imposed.
43 MR GIBSON: It could have been and my instructor has just asked me to bring to your attention the Federal sentencing - - -
44 HIS HONOUR: The amendments?
45 MR GIBSON: No there's a paper on this and I'll just read it - - -
46 HER HONOUR: The new Federal Sentencing Guidelines.
47
MR GIBSON: It just says this "That an aggregate sentence of imprisonment can be imposed on indictment for a number of Federal offences via s.9 of the Sentencing Act", that's the State Sentencing Act, "as applied by s.68 of the Judiciary Act. Alternatively, if the court decides to impose an aggregate on the basis that all sentences are concurrent, this should be explained" and
then - - -
48 MR DUNN: I think the same in similar vein.
49 HER HONOUR: Yes, the same.
50 MR GIBSON: Yes. It goes on to say "There are limitations on the appropriateness of an aggregate sentence on indictment and procedural requirements the articulation of individual terms and the extent of concurrency and cumulation which makes the imposition of an aggregate sentence of imprisonment on indictment quite problematic". And that's why I steered Your Honour away from it earlier.
51 HER HONOUR: I think in this case, given it's the one day and the same sort of criminality it would have been fine but we have sorted it out.
52 HER HONOUR: We got there in the end.
53 MR GIBSON: So has the recognisance been prepared by my instructor just now, Your Honour.
54 HER HONOUR: Yes and I have to sign that. I will hand over to Mr Dunn to explain to Mr Haddara.
55 MR DUNN: That will be explained - it has been explained but it will be explained again. I might use the interpreter outside court just to make it completely clear, Your Honour.
56 HER HONOUR: Very well. My associate has to take that document down and get Mr Haddara to sign and she will witness that. I will ask my associate to make copies for everybody.
57 MR GIBSON: Thank you, Your Honour.
58 MR DUNN: He's printing Ahmad H but I don't know that we're going to get a whole lot more - Ahmad H.
59 HER HONOUR: That's fine if that's how he signs his name normally, I will accept that as being his signature, Mr Dunn.
60 MR DUNN: Yes I don’t think that's a problem. It's a printed "Ahmad" with and "H".
61 HER HONOUR: That's fine.
62 INTERPRETER: Your Honour, he would like to say something - he was asking me to ask you - - -
63 HER HONOUR: Very well.
64 MR DUNN: Let me just - - -
65 HER HONOUR: I'm sure it will be all right.
66 MR DUNN: I think I can - "I swear by Almighty God that I will never do anything and that what I have done in the past will never ever happen again".
67 HER HONOUR: Excellent. Yes, I think he has learnt a lot from this experience. It would have been a very costly experience for him.
68 MR DUNN: Thank you, Your Honour.
69 ACCUSED: (Through interpreter) I'd like also to extend my actually gratitude to the Customs Officers - - -
70 HER HONOUR: That's very nice to hear.
71 ACCUSED: Thank you.
72 HER HONOUR: Thank you.
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