Director of Public Prosecutions v Saoud
[2018] VCC 717
•17 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01443 and CR-17-01440
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOUSSEIN SAOUD AND CARLOS FERNANDEZ |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 4, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, and 19 April 2018. Plea: 20 April 2018 | |
DATE OF SENTENCE: | 17 May 2018 | |
CASE MAY BE CITED AS: | DPP v Saoud & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 717 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr R. Barry | Commonwealth Director of Public Prosecutions |
| For the Accused – Saoud | Mr I. Crisp | Thexton Lawyers |
| For the Accused – Fernandez | Mr A. Jackson | Theo Magazis & Associates |
HER HONOUR:
1 On 3 May 2014, ATO investigators executed search warrants at two farming properties, a factory, and the garage of a house in Tarneit.
2 At one farm, there were signs of recent harvesting of a tobacco crop. Surveillance over the previous months had shown the crop growing, and people involved in cultivating and harvesting it, and loading it onto trucks which removed it from the property.
3 At the other farm, three operational tobacco drying kilns, and a large quantity of drying tobacco was found. Surveillance over the previous months had shown the trucks which had transported the harvested tobacco from the first farm, delivering the tobacco to this farm and unloading it by the drying kilns.
4 A large quantity of cut tobacco packaged into large boxes, a quantity of as yet uncut dried tobacco leaves, tobacco cutting machines and flat pack boxes of the same type as those already filled with tobacco were found at the factory. Found in the garage was a large number of boxes full of cut tobacco. The boxes were the same as the boxes found in the factory.
5
The weight of the tobacco found drying in the kilns was 4227.5 kg. The excise duty payable on that tobacco was $2,147,612.27. Just under 1,000 kg, 994.6 kg to be precise, of dried tobacco leaf, and just over 1,000 kg of cut tobacco,
1,228.1 kg to be precise, making a total weight of the tobacco of 2, 222.7 kg was found at the factory. The excise duty payable on the dried and cut tobacco at the factory was $1,129,153.83.
6 Another 2,587.19 kg of cut tobacco was found in the garage. The excise duty payable on that was a further $1,314,318.39.
7 Had those involved in the growing processing and storing of the tobacco held licences under the Excise Act 1901 (Cth) (as persons growing processing and storing tobacco are required to do), excise duty in excess of $4 million therefore would have been payable to the Commonwealth. However, neither of the two of you who come to be sentenced today, and no one else involved in the growing and processing of the tobacco held licences, and as a result, no excise duty was paid.
8 A combination of what was found when the search warrants were executed, what was seen and recorded by an Australian Crime Commission surveillance team conducting surveillance on behalf of the ATO, and the review of CCTV footage recovered from the factory, as well as other pieces of evidence, revealed a substantial growing, harvesting and drying operation at the two rural properties, and significant activity at the factory related to the processing, cutting, storing and distribution of the tobacco.
9 The evidence in particular revealed you, Houssein Saoud, were the lessee of the two rural properties, and were living on the property where the drying kilns were located.
10 It revealed Lebanon Kamarelddin travelling frequently to and between the two rural properties, during the time the crop was grown, harvested, and dried, and attending frequently at the factory, including, at times, when it appeared tobacco was delivered or despatched. There was evidence linking both Kamarelddin and Saoud with the transportation of kilns from Myrtleford to the two properties where the kilns were located.
11 There was also evidence of Kamarelddin using various vehicles, some hired, some privately owned and registered in names of people associated with him, in connection with attendances at the rural properties and the harvesting and transporting activities. One of the cutting machines found in the factory was a mobile cutting machine, that is, it was bolted to the floor of a truck. The truck was unregistered, but papers found in it revealed that it was Mr Kamarelddin who had purchased it at auction.
12 And it revealed you, Carlos Fernandez, were the lessee of the factory, and were also present at the factory, although not as frequently as Mr Kamarelddin, although you were, at times, there when he was there and when it appeared tobacco was being delivered or despatched.
13 Further investigations led to the discovery of signs of recent cultivation of tobacco in an area of approximately 30 acres, and a further two drying kilns at a property at Konagaderra Road, and, in a discarded bundle of hessian and plastic bags at that property, a copy of the lease in favour of Fernandez in respect of the factory at Glenelg Road.
14 So far as the garage was concerned, the owner of the house to which the garage was attached provided investigators with a handwritten lease agreement between A. Adra and Fernandez, leasing the garage to Fernandez for $2,000 a month. A. Adra is the father of Rumi Adra, who signed the lease of the factory on behalf of Adra enterprises Pty Ltd in favour of you, Mr Fernandez. What limited surveillance there was of the garage was showed Kamarelddin visiting it once, but you, Mr Fernandez, were not seen at the property.
15 Ultimately, charges of dishonestly cause loss to the Commonwealth by non-payment of excise duty on the tobacco were brought against Saoud, Kamarelddin and Fernandez.
16 Kamarelddin was charged jointly with Saoud in respect of the growing, harvesting and drying enterprise at the two rural properties at Davis Road and Troups Road.
17 A further charge of cause loss in respect of the processing storage and distribution operation at the factory in Glenelg Road was brought against Kamarelddin and Fernandez, and a further charge was brought against Fernandez, in respect of the tobacco stored in the garage at Kinnear Road.
18 The charges were heard together and there was no challenge to the Crown contention (amply supported by the surveillance and other evidence) that a large scale tobacco growing, manufacturing and distribution operation was being conducted at those various properties.
