Director of Public Prosecutions v Ratel
[2022] VCC 1988
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSMAN RATEL |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 15 November 2022 |
CASE MAY BE CITED AS: | DPP v Ratel |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1988 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S.P. Devlin | |
For the Accused | Mr C.T. Farrington |
HER HONOUR:
1Osman Ratel, you have pleaded guilty before me to one charge of importing tobacco products contrary to s233BABAD(1) of the Commonwealth Customs Act 1901 with the intention of defrauding the revenue. This offending took place between 9 and 13 May 2018.
2I will attach the full prosecution opening to my sentencing remarks, but in very short compass in April of 2018 you and your family travelled to Malaysia for a holiday. During that time you made contact with a lawful seller of molasses tobacco and made arrangements with him to purchase an amount of that tobacco and import it to Australia.
3The goods were imported by postal mail in plastic tubs in five consignments delivered between the dates that I have mentioned. On arrival however the tubs which were placed in boxes that were discovered by Australia Post to have leaked badly and required repacking. It was then that the contents of those tubs comprising 734 plastic tubs were discovered and authorities involved.
4Ultimately 730 kilograms of molasses tobacco was sent from Malaysia to Australia at your behest with the revenue ultimately evaded in the sum of $736,780.16. Eventually in June 2018 your premises were raided by police and relevant items were found implicating you in the importation of this tobacco, which was sent by over-the-counter postage to your brother’s address and in his name. Police at your home found five tubs containing reddish organic matter with the same appearance and smell as the material found in the tubs which had been retained by Australia Post.
5In a record of interview during the search you told police that you thought that what was being sent to you was detox food which you had decided to import to Australia for sale. I should have added that each of the tubs was labelled 'Nature’s detox super food, 100 per cent organic detox'. You also denied transferring money to anyone in Malaysia and said that the items in your home, that is the substances I have referred to, were not molasses tobacco. This was patently untrue.
6You were ultimately charged in September 2019 by summons. The matter proceeded to a committal mention in December 2019. A limited contested committal was held in October 2020, and then directions hearings on 17 February, 31 March, 10 May, 15 July, 6 August and 1 September and 13 October were all administratively adjourned throughout the pandemic restrictions.
7Eventually on 13 January of this year you underwent a sentencing indication and ultimately were arraigned and pleaded on 5 May 2022. The matter was not set down for a plea hearing until November. I am making a particular mention of the dates, because in my view there has been a considerable delay in this case.
8I now turn to your personal circumstances. You are aged 49. Your parents emigrated to Australia from Lebanon, but you were born here. You had two elder brothers and one younger brother. Your father died when you were 4 and you were thereafter raised by your mother who managed her four sons on her own working as a chef. You left school partway through Year 12 to take up a painting apprenticeship, which you completed. You then began your own painting business with your brother Mohammad which ran for five years until Mohammad unfortunately and tragically died of a heart condition when aged only 29. You then continued the business with another brother Abdul for a further eight years.
9You then went into business with your younger brother Kodah in the building and construction industry. This ultimately led to the establishment of a niche business whereby you installed internal window frames into large multi-storey complexes built by companies such as Multiplex, Probuild, Lendlease and Built. This was a very successful and lucrative business which at its height at the end of 2019 employed 23 to 25 workers. However, with the onset of COVID the business was badly hit and 75 per cent of the staff were laid off. Counsel informed me that business is now building up again.
10You married in 2001 and remained married to that partner for eight years. In that time your two eldest daughters aged 18 and 15 were born. Your 18-year-old daughter works in a café and is engaged to be married, and your 15-year-old is at secondary college. You see your daughters regularly. You pay child support, and indeed they were on holiday with you in Malaysia in 2018 when you made the decision that you did to import molasses tobacco.
11You married your second wife in 2012 in Lebanon. You have two children from that marriage, two daughters aged 9 and 7 who are both in primary school. You are also a stepfather to your wife's daughter from her first marriage. She is 20 and married with a young child and you have been extremely supportive of her and treated her as your own daughter. You are the sole breadwinner for your family.
