Director of Public Prosecutions v Jirjees

[2020] VCC 1637

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02032

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARLOS JIRJEES

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2020
DATE OF SENTENCE:	12 October 2020
CASE MAY BE CITED AS:	DPP v Jirjees
MEDIUM NEUTRAL CITATION:	[2020] VCC 1637

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:R v Lamella [2014] NSWCCA 122; CDPP v Afiouny [2014] NSWCCA 176; Merhi v R [2019] NSWCCA 322; R v Tae [2005] NSWCCA 29

Sentence:20 months imprisonment – immediate released on recognisance release order – recognisance of $500 – to be of good behaviour for 3 years

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr J. Robins	Commonwealth Director of Public Prosecutions
For the Accused	Mr C. Mandy SC	Melasecca Kelly & Zayler

HIS HONOUR:

1Carlos Jirjees, you have pleaded guilty to the offence of bribery of a Commonwealth public official, which carries a maximum penalty of 10 years' imprisonment.

2You have no prior convictions.

3The Crown tendered the Prosecution Opening for Plea as Exhibit A.  A summary of your offending is as follows.

4On 28 April 2017, Damien McInerney, an Australian Border Force officer employed by the Department of Home Affairs, was investigating a case concerning multiple importations of molasses tobacco totalling 1,530 kilograms.  Mr McInerney confirmed that the same customs broker was used for all importations and that you were the importer.  The imports were in the name of your wife, your business and several of your friends.

5Following the investigation and a record of interview, four Infringement Notice Scheme Notices were issued on 22 June 2017 for making false declarations, with the notices being issued to you, your wife and two of your friends.  The notices imposed fines totalling $10,000.  After these notices were issued
Mr McInerney contacted you on multiple occasions, reminding you to pay the penalties.  You eventually paid these notices on 26 November 2018 and advised Mr McInerney of such.

6On 17 April 2019 you contacted Mr McInerney, asking him to meet with you for some discussion.  You arranged to meet at the Carnegie Railway Station on
1 May 2019.

7On 1 May 2019 Mr McInerney and another ABF officer met you at the Carnegie Railway Station, as organised.  Both men attended in their capacity as on-duty ABF officers and the meeting was recorded.  At the meeting:

·   You told the officers you wanted to enter into a molasses tobacco importation business, which would avoid paying the relevant duties;

·   You indicated you would only work with Mr McInerney;

·   You said you needed Mr McInerney to be involved due to issues that arise at Customs when clearing tobacco;

·   You told Mr McInerney that the two of you would 'make money' in return for him helping you;

·   You proposed Mr McInerney would run the Customs clearance side of the scheme;

·   You told Mr McInerney that he would dictate the amount of tobacco that could be cleared at any time, suggesting that whatever he told you, you would import;

·   Overall, you proposed importing 200 to 250 kilograms of molasses tobacco per week, which you would purchase for around $40 to $50 US dollars per kilogram and sell at around $150 to $170 Australian dollars per kilogram;

·   You spoke of having contacts to sell to and your ability to distribute the tobacco anywhere after it came into Melbourne, and indicated that you could source the tobacco from all over the world including Thailand, Indonesia and Vietnam;

·   You indicated finding a broker was 'not a problem' and you could use a broker suggested by Mr McInerney if he desired;

·   You described the arrangement as ongoing and said you would come to an agreement with Mr McInerney as to how much money he would be paid;

·   You said you were nervous meeting with Mr McInerney and the other ABF officer, as you knew they were 'pretty high' at the ABF; and

·   Finally, you indicated you wanted to run this business as you had lost a lot of money over the past few years.

8Following this meeting, Mr McInerney reported the incident to his superiors. 
Mr McInerney had no further contact with you. On 17 July 2019 you were arrested and taken to the Australian Federal Police office in Melbourne, where you gave a no comment record of interview.

9Given the quantity of tobacco you indicated you were seeking to import (being about 200 to 250 kilograms per week), the ABF estimates the excise duty payable, which you were seeking to avoid, would have been between approximately $218,000 up to $272,500, plus 10% GST per week.

10You pleaded guilty to these offences at the committal mention on 9 October 2019.  I was told the matter was originally listed for plea in April of this year but adjourned due to the COVID-19 pandemic lockdown.

11I now turn to consider the objective seriousness of, and your moral culpability for, your offending.