19 The defence of all three accused at trial was simply that they did not have any knowledge of or involvement in the operation.
20 Mr Kamarelddin told the investigators when interviewed that he bought and sold machinery and equipment. He admitted to supplying the kilns and all the equipment necessary for cultivation and growing of the crop. He knew what he supplied was used in the growing, harvesting and drying of tobacco. He said he had previously worked on a tobacco farm in the Myrtleford area at a time when lawful licensed tobacco growing activities were conducted there. He said he had visited the properties to visit Mr Saoud, who is his brother in law and cousin, but was unaware of the use to which the equipment was being put, or the nature of the crop being grown, or being dried in the kilns. He said in effect, what he could see being grown on the properties, and the use to which the kilns and other tobacco cultivation and drying equipment were to be put, was none of his business.
21 You, Houssein Saoud, told investigators that you were engaged in growing broccoli, and that others who you declined to name grew something you thought was cabbages. You admitted you had wired up and installed the drying equipment in the kilns, and said others, who again you declined to name, had dried what you believed to be herbal tobacco in the kilns.
22 By their verdicts on Charge 1, and not surprisingly, given the strength of the circumstantial evidence, the explanations of both Saoud and Kamarelddin, and the arguments that your counsel put, did not persuade the jury there were reasonable alternative hypotheses other than that both Saoud and Kamarelddin were criminally were involved in the growing, harvesting and drying of the tobacco at those properties was open on the evidence. The jury found both Saoud and Kamarelddin guilty of Charge 1.
23 So far as Charge 2 is concerned, Mr Kamarelddin had said in interview that he visited the factory solely to visit and socialise with his friend, Mr Fernandez. He denied having any knowledge of, or involvement in the tobacco processing storage or distribution at the factory. He asserted he had only ever been in the office at the front, and not into the working area at the back of the factory.
24 You, Mr Fernandez, like Kamarelddin and Saoud, did not give evidence at trial and unlike them, did not participate in a recorded interview. Your defence was also one of innocent or ignorant association: That the evidence fell short of fixing you with knowledge of or participation in the tobacco processing, storage and distribution activities at the factory.
25 By the jury verdicts on Charge 2, and again, not surprising, given the strength of the circumstantial evidence, Kamarelddin’s explanation and the arguments of both counsel did not persuade the jury that there were reasonable alternative hypotheses – other than that both Kamarelddin and Fernandez were criminally involved in the processing, storing and distribution of the tobacco at the factory – open on the evidence, and the jury found both guilty of Charge 2.
26 The evidence connecting you, Mr Fernandez, with the contents of the garage was not as strong as the evidence connecting you with involvement in the tobacco processing, storage and distribution activities at the factory. Despite the similarity in the boxed tobacco in the garage with the tobacco processed at the factory, and the evidence of links with the Adra family by way of their ownership of the factory and the garage, and a connection with the leasing of some of the vehicles seen at the Davis Road and Troops Road rural properties at relevant times, there was no evidence of your physical presence at the garage or involvement in the delivery there of the boxes of tobacco that were found stored there. Apart from the bare terms of the lease document, and in respect of the garage the connection of members with the Adra family with various aspects of the tobacco related activities, there was no other evidence of your connection with the tobacco stored in the garage.
27 It is not surprising in my view, and certainly not inconsistent with the verdict of guilty in respect of you on Charge 2, that you, Fernandez, were found not guilty of Charge 3. In fact, if anything, the verdict of not guilty on Charge 3 demonstrates a proper application by the jury of the instruction to consider the evidence in respect of each charge and each accused separately on the evidence relating to that charge. The jury certainly cannot, by reason of their verdict on Charge 3, be said to have engaged in improper propensity reasoning in relation to charge 2.
28 This was a sophisticated operation, carried out over a considerable period of time, and requiring the investment of considerable sums of time, money and manpower. The activities included:
· Leasing the two rural properties which featured directly in this trial, namely Davis Road and Troops Road, at a combined cost of $5,200 a month.
· Installing irrigation at Davis Road.
· Having specialist tobacco spraying and harvesting equipment on-site.
· Sourcing, buying and arranging the heavy haulage transporting of the drying kilns.
· Installing, wiring up and maintaining the drying kilns at Troups Road.
· Bussing in labourers to harvest the crop, transport it to Troups Road, unload it and dry it in the kilns.
· Renting a minibus and transporting workers and the crop.
· Renting cars for your own use and the use of others seen to be connected with the operation.
· Renting the factory, taking delivery of and unloading multiple loads of dried tobacco there.
· Using cutting machines and dryers at the factory to cut and process the tobacco.
· Providing boxes into which the processed tobacco could be packed.
· And loading trucks, vans and cars with boxes of processed tobacco.
29 The scale of the operation can also measured by the amount of excise foregone on the tobacco still in the factory at the time of the execution of the warrant, and although I make it clear that you, Mr Fernandez, are entitled to the benefit of acquittal in respect of the tobacco stored in the garage, it is clear that the tobacco was stored there as part of the overall operation, although not part for which you can be held criminally liable.
30 Whilst each of Saoud, Kamarelddin and Fernandez are to be punished for their parts in the operation, and by reference to the charges of which they are convicted, it is clear they were not the only players on what on the convictions, and the evidence is part only of what was a larger operation.