12Your wife speaks little English. In 2016 as a learner driver she suffered a severe whiplash in a car accident while stationary at a red light when a car ran into the back of her vehicle. I received a wealth of medical material indicating that she continues to suffer from chronic pain in her neck and back, is unable to lift any heavy items, and that she has also developed accompanying anxiety and depression conditions.
13During COVID you undertook all the home schooling of your daughters as your wife's English was not sufficient for the task and she did not have the necessary computer skills to assist in that way. I received references from your GP, Dr Anthony Diamantaras attesting to the mental and physical difficulties suffered by your wife and the fact that you accompany her to all her appointments.
14You also undertake much of the housework and the shopping that your wife is unable to do. I received a psychological report from Dr Juliette Hooper who is your wife's psychologist also attesting to the development in your wife of a persistent depressive disorder, anxiety and symptoms of PTSD as a result of the accident.
15Your wife has since obtained her licence, but is reluctant to drive, although she can drive the children to school. According to Dr Diamantaras (although I received no formal psychological assessment to this effect) you have developed, in particular in the last 18 months to two years, an anxiety and depression disorder because of your concerns over these legal proceedings and the knowledge that you could well face a gaol sentence.
16You do have a prior criminal history. In 2001 you were placed on an adjournment without conviction for using and possessing cannabis. In 2004 you were sentenced by the County Court to a total effective sentence of two years and six months with a minimum term of 15 months for involvement in a hydroponic cannabis crop, and I have read the sentencing remarks of the judge of this court who dealt with you at that time. You have however not offended since.
17I received a number of references from friends attesting to your hard-working nature, your responsibility to your family and your general good character, whereby you contribute to various charities including Save the Children. As I have said you are the sole provider for your family.
18The great issue for you, Mr Ratel, is whether or not I should impose a custodial sentence. Your counsel in a very comprehensive plea submitted that I should deal with you by way of a non-custodial disposition. I have also had regard to a wide variety of Court of Criminal Appeal decisions in Victoria, South Australia, Western Australia, and New South Wales which were referred to me, all of which have dealt with persons who have committed the same offence as you.
19The maximum penalty for this offending was increased from two years to 10 years in 2012. Having regard to the second reading speech of the Federal Attorney-General at the time and comments made by various courts it is clear that evasion of taxes is a serious matter which is not a victimless crime. It is also clear and I must accept that general deterrence is a primary sentencing principle to which this court must have regard in dealing with you. I do accept the points made by your counsel on your behalf; that is that you have pleaded guilty which has a utilitarian value in normal times but is of significant value at a time when the court is catching up on a large backload of cases unheard during the pandemic. The authority of course for that proposition is Worboyes v R [2021] VSC 8169.
20I also accept you are remorseful for your offending, as was attested to by some of those who wrote a reference on your behalf. As I said at the outset, I also accept there has been a significant delay in this matter, notwithstanding that you had entered a plea of not guilty which somewhat lengthened proceedings. It is now four and a half years since the actual offending. You were not charged between May 2018 and 30 September 2019.
21As I have also said there has been no further offending, and I accept that this delay has resulted in additional suffering to you over a longer period of time with a particular anxiety as to the outcome of these proceedings. I accept that the fact that you have not offended means the issue of specific deterrence does not loom large in the sentencing exercise before me. I accept that you have good prospects of rehabilitation and are ordinarily a devoted father, and a hardworking and prosocial man. Therefore the issue of the need to protect the community is not a significant sentencing factor in my view.
22Your prior convictions although serious are old and dissimilar. It is 18 years since you have offended. I accept that any time in custody would be more onerous for you because of the anxieties that you would experience in relation to your family. I also accept that the conditions in gaol are more difficult as a result of the restrictions imposed due to the pandemic.
23I accept that your family would suffer hardship were you to be gaoled, and that because this is a Commonwealth matter according to the principles enunciated by the Court of Criminal Appeal in Rodgerson v R [2022] VSCA 154, this is a mitigating feature which I may take into account even if that hardship does not reach the exceptional standard described in Markovic [2010] 30 VR 589.
