Director of Public Prosecutions v Hassan
[2022] VCC 2181
•5 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| UDAY HASSAN |
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JUDGE: | HIS HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2022 | |
DATE OF SENTENCE: | 5 December 2022 | |
CASE MAY BE CITED AS: | DPP v Hassan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2181 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Botros | |
| For the Accused | Ms Z. Garde-Wilson |
HIS HONOUR:
1 Uday Hassan, you are to be sentenced for one charge of importing tobacco products with intent to defraud the revenue and one charge of possession of such products knowing that they were imported with such intention. These are offences under ss233BABAD(1) and (2) of the Commonwealth Customs Act. Both attract maximum sentences of 10 years' imprisonment.
2 You committed the offences, which are closely related, in the period from 5 to 8 October 2020. When arrested and interviewed by Australian Border Force officers on 8 October you denied the offending. Ultimately the matter came before me for trial on 13 September 2022, the indictment alleging these two offences. On 20 September the jury returned verdicts of guilty on both charges. You were then remanded for plea which was adjourned and heard on 24 November.
3
At that plea hearing Mr Botros, for the Crown, provided a written outline of submissions on sentence. He also provided a schedule and summaries of comparative sentencing cases. Ms Garde‑Wilson, who appeared for you on the plea, tendered the forensic psychological report of Carla Lechner dated
6 September 2022; the medical summary of your general practitioner,
Dr Ahmed Elkafrahi, dated 29 August 2022; and a number of letters of character reference. Ms Garde‑Wilson also provided a written outline of submissions on the plea.
4 The circumstances of your offending are set out in the prosecution trial opening. Those stated circumstances are consistent with the jury verdicts. My own summary may be short. It is also informed by matters put on your behalf, not challenged by the Crown.
5 In early October 2020 a shipping container holding tobacco products arrived at Melbourne Port. The tobacco products were 600 kilograms of molasses tobacco, a form popular in the Middle East, and about 15,000 cartons of cigarettes. The correct customs duty payable was $4,682,416.20. Relevant shipping documents falsely described the goods as tools, parts or other electronic equipment. On that basis duty paid to a customs broker was $1,907.92. That is the essence of the offending.
6 Other disguise associated with the enterprise was the false use of another name, business and email address as the importer in electronic communication with the broker; and, in the course of that, provision of the mobile phone number of another unrelated person. Both persons gave evidence at the trial.
7 Your role in the importation, Charge 1, included payment, or arrangement for payment, of the lesser duty and brokers fee, made through and to the customs broker. You paid for freight transport of the container from the dock, ultimately to a self-storage business in Tullamarine. You attended that business on 7 October and entered an agreement for storage there. You arranged for rental of a truck to attend there and collect the containers' contents on 8 October. Consistent with the jury verdict you did these things knowing or believing those contents to be tobacco products and that the duty paid was very much less than what was therefore payable.
8 However, on 5 October Australian Border Force had examined the container and discovered the tobacco. A controlled delivery was arranged, including repacking of the contents, but for samples taken for testing, and a listening device place on or within the container. On 8 October you attended the storage depot with associates and a rented van. There was also another smaller vehicle. Australian Border Force officers attended and arrested you in the course of moving the contents from the container.
9 Some conversation of the container was recorded by the listening device. Improved and audible parts were led through an interpreter at trial. The possession of the tobacco products at the storage depot on 8 October, knowing them to be imported and the lesser duty paid, is Charge 2.
10 You are a 30 year old man awaiting this sentence in remand custody. You were so remanded after verdict on 20 September. You were 28 at the time of offending. You have no prior convictions and there are no subsequent or pending matters.
11 You were born in Iraq, coming to Australia at 17. In Iraq you were a victim of the instability and dysfunction of that country at that time. Your older and only brother was kidnapped in 2008 and is presumed dead. You witnessed the killing of your father in 2009. Your mother died in Iraq in 2017. You came to Australia as a political refugee in 2010. This included travelling by boat from Indonesia, a journey lasting three to four days. After more than 12 months in detention centres you were granted a humanitarian visa. Detention was very difficult and during it you attempted suicide. You are now a permanent resident; however, that is at risk and likely to be lost to you because of this offending and my sentence for it. I shall return to this.