31 Amongst the matters I must take into account in imposing a sentence of a severity appropriate in all the circumstances, are the nature and circumstances of the offence, the loss resulting from the offence, deterrence and adequate punishment.
32 I must also take into account your personal circumstances, your character, antecedents, age, means and physical or mental condition, your prospects of rehabilitation and the probable effect of a sentence on your family and dependents.
33 The circumstances of the offences, as I have outlined them, satisfy me these offences are serious offences of their type.
34 This was a large scale, continuing and serious criminal enterprise, involving sophistication and planning at execution, the investment of considerable time, money and effort over an extended period.
35 A considerable number of people were involved, some possibly as innocent agents, others perhaps knowing participants in one or more aspects of the enterprise, whether it was tending or harvesting the crop, preparing the harvested leaves for placing in the drying kilns, operating the kilns and removing the dried tobacco, baling and transporting it to the factory, unloading it at the factory, cutting, drying and boxing it there, or loading the finished product into delivery vehicles.
36 That is borne out too by the volume of tobacco found in the drying kilns and the factory, and significantly, the size of the loss to the Commonwealth in foregone or avoided excise.
37 It is clear that the penalty for sophisticated, large scale continuing enterprises involving such a loss to the revenue must reflect the need to impose a punishment on offenders, which will mark the unacceptability of such behaviour and serve as a deterrent to you and others minded to engage in such conduct.
38 In my view, the sentence must not only reflect condemnation of this behaviour of tax or excise avoidance, dishonestly causing a loss to the Commonwealth as a result, and act as a deterrent to you, as well as to others minded to engage in activity such as growing and processing tobacco without an excise licence. It is no less serious a crime because it is the Commissioner of Taxation who suffers the loss rather than an individual citizen or taxpayer. Although this case reveals that tobacco excise is a significant component of the retail cost of tobacco, the gravity of the offending cannot be downplayed by disparaging tobacco excise as a “revenue raiser”, as if that somehow justifies avoiding the excise on tobacco.
39 Indeed, as the recent budget papers make clear, the cost to the revenue of illegal tobacco by way of excise foregone is considerable. It is clear that general deterrence is an important sentencing factor.
40 Regardless of the view one might have about the licensing and marketing of tobacco, given what is known about its health risks, and of governments raising revenue on such a product, the gravamen of this offending is cheating the revenue, and it is for that that you must be sentenced.
41
It was originally intended that sentencing for all three accused would proceed together today. However, it is not possible to sentence Mr Kamarelddin today, so sentencing is proceeding only in respect of you, Mr Saoud and you,
Mr Fernandez.
42 There is, in my view, nothing mitigating in the circumstances of the offending and little in your personal circumstances.
43 Both of you are men of adequate intelligence and education, and of mature adult years. Both of you are, as the evidence of the offending reveals, capable of working. There is no physical, intellectual, psychiatric or psychological condition preventing you from working or making rational decisions in relation to whether to engage in this criminal venture or turn your efforts to lawful ways of supporting yourselves and making money. Both of you are married and the father of young children.
44 You come to be sentenced as mature men making conscious choices to engage in wholesale criminal activity. That you did so in the expectation of gain, considerable gain, and were prepared to invest substantial amounts of your time and effort to do so is inescapable. Had you put the amount of time and effort into legitimate paid work, you would be seen as honourably and responsibly supporting yourselves and your families and contributing to the community. You have not modelled for your children the responsibility and commitment of supporting your family by lawful activity.
45 You, Houssein Saoud, are 37 years of age. I was told that you were born in Lebanon, completed your schooling there, and by 2000, had qualified as an electrician and mechanical engineer. In 2003, you married and accompanied your wife, an Australian citizen of Lebanese heritage, to Australia. Your wife is the sister of your co-accused, Mr Kamarelddin. You and your wife came to Australia, I was told, hoping for a better life.
46 Not long after your arrival in Australia, your first child, a boy now 14 years of age was born. He is profoundly deaf and by age five, had also been formally diagnosed as living with autism spectrum disorder.
47 Although you speak some French and English as well as Arabic, I was told you struggled with attaining a sufficient command of written English. As a result, you were unable to obtain recognition of your post-secondary qualifications or obtain equivalent certification here. As a result, you have worked in jobs well below what your training and qualifications should have equipped you for. You told police that you had established a handyman business, and that you were responsible for wiring up the kilns and doing mechanical maintenance work on the equipment. Mr Crisp told me on the plea that you were still pursuing the handyman business, but no evidence to support those instructions put from the Bar table was adduced to support that.
48 I was told that a combination of the stresses produced by your son’s significant disabilities and resultant behavioural difficulties, your difficulty in obtaining employment commensurate with your qualifications, and the resulting financial stresses on the family had led to symptoms of depression and anxiety in you and caused a strain on your marriage.
49 You reported experiencing marriage difficulties at the time of the offending and were living on the kiln property, apart from your wife. I am not able to make any determination as to whether you really were interested in establishing yourself as a market gardener at the time, or whether that was merely a front for the tobacco operation.
50 I was told that since the warrants were executed and the tobacco venture unravelled, you have returned to living in the matrimonial home, but “separated under one roof”. Despite this, you and your wife now have had a second child together who is now two.
51 Your wife, Imam Kamarelddin, gave evidence on the plea. Her evidence as to how long you lived at the farm, how long the two of you had been separated but living under the one roof, and whether you were, for some period up to the time of the jury verdict, living again as husband and wife, I found contradictory and confusing.
