Director of Public Prosecutions v Majid

[2020] VCC 1222

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-18-02477

THE QUEEN

v

MAJID JABAL

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JUDGE:	O'Connell
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2020
DATE OF SENTENCE:	14 August 2020
CASE MAY BE CITED AS:	DPP v Majid
MEDIUM NEUTRAL CITATION:	[2020] VCC 1222

REASON FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Importation of tobacco with the intention of defrauding the revenue; 3245 kilograms of molasses tobacco concealed in a shipping container; $2.75 million worth of duties and taxes avoided; Offender previously received official warning; Plea of guilty; Remorse; Contribution to the Australian-Iraqi community; Imprisonment more burdensome due to history of trauma; COVID-19 sentencing considerations; General deterrence; Specific deterrence.

Legislation Cited:         Customs Act 1901 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic).

Cases Cited:Barakat v DPP (Cth) [2020] VSCA 185; R v Medalian [2019] SASCFC 40; R v Saleh [2015] NSWCCA 299; R v Zhang [2017] SASCFC 5; Hussein v The Queen [2016] VSCA 212.

Sentence:  2 years and 9 months’ imprisonment, to be released subject to RRO after service of 15 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms S. Holmes	Commonwealth Director of Public Prosecutions
For the Accused	Mr J. McQuillen	Stary Norton Halphen

HIS HONOUR:

Introduction

1Majid Jabal, you have pleaded guilty to one charge that on 23 July 2017 you imported tobacco products with the intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901 and s 11.2A of the Criminal Code (Cth).

2At the time of the importation, molasses tobacco attracted duty at the rate of $771.60 per kilogram. You were responsible for importing 3245 kg of molasses tobacco which, if accurately declared, would have accrued $2,754,226.20 in duties and taxes payable to the Commonwealth.

The importation of the tobacco

3On 23 July 2017, a 12 metre long shipping container numbered TGHU6539363 arrived at Webb Dock, Melbourne. The import declaration form for the container provided the following details:

a. Importer: AMSTERDAM IMPORT PTY LTD

b. Delivery Address: 343 Bell Street, Preston, VIC 3072

c. Origin country: United Arab Emirates

d. Goods description: 4MM Clear Float Guardian Glass.

4On 1 August 2017, Australian Border Force (‘ABF’) officers examined the container. It was x-rayed and anomalies at the rear of the container were identified. Further examination revealed the container had been manipulated with a false wall concealing a 1.2 metre void at the rear. The large quantity of molasses tobacco was located within that void and was identified as ‘Al Fakher’ brand molasses tobacco comprising 540 cartons and five loose packets. The main section of the container contained glass of a type used in residential construction.

5ASIC records showed that the sole director of Amsterdam Import Pty Ltd was Ahmed Al-Shammari, also known as Khalid Zabid. Mr Al-Shammari was originally jointly charged with this offending, however as I will explain, his charge was discontinued during pre-trial argument in February this year, after you pleaded guilty to this charge.

Interview with Customs – 28 March 2017

6On 28 March 2017, you were subjected to an examination of your baggage when you returned to Melbourne on a flight from Jakarta, Indonesia. You told ABF officers that you were a partner in a Shisha Café located in Bell Street, Preston at the rear of a car wash. You said you had been running the business for about nine months and that you purchased molasses tobacco in Melbourne rather than Sydney because it was too expensive.

Arranging the importation

7On 16 May 2017, a person identifying themselves as ‘Amjad’ contacted Mr Samir Alobadi of BNS Accounting Services requesting assistance in establishing an import/export company in the name of Amsterdam Import. The call to Mr Alobadi was received from your mobile phone number and email addresses linked to you were also provided. The name (Khalid Zabid) and address provided for the purposes of registration of the business were Mr Al-Shammari’s.

8In early July 2017, a person identifying themselves as ‘Maj’ contacted a customs broker, Mr Lei Chen, from Success Logistics requesting that he arrange clearance for container TGHU6539363. On 17 July 2017, you attended at the offices of Success Logistics with Ahmed Daham. Mr Daham acted as interpreter for you. Mr Chen was provided with a bill of lading, a packing declaration, an invoice packing list for Amsterdam Import, a delivery authority and an authority to deal letter signed by Khalid Zabid. A payment of $3827.42 in cash was subsequently made to Success Logistics as a retainer for their services. Mr Chen was told via email that payment to the supplier of the goods in the container was made by cash in person.