24However it is clear from all the authorities that I must sentence you to a term of imprisonment to be immediately served. I accept that this offending was relatively unsophisticated. It was easily traced to you. However, it did involve importation. You were the principal and only offender. There was a considerable quantity of molasses tobacco imported, although by comparison with the other cases to which I referred it does not fall at the higher end.
25This was also an importation carried out by you at a time when your business was thriving. You were making a significant income, so that the offending can only have been said to have been the result of greed. I ultimately must accept the prosecution's submission that I can only deal with you by way of a term of imprisonment to be immediately served. However, the amount of time you will serve is somewhat less than would otherwise be the case. In particular I take into account the delay in this matter.
26In Tsang, a decision of the South Australian Court of Appeal the following matters were set out to be taken into account when sentencing for tobacco smuggling. Firstly, the role of the offender, in particular whether the offender was a principal organiser, and that was certainly you. Secondly, the court must look at the sophistication of the offending. I do not find that the offending was particularly sophisticated. Thirdly, the period over which the offences were committed. This offending essentially was committed over a short period of time. Fourthly, the quantity of the tobacco imported and amount of duty evaded, whilst not insubstantial this did not fall at the higher end of other importations that have been dealt with by this court.
27Then there is the issue of whether the loss of revenue has been repaid. I do not regard this as relevant in your case, because the tobacco was in fact intercepted before any sale took place by you. Thus the tobacco has been recovered and essentially there has been no actual loss as a result.
28Another issue is whether the offending involved other illegalities such as the use of false identities. The only deceit that I can see by you was the name to which the tobacco was to be consigned, and that was the name of your brother and his address. As he lived next door to you, I do not regard this as a significant factor.
29The seventh matter a court should take into account is whether the offender was involved in the distribution and sale of tobacco products within Australia. As I have already stated the tobacco was intercepted before this could take place. Finally, the extent to which the offender gained financially from his offending. Again there was no financial advantage. Of course this is not to say that you would not have gone on to sell this tobacco, but ultimately the lack of sophistication in the way the goods were packaged and sent to you meant that intervention was more easily made.
30I must also take into account however what the court said in Barakat v DPP, a decision of the Court of Appeal reported at [2020] VSCA 185, where at paragraphs 53 to 55 the court stated:
‘Although specifically addressed to tobacco offences s233BABAD for sentencing purposes is similar to other offences involving defrauding revenue such as taxation and like offences. Offences against the revenue are not victimless crimes. They undermine the integrity of the taxation system and the ability of governance to raise revenue in a fair and accountable manner.’
‘Because of the financial rewards it 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 the 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.’
31I therefore sentence you as follows: You are sentenced to 18 months imprisonment, but I order that you be released on a recognisance to be of good behaviour after a period of six months. Thank you.
32MR DEVLIN: As Your Honour pleases.
33MR FARRINGTON: As the court pleases.
34HIS HONOUR: Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two years and four months and order that you serve a minimum term of 14 months. Thank you.
35MR DEVLIN: Just the amount of the recognisances, Your Honour. There has to be a sum ‑ ‑ ‑
36HIS HONOUR: The amount of the recognisance will be $1,000. Thank you. All right. Ordinarily, Mr Devlin, in Commonwealth matters the prosecution prepares the recognisance.
37MR DEVLIN: That's being done as we speak, Your Honour.
38HIS HONOUR: Have a seat, Mr Ratel.
39MR DEVLIN: Your Honour, my instructor will say if that's the only matter and there's no other matter could I be excused because I am required in another court.
40HER HONOUR: Yes, of course, Mr Devlin. I can stand down and that can be sent to me. It doesn't have to be done now.
41MR DEVLIN: The period of good behaviour, Your Honour?
42HER HONOUR: Yes, of course. For two years.
43MR DEVLIN: Thank you, Your Honour. It's being done now. It will not take very long, but if I could be excused.
44HER HONOUR: Yes, you are excused, Mr Devlin. Thank you for your attendance. Yes, thank you. It might be best if I just stand down and you can speak to your client. Thank you, Mr Farrington.
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