52 She said that you are a good husband and father. She acknowledged past matrimonial difficulties, and said that you had, for five years, been separated and living under the one roof. That would cover the time of the tobacco venture. At one stage, Ms Kamarelddin said that you are living together as a family again. She said that she relied on you for assisting with the children, particularly the older boy, who at the age of 14 is now much more difficult for her to manage on her own. Because of the extent of his disorder, he needs to be supervised and managed. He does not know right from wrong, she said and needs instruction all the time as to what to do. She said the two of you were able to communicate with him both by sign language (Auslan) and words, and that the boys, but particularly the older one, heed you. She said he needs his father around. She spoke very positively of the benefits, particularly to your older boy, since you have been more actively engaged in his life in recent years. At another stage, when talking about how hard you worked, she said that you work six days a week and you gave the family a day to take the kids out. At another stage, she said that you had promised to try and be better with the family and to take the kids out, but that had not really happened yet.
53 Similarly, just what is the family’s current financial circumstances was difficult to ascertain. I was told you are self-employed, running both your handyman business and also a painting business. I was told you work six days a week, employing up to four people, and brought home, on average, between $1,500 and $2,000 a week. Ms Kamarelddin, I was told, is in receipt of a carers benefit by reason of the high needs of your older child, of approximately $1,000 per fortnight and relies on you to supplement the pension and pay the mortgage (of just under $1000 per month) on the family home. Whilst I accept, of course, that what Mr Crisp told me was told on the basis of instructions, there was no evidence presented to me to support any of the assertions about your businesses, your income or your contribution to the support of your wife and children.
54 I accept that there is considerable family hardship by reason of your oldest son’s deafness and autism. It seems to me that your wife has shouldered the greater part of the burden of caring for him and the younger child. It seems clear also that she welcomes and encourages assistance from you, and sees positive benefit to the children. She said at one stage that it was more difficult for her because she had no family here. She appears to be a stoical woman who has accepted the hardships life has visited upon her, and done her best in difficult circumstances, including doing her best to keep the marriage or a civil and proper relationship between the two of you for the benefit of the children. You are lucky. Indeed perhaps luckier than you appreciate to have the support of such a woman. It is unclear to me on the evidence how much greater any hardship will be for your wife by reason of your imprisonment. That is, I am unable to make any findings positive or negative about the extent of your past or recent involvement with the children, particularly your older child, and therefore, the extent of any resultant hardship to your wife by reason of your removal and the of the assistance that you can provide resulting from the imposition of a term of imprisonment. Similarly, I am unable to make any findings as to the extent of family financial hardship by reason of your imprisonment.
55
You have a much more limited criminal history than your co-offender,
Mr Kamarelddin. You have been before the Magistrates' Court on one occasion in 2011 on charges of traffic and possess cannabis. You were fined a total of $1,250 without conviction. I was told that the charges related to your own use and that you are no longer using cannabis. It goes without saying that a trafficking charge indicates that this must have been more than own use, and again, it demonstrated to me the difficulty in placing reliance solely on instructions conveyed by you and put to me from the Bar table.
56 Your more limited criminal history indicates that you are entitled to have a more favourable view taken of your prospects for rehabilitation, and that less weight needs to be given to specific deterrence, as is the case with your brother in law, Mr Kamarelddin.
57 Otherwise, so far as Charge 1 is concerned, I see no basis on which I should distinguish between you and him in role and culpability.
58 You, Carlos Fernandez, are 40 years old and unlike your two co-accused, gave your occupation after verdict as unemployed. You are Australian born, and despite assumptions that may be made about your ethnicity from your name, you too are of Lebanese heritage. According to your criminal record, you have, at various times, gone under the name of Abdul Atik, Ricardo DeSilva, and Claude DeSilva. Your formal schooling finished during Year 11 when you sustained injuries during a car accident. Your parents sent you onto Lebanon after that and by the age of 19, you had married there.
59 I was told that you and your wife have five children, aged between 20 and 6. Like both of your co-accused, I was told that the marital relationship had had its ups and downs with periods of separation followed by reconciliation.
60 It would appear that you have not been in paid employment for most of your adult life as a result partly of the knee injury suffered in the car accident when you were a school boy, but also, a back injury caused when you were a young man by heavy lifting. You have some other health problems, asthma and poorly controlled diabetes. Despite that combination of physical injury and health conditions, you have, in recent years, been actively engaged in activities at a kickboxing gym. Despite your physical limitations, you have put yourself up as an opponent to highly skilled kick boxer in exhibition events promoted through the gym. On one occasion, you ended up with broken ribs and had to be taken to hospital. Despite that, you continued your involvement in subsequent exhibition events. The original plan for these exhibition events promoted through the gym was to raise funds to donate to orphans in Syria and Turkey. A character witness, Mehedin Abbas, himself apparently a kickboxer of some renown, gave evidence that through your initiative, the planning went from simply making donations for orphaned children to raising sufficient money to build and operate an orphanage. Mr Abbas said that you are known as the gym mascot, and your presence at the gym makes a massive difference to many of the people who attended.