12 You have two children, aged six and three, to a first marriage. Despite difficulties in that marriage you are involved in their support and upbringing. You married your present wife about a year ago. You have a son aged nine or 10 months. Both your present and former wife are supportive of you and have written letters tendered before me. Your family lives in St Albans.
13 You were educated in Iraq to Year 11 or 12 level. Adjustment to Australia was not easy and it included some homelessness. You have certificates in security and traffic management, a forklift licence and construction industry cards. You have worked in security, labouring positions, as a cleaner and driver. Your most recent employment has been as an Uber driver. Employment has been affected by a number of health problems, diabetes, obesity, asthma, a back condition, skin condition and digestive problems. You have been advised to seek weight loss surgery.
14
As to your mental health, you presented to forensic psychologist
Carla Lechner with symptoms of major depressive disorder and post-traumatic stress disorder. Those diagnoses are consistent with the psychometric testing and with your life's experience. You currently take antidepressant medication.
15 As raised at your plea, my sentence will mean mandatory cancellation of your Australian residency status and you will face deportation unless there is a successful review of that to the relevant Commonwealth Minister. Although in a sense speculative, I see deportation of you as likely. That is the realistic assessment.
16 This was serious offending against the Australian revenue measured in terms of amount of duty sought to be avoided and a level of sophistication. For example, the use of false identification described. I do not see you as high in the hierarchy of the enterprise. Your exposure to identification and arrest is consistent with this assessment. However, your role was significant and important. I find that your motive was financial gain. The measure of that is not known.
17 The offending and its circumstances make relevant sentencing considerations of your moral culpability, deterrence, condemnation and proportionate punishment. General deterrence is a primary sentencing purpose. A sentence of imprisonment, a head sentence significantly longer than what will entail immigration cancellation is necessary.
18 However, in your case there are also relevant moderating factors. Particularly they are as follows.
(i) You are entitled to be seen as having genuine prospects for rehabilitation. This is supported by your limited criminal history.
19 Yes, I have omitted some reference to that earlier. I will attempt to place it properly in the sequence of my reasons. Yes, I will go back to the point. I will correct this on revision. I am sorry about this. I said have stated in respect of mental health that you currently take antidepressant medication. I should have gone on to say at that point: as stated you have no prior convictions. In 2015 you were found guilty of riotous behaviour and use of a controlled weapon, however, you were fined without conviction. This prior offending is not of high relevance.
20 Then I went on to speak of the consequences of my sentence in terms of likely deportation. I will move forward now to the part where I stopped and returned to the earlier part of my reasons. There is some repetition but not much is necessary.
21 I repeat, however, in your case there are also relevant moderating factors, particularly they are as follows:
(i) You are entitled to be seen as having genuine prospects for rehabilitation. This is supported by your limited criminal history, the tendered evidence of your good character and your family support.
(ii) Your personal history and circumstances. This includes the marked trauma of your developing years and what has followed in coming to this country. Your mental health conditions are also relevant.
(iii) I find that you will suffer considerable hardship in prison. Your mental and physical health problems are relevant to this. Particularly you will suffer the anxiety associated with likely deportation, including the uncertainty of your final fate. This will impact directly upon you and, in addition, you will reflect anxiously, and no doubt with great regret, upon the hardship your offending, imprisonment and deportation will bring to your family. I accept that you are in the category of a person who has committed to a permanent life in Australia. I also accept that you have overcome very significant difficulties to achieve the opportunity of that.
(iv) Related to this it is now established that hardship to others is a relevant consideration in sentencing for Commonwealth offences and is not subject to the test of exceptional circumstances as in respect of Victorian offences. This was an agreed position at the plea. The evidence and matters put at plea persuade me that there will likely be substantial hardship to your children and their mothers by reason of your imprisonment, then likely detention in immigration custody and deportation. In such circumstances your children will be separated from you and your support for a long time. I see the impacts of such detention and deportation to be important moderating factors in your case, relevant both to your head sentence and the stated period of custody to be served.
22 The principle of totality applies. The two offences involve different conduct or acts; however, logically they are closely connected. Cumulation should be modest.
23 I have considered the comparative cases provided which I found helpful. However, I also bear in mind the need to sentence individually to your case and circumstances. Having considered and weighed what I find to be the relevant matters, I sentence you as follows.