12The offence of offering a bribe to a Commonwealth public official is, by its nature, a serious offence.  The maximum penalty of 10 years' imprisonment emphasises this.

13The crime has been considered in a number of cases.  It was defined as a serious crime in the case of Lamella, where it was observed that Australian border security depends on the integrity of its Customs officers, who are 'the sentinels of the system'.  The honesty and integrity of Mr McInerney was crucial to the detection of this crime.

14Bribery and corruption of public officials is an anathema to the rule of law and good government.

15In this case, you proposed the bribe to the Commonwealth official as part of a wider plan of criminal conduct – that is, to ensure the evasion of the payment of duties on imported tobacco products.  You proposed an ongoing illicit relationship where the Commonwealth official would himself become an integral player in your proposed serious ongoing criminal conduct.

16Moreover, your crime was entirely financially motivated and you were proposing to play for high stakes.  As I have referred to in the summary of your offending, with proposed imports of over 200 kilograms of tobacco per week, you sought to evade between approximately $218,000 to $270,000 in excise duty per week, with high profits expected on the sale of those products on top of that.

17There was undoubtedly a degree of planning and forethought in your criminal offending.  You planned the meeting with Mr McInerney and you chose a target with whom you were familiar.  You chose to exploit what you believed was a friendship offered by Mr McInerney, and in this respect I am referring to your description of your relationship with Mr McInerney in your interview with psychologist Luke Armstrong.

18There are, however, other factors by which the seriousness of your offending must be assessed:

·First, no money or benefit was actually paid;

·Second, no money or benefit was produced or even specified;

·Third, you did not propose a follow-up meeting;

·Fourth, in fact, there was no follow-up contact or conduct undertaken by you.  Put another way, after you left the meeting on 1 May 2019 you took no further step to further your offending before you were arrested on 17 July 2019; and

·Finally, it is implicit from what I have said that you did not engage in the proposed wider criminal conduct of evading excise duty, as there were no further importations.

19You told Mr Armstrong that after your offending on 1 May 2019 you realised that your offer to Mr McInerney was 'not a good idea'.  You told Mr Armstrong that you spoke to a friend and realised that you had blurred the boundaries between the very different cultures of Australia and Iraq.  You stated that it was because of that realisation that you did not contact Mr McInerney again.

20I was provided with other decided cases on the charge of bribery of a Commonwealth public official to assist me in determining the seriousness of your offending and to give me some guidance by providing the sentences imposed in those cases.

21In the case of Afiouny, seven payments totalling approximately $350,000 were made in an effort to avoid approximately $25 million in excise duties in relation to about 30 million cigarettes and in excess of 35,000 kilograms of tobacco.  The offender offered a Customs official a payment of $100,000 for each cleared container of the goods.  The offender in that case had previously been fined $1.75 million in respect to non-payment of excise duties.  On appeal, the New South Wales Court of Appeal increased the offender's sentence to a term of five years with three years and six months to serve.

22In the case of Merhi the offender was a former ABF officer working for the New South Wales police at the time of her offending.  She provided information to a syndicate involved in the illicit importation of tobacco and delivered payments in an effort to enable the evasion of in excess of $6 million of excise duty.  In that case the Court of Appeal considered that there was a considerable breach of trust arising from the nature of the offender's employment.  The offender was sentenced to a term of four years six months' imprisonment with two years six months to serve.

23Finally, the Commonwealth DPP provided me with the case of Tae.  In that case the offender paid bribes on 22 occasions to public officials in order to obtain immigration visas.  The court observed that the offender's conduct amounted to a course of conduct.  His offending was somewhat mitigated by the fact that he had made an offer to assist the prosecution of others in the future.  The offender was sentenced to a term of two years and two months with release after serving one year and four months.

24I can only conclude that your offending is not as objectively serious as any of those matters for the reasons I have already outlined.

25I consider your moral culpability to be high.  There was no one else involved in your scheme.  You are not only the principal, but you must bear sole responsibility for your actions.

26I have noted your explanation to Mr Armstrong – that is that you, in effect, came from a culture where bribery was the norm.  You told Mr Armstrong that after years of war and strife, paying bribes to officials was inevitable to complete any task involving an interaction with public or regulatory bodies in Iraq.  In fact, you told Mr Armstrong that whilst 'bribery was a normal part of Middle Eastern life', after the defeat and break down of Iraq you witnessed an increasing emergence of accompanying violence, including kidnapping and murder.