9On 25 September 2017, you and Mr Daham again attended at Mr Chen’s office, enquiring as to why the container had not been cleared by customs. CCTV footage confirms that you attended on this day. A call was also made to ABF by a person identifying themselves as Khalid Zabid using Mr Daham’s mobile phone enquiring about the status of the container.

10On 16 October 2017, Mr Chen received an email advising him that ‘Maj’ was no longer taking the container and that he would like a refund.

Execution of search warrant and arrest

11On 21 March 2018, a search warrant was executed at your house in Thomastown. Among the items located were two Apple iPhones and the clothing which you wore when you attended Success Logistics on 25 September 2017.

12You were then arrested and interviewed. During that interview you told investigators that Amsterdam Import was Mr Al-Shammari’s company. You said that you had agreed to share the costs of importing glass for use in residential developments and that you had sourced that material from a friend in the United Arab Emirates. You said that half of the money paid to the customs broker came from Ahmed Al Absawi who was the owner of the car wash and Shisha Café on Bell Street. You stated that Mr Daham had nothing to do with the importation of the glass and only acted as an interpreter. You also said that you had lied to ABF officers back in March 2017 and that you were not a partner in the Shisha Café but that you occasionally went there, though not often because you preferred to smoke cigarettes rather than shisha.

13On 19 April 2018, ABF investigators executed a search warrant at the Shisha Café at 434 Bell Street, Preston. The car wash occupied the front outdoor area of the premises however, the main building which had housed the Shisha Café was no longer operational. A number of open and partially used ‘Al-Fakher’ molasses tobacco packets and small containers were seized. One of the owners of the car wash provided a witness statement to investigators indicating that the previous owner of the car wash was Ali Al Absawi and that the Shisha Café had stopped operating in January 2018. He stated that he believed the owner was a person by the name of Ahmed.

14The ‘Ahmed’ referred to by the witness was Mr Al-Shammari, who was running the Shisha Café at the time of the offending. As I have indicated, Mr Al-Shammari was originally jointly charged with this offending. However, when you entered your plea of guilty during pre-trial argument, you also made a ‘can say’ statement to the prosecution indicating that Mr Al-Shammari was unaware that the importation included tobacco. The prosecution accepted your explanation and discontinued the charges against Mr Al-Shammari.

Procedural history

15You were arrested, interviewed and charged with this offence on 21 March 2018. You were discharged at contested committal proceedings in the Melbourne Magistrates’ Court on 19 September 2018. However, you were directly indicted to the County Court to be tried jointly with Mr Al-Shammari and for that purpose you were brought before this Court on 20 December 2018.

16On 17 February 2020, the matter came on for trial and pre-trial argument. After some legal argument and a ruling concerning coincidence evidence, you entered a plea of guilty on 19 February 2020.  Your plea hearing was then listed for 31 July 2020. As I have already indicated, the prosecution at this time discontinued the charge against Mr Al-Shammari.

Personal history

17Turning now to your personal history, you were born in Kuwait to parents of Iraqi origin on 2 January 1968 and are now 52 years of age. You were 49 when you committed this offence.

18You are the eldest of 10 children, eight of whom survive. You appear to have grown up in a happy environment and were not subjected to family violence or other abuse. Your father worked as a police officer and your mother worked in the home.

19You completed your schooling in Kuwait and reached year ten level. You are literate in your first language, Arabic. You say that you were a reasonably good student at school and didn't experience any particular disciplinary or social problems. On leaving school you trained as a police officer and once you commenced you rapidly progressed to the rank of sergeant.

20When Kuwait was invaded you were apparently targeted because of your work as a police officer and your Iraqi background. You were imprisoned for about six to eight months and experienced regular beatings and torture. The Red Cross negotiated your release after which you were sent to Iraq, however you were there regarded with some suspicion because of your Kuwaiti background and you were imprisoned for a second time for some months. That period of imprisonment also involved further mistreatment and torture. The Red Cross again negotiated your release and you were permitted to travel to Jordan where you remained for some time. A letter from the International Committee of the Red Cross of 23 March 2020, provided after the plea hearing, confirms that you were in prison in 1991 and 1992.