61 This stands in stark contrast to the behaviour for which you come to be sentenced.
62 I was told in somewhat cryptic terms that in 2013, you were a witness to surrounding events to an attempted homicide in West Brunswick. I was told you made a police statement, but were kidnapped and beaten up in an attempt to make you change your statement and that after that, you were diagnosed with major depression and for some time, took prescribed antidepressants. This was, of course, in the period immediately before the offending that brings you before me.
63 Mr Jackson made it clear that he was not relying on any causal connection between depression and the events subject of the offences.
64 It would appear that in more recent years, since being charged, you have reengaged with Mr Abbas and the gym, and it is during that time that you have thrown yourself so wholeheartedly into the fundraising activities to which I have referred.
65 You have only one previous conviction, but it is a significant one. In 2004, you were sentenced in this court as Abdul Attic on one charge of possession of tobacco leaf. You were caught transporting four bales of tobacco in hessian bags, concealed under clothing in a rented van. The bales weighed 411.6 kg in total, and the excise duty which would have been payable on that tobacco was just over half a million dollars, $537,467.25 to be precise. At that time, you were then 26 years of age and properly to be regarded as an adult offender. His Honour Judge Wodack, the sentencing judge, found that you and your co-offender had committed the offence in expectation of financial gain. He considered that at age 26, you had the opportunity to return to a positive and useful role in the community, and that you were able to rehabilitate yourself, but you would need to exercise self-discipline. He considered deterrence was a relevant sentencing feature. He sentenced you to be imprisoned for a period of six months, and you were released immediately on your reconnaissance to be of good behaviour for a period of two years.
66 Unfortunately, this offending shows that the deterrent effect of charge and punishment, and the positive encouragement to your prospects for rehabilitation by imposing a term of imprisonment that did not require any part of it to be immediately served, did not have a lasting effect in deterring you, now a mature man, from engaging in like offending, but a much larger scale and doing much more than simply transporting harvested bales. It is clear, therefore, that specific deterrence is a significant factor here, and that the weight to be given to your prospects for rehabilitation must be tempered by reason of that. In addition to this significant prior conviction, you have been before courts on two occasions since being charged with these offences, for offences committed after them. The first charge was an assault for which you were placed on diversion. In the circumstances, I do not consider that to be relevant for sentencing purposes today.
67 However, the second appearance is of much more concern because it concerns money laundering. In February 2015, you were sentenced to a further period of six months' imprisonment, again to be released immediately upon entering into a reconnaissance to be of good behaviour for a period of two years. This was on a charge of possession of property suspected to have been the proceeds of crime and on the same day, in the same hearing, you were fined $15,000 for failing to report the transfer of currency in excess of $10,000 out of Australia.
68 This subsequent matter is relevant to the assessment of the need to impose a sentence that deters, and to temper the weight otherwise to be given to your prospects for rehabilitation.
69 Mr Jackson submitted that the needs of deterrence and the weight to be given to your prospects for rehabilitation have, to some extent, been addressed by the fact that this is your first time in custody and on the morning of your plea, the day after the jury verdict, you indicated that your night in custody had been a salutary experience. That may be so, but that must be weighed against the fact that in 2004, you were given an opportunity by the imposition of a term of imprisonment not immediately to be served, and have since subsequently offended. You have had plenty of opportunity throughout the period since you were first dealt with by a court to contemplate the consequences of further offending, and time to think about the opportunities that had previously been afforded to you.
70 As counsel for both of you conceded, no sentence other than one involving a term of imprisonment immediately served is appropriate. Neither of you can call in aid the benefit of a guilty plea, and there is no evidence of any remorse or contrition, which might brighten your prospects for rehabilitation. The inescapable conclusion is that you both participated in this for gain. The whole purpose of the enterprise, into which you put so much effort, was to produce tobacco for supply to market, a money making venture in itself, and in circumstances where the return would be maximised by the avoidance of excise. So increasing the potential profit, as well as (and this is, of course, the gravamen of the charge) dishonestly causing loss to the Commonwealth.
71 The amount of revenue foregone, measured solely by the amount of tobacco found in the kilns and at the factory, was just in the vicinity of $3.5 million. Whilst this quantifies the loss to the Commonwealth in respect of the two charges before me for sentencing, it is not the sole measure of the scope or seriousness of the offending. It is clear the tobacco in the garage was also part of the operation, although neither of you are to be treated as criminally liable for the loss caused to the Commonwealth caused by non-payment of excise on it. Similarly, neither of you come to be sentenced in relation to the cultivation or drying of tobacco at the Konagaderra Road property, although there is some circumstantial evidence linking it to the operation. I am unable to ascertain on the evidence before me whether the tobacco, in its various forms, in the various locations, represents the whole of the tobacco grown and processed as part of the venture.
72 What I can safely infer is that this was an ongoing venture, a sophisticated, large scale enterprise, covering the whole process of manufacture of tobacco from bare acre to finished product, interrupted only by the execution of the warrants.
73 I was told that this is the first time a black market tobacco manufacturing venture has been dealt with by this charge of dishonestly cause loss to the Commonwealth. There is, therefore, no guidance from other sentences or statements of principle expressed by appellate courts in relation to this charge being employed for this type of offending.
74 The maximum penalty for the charge is five years' imprisonment. In my view, the matters that I have identified all point to this offending being at the high end of the range of seriousness for this offence of dishonestly cause loss to the Commonwealth, and the sentences must reflect that.
75 Could you now please stand? Sorry, just the two accused.
76 Houssein Saoud, on Charge 1 of which the jury found you guilty, you are convicted and sentenced to be imprisoned for a period of three years.