27As I said to Mr Mandy, and he accepted, I do not however accept that after 13 years of residency in Australia you considered that corruption and bribery of public officials is part of everyday life in this country, or a necessary part of doing business here.  In fact, I am confident that in your time in Australia you would be very familiar with the fact that getting a driver's licence, running a cafe, owning a bakery business – in fact, any dealing with regulatory, local, State or Commonwealth officials – could only stand in stark contrast to your experience in your country of birth.

28In this way, I do not accept for a moment that your moral culpability was in any way influenced by your upbringing, or by any misunderstanding that corruption and bribery is a necessary part of everyday life in Australia. I emphasise again Mr Mandy SC expressly disavowed any reliance on this as a line of mitigation.

29I also take into account the fact that after the issue of the four infringement notices in relation to the payment of the applicable duties on the already imported tobacco products you were not dissuaded from further conduct, attempting to avoid the payment of applicable duties in the future importing of tobacco.

30Your offending must be met by principles of general deterrence, specific deterrence and adequate punishment.

31I now turn to consider your personal circumstances.

32You are 36 years old and you were born on 27 October 1983.

33Much of your personal history is taken from the psychological assessment of Mr Armstrong, provided as Exhibit 3 on the plea.

34You were born in Baghdad.  For the first eight years of your life your only experience was that of war.  Your uncle was a soldier at this time.  He simply disappeared in the course of the war, leaving your family - and particularly your grandfather - grieving and uncertain of his fate.

35During 1991 your primary school was shut down as a consequence of the continuing war and you recall having no electricity, water and very minimal food.  Your family fled to the north of the country for six months, where you indicate the bombing could still be heard but was more distant.  The conditions you lived in were very difficult.  The surroundings were cramped, you had sleep problems and you saw your own relatives fighting over food.

36Mr Armstrong indicates your attempt to downplay the impact of this period of your life has led to what he called a 'cavalier', or more appropriately, a detached approach to life which has followed you to this day.

37Your father was a factory worker and a heavy drinker.  Your father was, at times, both physically and emotionally abusive, and you recall being hit in the face by him a number of times.  Your relationship with your father is distant but you indicate you still love him.  Your mother was strict, but otherwise fair, and you had a closer relationship with her.

38You left school at the end of Year 8, as you needed to seek employment to support your family.  You worked as an apprentice in your uncle's barber shop for five years.  You worked as a taxi driver until you were drafted into the Iraq Army just prior to the 2003 Iraq-Kuwait invasion.

39After a period of basic training you were stationed in the north of Iraq as a radio operator.  After the war you returned home to your family, however the experiences of the war remained with you.  You described to Mr Armstrong the terror of bombings you experienced and witnessing the loss of friends and other soldiers around you from bombs.

40You reported to Mr Armstrong that bribery was a normal part of life for you in the Middle East and it became a bigger feature following the war.  To get anything done, such as getting documents provided or licences, you would need to pay officials.  You witnessed an increase in bribery, as well as an increasing emergence of ethnic and sectarian violence in your country.  As a result of the invasion of your country and the subsequent social breakdown, you lost your trust in the government.

41At 22 you decided to leave Iraq.  Your first attempt led you to Syria, however you were compelled to return home following an incident where your boss and fellow employees were kidnapped back in Iraq.  Your second attempt led you to Australia in about 2006, where you secured through a female an engagement visa.  Although that relationship broke down, you secured a permanent visa to reside in Australia.

42You lived below the poverty line for a number of years in Australia before finding steady employment.  You worked as a chicken harvester for three years before losing that job in the global financial crisis.  You saved money over time and in 2012 you opened a café/bakery in Murrumbeena.  During the five years that you ran this café you made several contacts in the tobacco industry, and the café offered shisha.  This business closed around two weeks before this offending.

43You married your wife, Vanessa, in 2015, and together you have a son, Noah, who is four years old.  I am told Vanessa works at a bank.

44You became an Australian citizen in 2013.

45After you were charged with this offending, and with the onset of the widespread lockdowns affecting businesses through Victoria and metropolitan Melbourne through much of 2020 due to the onset of the COVID-19 pandemic, you have remained unemployed.  I note that you now have, however, an offer of a job to start packing water bottles in a week or so's time.

46I have read the two reports of Luke Armstrong to which I have already extensively referred.  Mr Armstrong saw you for four and a half hours on
25 March 2020 and one and a half hours on 6 October 2020.