21You came to Australia from Jordan in 1998, becoming an Australian citizen in November 2000.

22You obtained some work briefly as a farm worker but you were unable to sustain employment because of some severe psychiatric and substance abuse problems. You were placed on a disability support pension and have remained so for many years.

23In 2006, you met and commenced a relationship with your current partner Ms McLatchey. There are two children of that relationship, sons aged 12 and 11. It seems the relationship has experienced difficulties mainly because of your mental health and substance abuse problems. Ms McLatchey however has  provided a reference on your behalf which confirms her belief in your commitment to her and the children.

24For the purposes of these proceedings you were comprehensively assessed by Mr Patrick Newton, an experienced clinical and forensic psychologist, who provided a report of 23 July 2020. Mr Newton documents what has been for you a long history of psychological problems for which you are managed with antipsychotic and antidepressant medication. You have a history of heavy drinking and heavy consumption of cannabis, but you told Mr Newton that you ceased all drug use two years ago.

25Mr Newton stated:

The most salient aspect of Mr Jabal’s mental state when I assessed him was his anxiety. This can be divided into three key components: 1) reactive anxiety as a result of this prosecution; 2) concern for his relationship and children; and 3) residual symptoms of traumatic anxiety which have their genesis in his repeated exposure to trauma and abuse.

26Understandably, you are particularly concerned as to the impact incarceration will likely have on your partner and your children. Mr Newton further states:

Underpinning Mr Jabal’s anxiety are residual symptoms of traumatic anxiety. These have their genesis in his repeated experiences of trauma and mistreatment within the Kuwaiti and Iraqi prison systems. These experiences were not only distressing in their own right but they also undermined his sense of security in the world more broadly. In combination, they have left Mr Jabal with deep-seated feelings of shame, distress and powerlessness. He is prone to view the world as a threatening place, and he has chronically lacked confidence in both his own ability to take care of himself and the ability of the state to treat him with respect.

27Mr Newton formed the view that the prospect of a further term of imprisonment appears to have rekindled a range of traumatic memories. He anticipates that this will render any time in custody more difficult than is typically the case for an individual who does not have a history of trauma. Whilst your current symptoms were not sufficient to meet the diagnosis of post-traumatic stress disorder, they were nevertheless significant and merit the diagnosis of ‘post-traumatic stress disorder in partial remission’.

28Mr Newton referred to some past reports of treating psychiatrists that identify some history of psychosis, major depression and generalised psychological instability. He assessed those conditions to be in partial remission. He was firmly of the view that you require relatively intense support during the initial period of any time in custody, and that you would benefit from a significant period of supervision in the community to ensure that you are monitored and supported appropriately.

29On the plea, Mr McQuillan called oral character evidence on your behalf. Mr Hamid Abdullah explained that he had known you since 1991 and that his father and your father had been close friends in the police force. Mr Abdullah had worked as an interpreter for Australian armed forces in the Middle East and when he migrated to Australia in 2008, he described you as the first person who helped him. He described you as a person who had been very active on a committee of Iraqi ex-patriates which had been set up to assist refugees from Iraq settle into the Australian community. He attested to the important role you play in mediating disputes between members of the Iraqi-Australian community. Indeed, there were a number of people from that community who attempted to attend court to support you and, if possible, give evidence, but could not do so because of the COVID-19 restrictions.

30Mr Abdullah’s evidence was important in my view in establishing that you are a person within the Iraqi-Australian community who has been respected and who has at times played a leadership role. His evidence was also confirmed by two written character references provided by Kassim Al Hamdani on behalf of the Alzahra Community Association and Mr Hamed Hamdy from the Australian Shia Muslim Assembly.

31You have some criminal history which I must take into account.

32On 6 January 2004, you were convicted and fined $2000 at the Heidelberg Magistrates’ Court for possession and use of a drug of dependence. I was told this matter related to the possession of steroids.

33On 28 May 2010, you were convicted and required to pay an aggregate fine of $500 for four charges of obtaining a financial advantage by deception. I was told this may have related to writing some cheques that could not be honoured, but you were unclear as to the detail.

34These matters have some limited relevance, but in my view should not greatly impact on the sentencing calculus.