24 Now, how was the arithmetic, Mr Botros?
25 MR BOTROS: Yes, it's correct, Your Honour.
26 HIS HONOUR: All right. I'm glad to hear that. All right. Stand up, please, sir.
27 On Charge 1 you are sentenced to two and a half years' imprisonment.
28 On Charge 2 two years' imprisonment.
29 I effectively direct that four months of Charge 2 be served cumulatively on Charge 1. That is, the sentence for Charge 1 commences today. The sentence for Charge 2 10 months from today. That is a total effective sentence of two years and 10 months.
30 I order that you be released upon a recognisance release order after serving 14 months of that sentence. The recognisance will be in the sum of $5,000. It will run for a period of two years and the usual terms apply. I shall formally put it to you when the document is prepared.
31 What's the updated s18 period?
32 MR BOTROS: It's 76 days.
33 HIS HONOUR: All right.
34 I declare under s18 of the Victorian Sentencing Act pre‑sentence detention already served of 76 days.
35 Are there other matters that I need to - other orders that I need to make? I don't think so.
36 MR BOTROS: No, I don't think so, Your Honour.
37 HIS HONOUR: This wasn't a plea, of course, was it? It was a - which I'm well aware of and in terms of coming to the right sentence. All right. Yes, take a seat. We'll prepare the document for you for the recognisance. All right. Who prepares it, the Commonwealth, does it?
38 MR BOTROS: My instructor is preparing it now, Your Honour. It shouldn't be particularly long.
39 HIS HONOUR: Yes, I'll wait for that now. I need to tell Mr Hassan, Mr Botros, the consequence of failing to meet the recognisance, to be of good behaviour.
40 MR BOTROS: Yes, Your Honour.
41 HIS HONOUR: Yes, if you'd listen to this now.
42 It will mean if you don't comply with it, and the obligation is to be of good behaviour over the period, you'll be brought back before me. Isn't that right, Mr Botros? And I would need to resentence in accordance with that?
43 MR BOTROS: Yes, Your Honour. It's slightly different. There's no option to resentence. He would need to serve the balance of the period.
44 HIS HONOUR: I see. I see.
45 MR BOTROS: There are other options with those - - -
46 HIS HONOUR: And it's a mandatory, is it?
47 MR BOTROS: There are other options: the imposition of a fine, the imposition of a community corrections order.
48 HIS HONOUR: You'll be brought back and dealt with again and the prospect may well be or would be that you'd serve the whole period.
49 MR BOTROS: Yes, Your Honour. Recognisance is being sent through to your associate now.
50
HIS HONOUR: All right. Good. Thank you. And if you can print that out for me and I'll sign it when it arrives. We live in lucky times because I can
- looking back I can remember when all this had to be done by hand and we had to wait for two or three minutes until that happened.
51
When you're formally sentenced I'll allow you to speak to your wife
briefly - - -
52 OFFENDER: Thank you.
53 HIS HONOUR: - - - but it will have to be for a short period. You can say what you want to say then.
54 OFFENDER: Thank you.
55 HIS HONOUR: I will just read it. Stand up. I'll read it out. I've formally sentenced you in terms of the custodial part. The recognisance release order states as follows: the court orders the release of the defendant under the relevant paragraph of the Commonwealth Crimes Act after serving 14 months of the term of imprisonment upon you giving security with recognisance of $5,000. You don't have to provide the money now. It's forfeited if you don't comply with the recognisance. The condition is that you be of good behaviour for a period of two years. You understand that and you understand the consequence of not complying?
56 OFFENDER: Yes, I do.
57 HIS HONOUR: Yes. All right. Well, I'll get you to sign it now. Thank you. Well, that can be given to Mr Hassan and he can take that with his materials. And copies will be given to the representatives. Now, that's all I need to do or say?
58 MR BOTROS: Yes, that's correct.
59 HIS HONOUR: Thank you for your assistance during the trial and plea.
60 MR BOTROS: Thank you, Your Honour.
61
HIS HONOUR: Thank you for your assistance, Ms Garde‑Wilson.
Duas Mohamed, you may briefly speak to him now. It has to be brief, all right, and then he'll be taken into custody. Thank you. Mr Hassan can be taken into custody now. Thank you.
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