77 I declare that you have spent 28 days in pre-sentence detention and that be counted and reckoned as part of the sentence already served.
78 Given the term of the sentence, I must make an order, a reconnaissance release order. I direct that you serve two years and three months of the sentence before being released on reconnaissance for a period of nine months to be of good behaviour. The reconnaissance is to be fixed in the sum of $5,000.
79 Carlos Fernandez, on Charge 2 of which the jury found you guilty, you are convicted and you too are sentenced to be imprisoned for a period of three years.
80 Again, for you, I declare that you have spent 28 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
81 For you too, I fix a reconnaissance release order and direct that you serve two years and three months before being released on reconnaissance for a period of nine months to be of good behaviour. The reconnaissance is to be fixed in the sum of $5,000.
82 You can take a seat for a moment while the papers are prepared.
83 Mr Barry, does the way I have pronounced the sentence reflect what is required under Commonwealth legislation?
84 MR BARRY: Excuse me, Your Honour. Could I just clarify the sentence on Fernandez?
85 HER HONOUR: Three years.
86 MR BARRY: Fernandez. Three years?
87 HER HONOUR: Yes, three years for both accused.
88 MR BARRY: Three years. Sorry. Thank you, Your Honour. Three years. So it is exactly the same? Three years and released after two years, three months?
89 HER HONOUR: Yes, released after two years, three months. The period of reconnaissance being for nine months - - -
90 MR BARRY: Yes.
91 HER HONOUR: - - - and amount of reconnaissance, $5,000.
92 MR BARRY: Yes and the answer to your question is yes, Your Honour.
93 HER HONOUR: Thank you. Do you agree with that, Mr Crisp and Mr Jackson?
94 MR CRIPS: Yes, Your Honour.
95 MR BARRY: My instructor is attending to those matters, Your Honour.
96 HER HONOUR: Mr Saoud and Mr Fernandez, can you stand again please?
97 The effect of the orders as I have pronounced is that you have been each sentenced to a term of imprisonment of three years, that you serve two years and three months of that and then to be released on a reconnaissance to be of good behaviour for a period of nine months, which is the balance of the term of the sentence.
98 You are to be released on that reconnaissance on your undertaking to be of good behaviour for that period of nine months and I have fixed the amount of $5,000 as a sum of that reconnaissance.
99 If during the period of release on that reconnaissance during that nine month period, you are not of good behaviour, whether that is by committing a further offence or for any other reason, you can be brought back before the court and action can then be taken in respect of the unexpired portion of the sentence and the surety or the reconnaissance I should say. Do you understand that?
100 OFFENDER: (Indistinct words.)
101 HER HONOUR: I am sorry, do you want me to say that again or - - -
102 OFFENDER: I do not understand.
103 HER HONOUR: All right. You must serve two years and three months of the sentence that I have ordered. The last nine months, you will be released, but you must be of good behaviour during that time. You must behave yourself and not commit any other offences during that nine months. If you do commit another offence or do not behave yourself, you must be brought back before me to be dealt with for not behaving yourself in that nine months. Do you understand that?
104 And if that happens, then I can deal with you for not having been of good behaviour and I can also make you pay the $5,000, which is a sum I have fixed as the amount to secure your promise to be of good behaviour. Do you understand that?
105 OFFENDER: Yeah.
106 HER HONOUR: All right, thank you. Mr Crisp and Mr Jackson, can you please accompany my associate to the dock? Once you have checked that those reconnaissance release orders are in correct form, have your clients sign the acknowledgement and then return it to me.
107 MR CRISP: Yes, Your Honour.
108 MR JACKSON: Yes, Your Honour.
109 HER HONOUR: Mr Saoud, Mr Fernandez, I am required to give each of you a copy of this order. What I will do is arrange to have that sent downstairs to you after you have been removed from the court. Any further orders that are required to be made?
110 MR BARRY: No, Your Honour.
111
HER HONOUR: Thank you. Could you please remove Mr Fernandez and
Mr Saoud? Mr Crisp and Mr Jackson, I assume you are going downstairs?
112 MR JACKSON: Yes.
113 HER HONOUR: In that case, I will have copies made and provided to you to be provided to your clients. Is that a satisfactory course?
114 MR JACKSON: Yes,
115 MR CRISP: Yes, Your Honour.
116 HER HONOUR: Thank you. I am going on leave at the end of this week and I have got a training day tomorrow, so I will not be at court. I will not, therefore, be able to revise my reasons for sentence expeditiously, but I will now authorise the release of the unrevised reasons as soon as they become available and I will have communication with you as to how you can access them because my associate will also be on leave. So that you can get them as soon as possible.
117 MR BARRY: Thank you, Your Honour.
118 HER HONOUR: If you want a copy of the recording of the reasons for advice purposes, you can get that today and that will certainly obviously be of assistance if you need to consider your position. Just let Mr Hall know if you do want a copy of the recording so we can do it as soon as possible. Thank you. Unrevised reasons obviously provided to you too, Mr Barry, to the Commonwealth.