35There is, however, another matter which is more pertinent. During pre-trial argument in February this year, the Crown made application to adduce coincidence evidence relating to a previous importation of 111 kilograms of ‘Al Fakher’ molasses tobacco. I ruled the evidence admissible and the circumstances associated with that alleged importation are set out in The Queen v Jabal (Ruling No. 1)[1] of 18 February 2020.

[1] VCC 1221.

36You were never charged with that importation and it is important to point out that you are therefore not to be punished for that importation. However, an investigator from the Organised Crime Branch of the investigations division of the ABF, Mr David Rees, wrote to you on 26 October 2016 in the following terms:

On 18 February 2016 a consignment addressed to Aussie T Pty Ltd, Epping, Victoria, 3076, arrived in Sydney.  The Australian Border Force (ABF) examined the consignment and located a quantity of 100 kilograms of molasses tobacco. 

Schedule 3 of the Customs Tariff Act 1995 specifies that tobacco, in the form of molasses, attracted a duty of $663.72 per kilogram. The importation of tobacco and tobacco related products into Australia with the intention of defrauding the revenue is an offence under section 233BABAD(1) of the Customs Act 1901. The maximum penalty for this offence is imprisonment for not more than 10 years, a fine not exceeding 5 times the duty that would have been payable, or where the Court cannot determine the amount of that duty, a penalty not exceeding 1,000 penalty units, or both.

…

It has been decided by the ABF that an official warning is to be given to you in this instance; however, you should be aware that it is deemed to be a serious offence to smuggle tobacco products into Australia with the intent to defraud the revenue. 

Please be informed that any similar offences committed by you in the future, which are deemed to be in breach of the Customs Act 1901 or other Commonwealth legislation, will be dealt with seriously and may result in prosecution action being initiated against you. Additionally, if further offences are committed by you, the matters for which you have received an official warning will also be considered for prosecution.

Please also note that a copy of this letter will be retained on file as evidence of an official warning having been issued.

37That official warning placed you on notice as to the seriousness of this kind of offending and the penalties that may be imposed. The fact that you committed this offence in spite of that warning, in my view, elevates the need to emphasise specific deterrence in your case.

Defence submissions

38Mr McQuillan submitted that your plea of guilty carried significant weight despite it being entered at a late stage. Its utilitarian benefit and the fact that you were prepared to accept sole responsibility for the offending and facilitate the course of justice he argued was indicative of remorse and merited a substantial reduction in the sentence that would otherwise be imposed.

39You have been on bail for just over three years and whilst you have contributed to some of that delay, it has nonetheless been punitive. Moreover, it was argued you have not reoffended and complied with your bail conditions, which suggests that your prospects for rehabilitation are good. You also enjoy the support of your family and the Iraqi-Australian community.

40Reliance was placed on Mr Newton’s opinion that your previous imprisonment in Kuwait and Iraq and the associated trauma will make imprisonment more burdensome. The sentencing considerations relevant to COVID-19, it was said, constitute additional hardship which was likely to exacerbate that burden.

41It was submitted that whilst a term of imprisonment may well be open, the sentence should be structured using a Recognizance Release Order (‘RRO’) to facilitate your release in the relatively short term.

Prosecution submissions

42On behalf of the Crown, Ms Holmes pointed to the objectives underlying the legislation under which you have been charged. It is directed to regulating what is a very dangerous product and was introduced as part of a suite of measures designed to reduce the incidence of smoking in Australia. The smuggling of tobacco undermines that objective by making cheap tobacco available in the community and evading any government inspection, testing or quality control.

43Fundamentally, this is an offence against the revenue. The potential rewards for engaging in offending of this kind may be great and the criminality can often be difficult to detect. Accordingly, significant penalties apply because of the need to provide a real disincentive to others tempted to offend in this way.

44Here, the amount in duties and taxes evaded was in the order of $2.75 million dollars. It was submitted that by any measure that was a very significant sum. It must be inferred that you would gain financially, although there is no direct evidence as to how much you sought to gain beyond that which was evaded.

45It was submitted you were the principal for the importation of this tobacco and that it was sophisticated and well planned, particularly with respect to the use of a company set up in an associate’s name, and in the use of a covering load of glass to conceal the tobacco.