47As I have stated, Mr Armstrong took a detailed history from you over the two sessions.  He concludes that you do not qualify as meeting the DSM-V criteria for post-traumatic stress disorder (PTSD), but that you do present with significant features, including:

·exposure to actual death;

·distressing memories;

·persistent and exaggerated negative beliefs;

·feelings of detachment and estrangement; and

·sleep disturbance.

48Further, Mr Armstrong concludes that you do not fulfil the criteria for a formal diagnosis of a mild intellectual disability, but that your current cognitive and adaptive functioning is within the range of a mild to borderline intellectual disability with the following features:

·a limited understanding of risk in social situations;

·immature social judgment;

·you are at risk of manipulation or exploitation by others;

·you have concrete and immature communication skills, conversation and language presentations in social interactions;

·you have impaired planning, strategizing, priority setting and cognitive flexibility;

·your short-term memory is poor and you have poor academic skills; and

·you have a concrete approach to problem-solving.

49Mr Armstrong states: 'Corruption was a normal part of life at every bureaucratic level of government.  Your client's naivety, immaturity and gullibility, all features of an individual with very low intelligence, blurred his judgment at this time' – that is, the time of this offending. Mr Armstrong concludes that you are suffering from an adjustment disorder with depressed mood with residual features of PTSD.  He considers that the resolution of this matter and future employment will likely see an improvement in the disorder.

50I have already stated that I do not accept that based on your experience in your country of birth that you automatically concluded that corruption was part of doing business in Australian society.  Again, as I have already outlined, you had experience in business and everyday life with interactions with bureaucracy for over 13 years before you committed this crime.

51Moreover, you had engaged in significant previous transactions, importing over 1,500 kilograms of molasses tobacco.  It must have been apparent to you from that previous transaction, and your prevarication in payment of the excise duties owing, that the importation of tobacco into Australia is a venture of at least a little bit of complexity.  You were not prevailed upon.  You did not simply 'fall into' your criminal offending.  It took some thought and complexity on your part.

52In this way, I do not consider the existence of either symptoms of PTSD or the apparent deficits in your cognitive functioning may be used to moderate your moral culpability for your offending, or to moderate the principles of general or specific deterrence.

53Mr Armstrong reports that you fully recognise the wrongfulness of your conduct and he concludes that you are a low risk of re-offending.  He reports that you have remained consistently candid in your answers to him in the interview.

54It is of some concern that you did not take up Mr Armstrong's suggestion made in March that you need professional mental health service intervention.  I do accept as a function of your PTSD that you did not seek mental health treatment because, at the moment, you believe that there are people in far greater need of assistance than yourself.  It appears that you now fully accept that you must seek and receive psychological treatment in order to address the psychological difficulties which at least in some part contributed to your offending.

55Mr Mandy SC examined in turn the factors set out in s.16A Crimes Act 1914 and submitted that the following principal matters mitigate the sentence I should impose upon you:

·First, that your plea of guilty was made at the earliest opportunity and is attended by remorse and insight;

·Second, remorse and insight can be seen through the fact that you did not continue to offend after the conversation on 1 May 2019.  Thereafter, you demonstrated insight into your observations that you made to
Mr Armstrong about your offending;

·Third, Mr Mandy submits that your prospects for rehabilitation are very good.  You are 36 and have no prior convictions.  He submits that the criminal justice process has had a significant deterring effect on you.  Mr Mandy also relies on Mr Armstrong's conclusions as to the likelihood that you will not re-offend;

·Four, he submitted that the first 22 years of your life were marked by the disadvantage, brutality, disruption and trauma of living in the epicentre of a war zone.  Thereafter, you have lived a simple and hard-working life in Australia and you now have a young family;

·Five, Mr Mandy concedes that general deterrence is a dominant sentencing principle to be applied in this case and that specific deterrence has at least a role to play.  Nevertheless, you present with very good prospects for your rehabilitation; and

·Finally, Mr Mandy submits that upon an objective assessment of your offending a period of imprisonment is not necessary.  There is little apposite comparison with the cases provided by the CDPP – each of which was objectively far more serious than yours.  Accordingly, you are to be sentenced for offending constituted by one conversation, when no money changed hands and no amount was discussed or agreed.  Your plan to import tobacco was also unclear.