119 MR BARRY: Thank, Your Honour.
(Short Adjournment)
120 HER HONOUR: Mr Barry and Mr Crisp, thank you for your return. I called the matter on for further mention because it was brought to my attention as soon as I had or almost as soon as I had left the Bench after sentencing Mr Saoud that further documents had been e-filed by the defence. They had not, although they had been filed with the Court, there had been no notification to me or my associate they had been filed. I understand now from the e-mail that has been sent by the Commonwealth DPP that the documents were not served on the Commonwealth and no mention was made, Mr Crisp, by you of the documents. So when I sentenced, I was unaware of them. I thought therefore in procedural fairness terms, I should, as quickly as possible, relist the matter so that it could be dealt with.
121 I cannot understand, Mr Crisp how I was not told.
122 MR CRISP: Well just one aspect to this, Your Honour. I do not know the internal work is of the County Court because I accept that if they were e-filed, they were kept the file and I - - -
123 HER HONOUR: Yes, the file is an electronic file. That is the whole purpose of e-filing. Unless we are told that something new has been e-filed. I left the plea hearing on the understanding that you had completed your plea submissions.
124 MR CRISP: No, it was an understanding that I was going to find extra documentation and make it available to Your Honour that was in relation to the accountant, the fact that he is running two businesses, he paid tax and it was a question in relation to the doctor. Your Honour asked me a question, does the mental health care plan relate to that doctor or who does it relate to?
125 HER HONOUR: Yes, I certainly asked questions and made observations about the paucity of the material or the absence of supporting documentation. I had not appreciated that you intended to obtain further documents. And the absence of reference to them this morning, that you did not bring them to my attention before I started to sentence to ensure that I had them or raise it before I left the Bench disappoints me. However, we are here now and I will deal with them.
126 MS CRISP: Well Your Honour, I did actually draw to Your Honour's associate's attention because I felt it was important.
127 HER HONOUR: Yes, after I left the Bench and sentenced.
128 MR CRISP: Yes. Well - - -
129 HER HONOUR: But nothing was said in court before then, that is what I am complaining about. I am surprised and disappointed. It is an unfortunate situation and it is unfortunate for your client, who has had to wait here all day. But I am now back and I will deal with them.
130 MR CRISP: Yes. Well I want to make it clear with respect, Your Honour that I took a very responsible attitude to this. I took a lot of time and effort to get this documentation because it was not easy and I sent it to the court and perhaps there is a difficulty here because as I said before, I do not know what the internal workings are. I do not know whether if I e-lodge it, which I am always asked to do, whether it comes directly through or it sits there. I am not certain, Your Honour and I was - - -
131 HER HONOUR: Well if you read the practice note, you will find out.
132 MS CRISP: Well perhaps I did not. But at least what I have done is I have gone as far as I could go to get all this documentation to satisfy those questions and my understanding was that when I left the court on that last occasion, there was - I have made a note here. I have to obtain material about his income, his tax returns, a letter from Dr Teng to say whether the mental health care plan (indistinct) to that doctor or some other doctor and I remember we had a discussion about that. But I am not attempting in any way to indicate that it is anybody's fault. All I am saying is I got the material. Yes, I might have alluded Your Honour a few minutes too late today. But there was nothing in that because - - -
133 HER HONOUR: Well there is because I was not aware of it and therefore, could not take it into account at the time I sentenced.
134 MR CRISP: Well - - -
135 HER HONOUR: That is the concern, the potential unfairness to your client.
136 MR CRISP: Well I go back to this fact. That I had obtained the documentation. In the past, I have been criticised for emailing it to a judge's associate and I am told, do not email it, e-file it. So I e-filed it and as I say, I do not know what happens then.
137 HER HONOUR: All right.
138 MR CRISP: So there was no intent to mislead the court or do anything which would prejudice my client's case. It was the opposite to get the material.
139 HER HONOUR: All right and I gather then, the fact that you sought to make no submissions on those materials this morning means that that position still obtains today? Still obtains now?
140 MR CRISP: Well I understand that it just supports some of the original - - -
141 HER HONOUR: Yes, but you did not seek to make submissions about the documents this morning.
142 MR CRISP: Well - - -
143 HER HONOUR: And so what I am saying is I am just confirming that therefore, you having filed them, I now having read them, you do not seek to make any further arguments or submissions based on them?
144 MR CRISP: Well it does change matters slightly to this extent. That when I was addressing you in relation to the fact that he is capable of reformed rehabilitation, this is material which I had already - - -
145 HER HONOUR: No, no, no, I am making a different point. Had you wanted to make oral submissions about the content of the documents, the time to do it was this morning before I sentenced and you did not - - -
146 MR CRISP: I had already made this - - -
147 HER HONOUR: That is right, and you did not do so I am assuming that that is the case. That you filed them and I have either - I am either in a position to read them and take them into account or not.
148 MR CRISP: Well I made - I put it this way, Your Honour.
149 HER HONOUR: Yes, I know you have made your submissions. I am not suggesting you have not, Mr Crisp.
150 MR CRISP: I made it originally.
151 HER HONOUR: Yes.
152
MR CRISP: And I was waiting, I suppose. Assuming that Your Honour had received them and when Your Honour said there was an absence of material
- - -
153 HER HONOUR: No, I am sorry, we are at cross-purposes. You have already addressed me on that.
154 MR CRISP: Yes.
155 HER HONOUR: What I was simply seeking to do was place on record the fact that I could now proceed to deal with the matter as best I could because you not having sought to make any oral submissions about the content of the documents this morning, that must be the same situation now when I have called this back on.