46I did not take Ms Holmes to cavil with the submissions made on your behalf as to your subjective circumstances or with respect to Mr Newton's opinions about the difficulties you are likely to face in prison. It was nevertheless submitted that the appropriate sentence in this case was a term of imprisonment involving a head sentence and non-parole period.

Consideration

47The general sentencing principles for this type of offending are well settled. They were recently affirmed by Niall JA, with whom Priest and T Forrest JJA agreed, in Barakat v DPP (Cth)[2]. In reviewing the authorities, his Honour stated at [54] and [55]:

Because of the financial rewards that can be associated with offending of this kind (where the goods are subject to relatively high taxes and duty), the difficulty of detection and the erroneous view that offending of this kind is lower level order criminality or ‘victimless’, it is necessary to place emphasis on general deterrence. That remains so, even where the offender is otherwise of good character and unlikely to offend again. Relatedly, offending of this kind often involves, as it did in this case, premeditation and planning. There is the opportunity to reflect on the risk and reward equation. It is necessary that sentencing courts visit the offending with suitably stern sentences so as to deter those who might otherwise be attracted to the high returns fortified by the difficulty in detection.

A review of the authorities reveals the importance of general deterrence and that, as a result, custodial sentences generally are called for.

[2] [2020] VSCA 185.

48Ms Holmes also referred me to a number of other comparative cases[3] to which I have had regard.

[3]R v Medalian [2019] SASCFC 40; R v Saleh [2015] NSWCCA 299; R v Zhang [2017] SASCFC 5; and

Hussein v The Queen [2016] VSCA 212.

49The Crown submissions as to the nature and gravity of the offending must be accepted. You were the principal in a sophisticated criminal enterprise to evade $2.75 million in duties and taxes. It is true that there is no direct evidence as to what you stood to gain beyond the evasion of those taxes, but it can be readily inferred that you calculated that the risk you took in committing this offence was worth your while. That was so despite the official warning you had received in 2016.

50There are however, a number of important mitigating considerations.

51You still carry with you the trauma you experienced in jail in Kuwait and Iraq. It has undermined your psychological wellbeing and your quality of life ever since. The prospect of enduring further imprisonment, I accept, would be particularly burdensome for you.

52That prospect, I also accept, would be all the more acute because of the restrictions arising from the COVID-19 pandemic, particularly those as to quarantine, lack of visits and programs, and the anxiety associated with potential exposure to infection.

53In addition, despite your troubles, you have made a noteworthy contribution to the Iraqi-Australian community as Mr Abdullah’s evidence confirmed.

54Your plea does merit a substantial reduction in sentence despite its late entry. I accept this would not have been a straightforward trial and that the saving to the community by your plea was likely to be considerable. You also cooperated with the authorities in providing a ‘can say’ statement which facilitated the course of justice.[4]

[4] See Crimes Act 1914 (Cth), s 16A(2)(h).

55I am satisfied on the basis of your plea, your co-operation, the references and Mr Abdullah’s evidence, that you are remorseful for having engaged in this offending. You retain the support of your young family. The lengthy delay in resolving this matter has meant that you have lived in a state of uncertainty for the last three years and throughout that time you have not reoffended.

56Your prospects for rehabilitation appear in that context to be at least reasonable.

57Despite all of those matters in mitigation, it remains the case that offending of this kind will ordinarily result in custodial sentences and this case is no exception. That must be so in light of the large amount evaded and the principal role you played in the importation, despite being previously warned as to the consequences. However, making due allowance for the substantial matters in mitigation, the structure of that sentence will be fashioned so as to provide for your release at an earlier time than might otherwise be the case.

Sentence

58Taking all relevant matters into account, you will be sentenced as follows:

59On Charge 1, you will be convicted and sentenced to a term of imprisonment of 2 years and 9 months. I will direct that sentence is to commence today, 14 August 2020.

60I will further direct that you be released after the service of 15 months’ imprisonment, upon you entering into a recognizance in the sum of $3000 and that you comply with the condition to be of good behaviour for a period of 18 months.

61Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I will declare that but for your plea of guilty I would have sentenced you to a term of imprisonment of 4 years and would have fixed a non-parole period of 2 years and 6 months. I will cause that declaration to be noted in the records of the court.