56Mr Robins, who prosecuted this matter on behalf of the Commonwealth, carefully outlined the factors set out in s.16A of the Crimes Act to which I must have regard when passing sentence for this offence:

·First, he submitted I must impose a sentence that is of appropriate severity for the offending; and

·Second, (cherry picking through s.16A), he submitted the following factors were relevant to my consideration:

othe nature and circumstances of the offending;

othe degree to which you have shown contrition;

othe plea of guilty, the timing of the plea and the benefit of the plea to the community;

owhether or not you co-operated with authorities in the investigation of the offence;

othe need for general and specific deterrence;

othe need to ensure that you are adequately punished for the offence;

oyour character, antecedents, age, means and physical and/or mental conditions. Your mental condition was emphasised in the course of his submissions; and

ofinally, he submitted I must have regard to your prospects for your rehabilitation.

57Mr Robins emphasised in the course of his submissions that under s.17A Crimes Act a custodial sentence is a sentence of last resort.  Although the Commonwealth submitted that a sentence of imprisonment is warranted in the circumstances of your offending, Mr Robins submitted that the question of whether or not it was to be served immediately was a matter for me.

58In my view, the sentencing objectives of this court do require me to impose a period of imprisonment.  The message of deterrence must be sent to others that those who seek to corrupt public officials to deliberately ignore, or to actively assist in criminal activity, must face a period of imprisonment.

59Furthermore, your sentence must carry a measure of specific deterrence.  It seems that you were determined not to want to pay excise duty on your imports of tobacco.

60Having come to that conclusion that imprisonment is warranted I cannot, however, ignore my assessment of the objective seriousness of your offending, which I have outlined earlier.  I also cannot ignore your personal circumstances, your background and upbringing - although I emphasise that these matters play a much lesser role in the sentencing consideration.  In the end, I also consider that you do have very good prospects for your rehabilitation.  You have a solid work history in this country and you have the solid pro-social support of your wife and child.  In this way, I look at the determination you displayed to get to this country to make a better life for yourself and to the fact that, until the point of your prevarication on paying excise duties, you had worked hard through adversity to achieve these objectives.

61After considering the whole of the circumstances of your offending I have decided that whilst a period of imprisonment is appropriate you should be offered the opportunity for immediate release on a recognisance release order.  To put this in plain language, Mr Jirjees, I am going to sentence you to a period of imprisonment but you will not be required to serve it so long as you are of good behaviour. 

62So the sentence that I propose is a sentence of 20 months' imprisonment.  The sentence commences today.  You are to be released forthwith on a recognisance release order in the sum of $500 to be of good behaviour for a period of three years.

63Now, I have to get that order prepared, Mr Jirjees.  Mr Robins, thank you - you've come prepared, I see?

64MR ROBINS:  Yes.

65HIS HONOUR:  I'll just give you a moment.

66MR ROBINS:  Yes.

67HIS HONOUR:  Mr Mandy, I don't think I'm in a position where I can show it to you immediately, but if there's any difficulties then I'll give you the liberty to apply.

68MR MANDY:  I think I was muted, Your Honour.  I was saying I trust those at the Bar table and Your Honour.

69HIS HONOUR:  Thanks.  All right.

70Now, Mr Jirjees, I just want to – I'm going to get you to sign this order in a moment, but I just want to make sure that you understand what the order is. 

71What I've done is I've sentenced you to a period of gaol for 20 months, okay?  But you do not have to serve the 20 months, you do not go to gaol today.  Rather, you must sign a promise to be of good behaviour for three years from today.  The price of the promise is $500.  So you do not have to pay the $500 today, but if you breach the order you must pay $500 and then you will come back before me on this matter and you will have to serve the period of the 20 months.  Do you understand the effect of the order?

72OFFENDER:  Yes, I do.

73HIS HONOUR:  Okay.  Mr Jirjees, if you'd be good enough to just come down to the end of the Bar table here?  Thanks, Mr Prison Officer.  I'll hand this down.  Thank you.  All right, thank you.  Just take a seat there for a moment, Mr Jirjees.  All right.

74So, Mr Georgiou, anything from your perspective?  Are you satisfied that
Mr Jirjees understands the order?

75MR GEORGIOU:  Yes, I am, Your Honour.

76HIS HONOUR:  Mr Mandy, is there anything you need to raise?

77MR MANDY:  No.  Thank you, Your Honour.

78HIS HONOUR:  Mr Robins, anything from the Commonwealth's point of view?

79MR ROBINS:  Nothing, Your Honour.

80… Thanks, Mr Jirjees.  You're now free to go.

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