156 MR CRISP: Yes.
157 HER HONOUR: Thank you, I understand that. Thanks, Mr Crisp. Mr Barry, I understand you have now been provided - - -
158 MR BARRY: Yes.
159 HER HONOUR: - - - with a copy of those documents.
160 MR BARRY: Yes I have, at 4 o'clock, Your Honour and I have been waiting for them all day. That is a criticism. So I have had a quick read of them in the 20 minutes it has been available to me, Your Honour and in my respectful submission, for what it is worth, they do not take the matter very much further, if at all. They are of minimal weight. It is not even clear from the accountant in the email from Mr Crisp for how long he has been acting for Saoud. It is not clear when Pro Edge Painting was incorporated or brought into existence.
161 On the face of the documentation, we have an assessment notice of tax in Saoud's name itself. Then we have some financial documents, a taxation estimate and a financial statement in relation to Pro Edge, which in 2017, both of those, for Saoud and Pro Edge. These offences occurred in 2014.
162 As to the medical material, Your Honour, the bottom line of it is that I see it as at 16 April 2018, Mr Saoud continued to have back pains, which he has had for a period of time. It is not too bad now. Apparently was the last assessment. According to Mr Saoud, he has been careful and he is on medication as to it.
163 As to the mental health assessment, which was done on 14 March 2011, the documentation seeks there to indicate how that came about. That does not take the matter any further. It is totally irrelevant to the offending and in my respectful submission, none of this material adds in any significant way to what my learned friend said on the plea.
164 HER HONOUR: Thank you.
165 Immediately after I left the Bench after passing sentence this morning, Mr Crisp told my associate that further documents had been e-filed on behalf of Mr Saoud between the completion of the plea hearing, and this morning’s sentence.
166 There was no communication from Mr Saoud’s legal advisers to my associate that further documents had been filed.
167 The sentence I imposed, and the reasons I expressed were therefore made without knowledge of or reference to those materials.
168 I have now reviewed the materials. They comprise what will now be Exhibit Saoud 4, tax returns for Mr Saoud and the Pro Edge Painting Pty Ltd, a company established to run Mr Saoud's painting business for the year ended 30 June 2017 and financial statements also relating to Pro Edge.
169 Exhibit Saoud 5, a printout of Mr Saoud’s patient history for the period 21 June 2012 to 16 April 2018 provided by Dr Mar Teng who reports that he had been seeing Mr Saoud intermittently at his clinic over that period.
170
Exhibit Saoud 6, a letter from Bluestone Family Medical Centre confirming
Ms Kamareldin’s diagnosis of depression, the prescription of antidepressants and the referral for psychotherapy, as well as the older son’s diagnoses of autism and hearing impairment, and asserting that Ms Kamarelddin needs her husband for support.
171 Exhibit Saoud 7, a letter from Ms Kamarelddin which supplements the sworn evidence she gave on the plea, and includes some references to her circumstances and those of her oldest son since Mr Saoud was remanded;
172 And Exhibit Saoud 8, a bundle of testimonials.
173 I attempted to reconvene the court immediately after this had been brought to my attention in order to give Mr Crisp and Mr Barry the opportunity to make further submissions.
174 As it turned out, both counsel had other court commitments and were unavailable immediately.
175 I therefore arranged for the matter to be relisted for 4.15 PM today at the end of the sitting day.
176 The urgency comes about because I had already advised counsel at the conclusion of sentencing today that today was my last sitting day before going on leave.
177 I have reviewed the documents and I do not consider that there is anything in them that leads me to doubt the correctness of the sentence that I imposed in ignorance of that material.
178 I make the following observations.
179
The provision of the tax returns and assessment and financial statements do provide some evidence, as opposed to bar table assertions in relation to
Mr Saoud’s financial circumstances. Those materials do not support the submissions made on the plea that Mr Saoud has been bringing home between $1,500 and $2,000 a week.
180 The personal tax return declares an income of $30,000 as earnings from his employer Pro Edge Painting Pty Ltd. That is, his own painting business company. The tax return and financial statements for Pro Edge Painting Pty Ltd declares a gross income of $105,368 and expenses of $95,559, leaving a net profit before tax of $9,809. Included in the profit and loss statement is the amount of $30,000 for directors fees, which mirrors the income declared in the personal tax return.
181 The patient history provided on behalf Mr Saoud is consistent with the matters put to me on the plea, and which I took into account.
182 So far as the report concerning Ms Kamarelddin is concerned, insofar as it confirms a diagnosis of depression and prescription of medication, that is consistent with the evidence she gave on the plea, and which I have taken into account, similarly in relation to referral for psychotherapy. So far the as report expresses a view about hardship to Ms Kamarelddin, by reason of her husband’s incarceration, I make the following observations. It is not clear what information the doctor has as to the assistance that Mr Saoud has been providing in relation to his older son, and whether that is consistent with what was put to me or to my findings. Insofar as therefore as his opinion is a medical opinion within his expertise, rather than an expression of his own opinion as to the appropriate sentence, something that clearly is not, I give it little weight because the basis is not set out.
183 The letter from Ms Kamarelddin is in line with her sworn evidence. Insofar as it relates to hardship since remand, in my view, it is no more than what would be expected, and what I have already taken into account. When I say - when I speak of matters that I have already taken into account, I mean as expressed in the reasons for sentence delivered this morning.
184
So far as the testimonial from the Imam is concerned, I find it surprising. It asserts that Mr Saoud has always conducted himself with great respect for other people, respect for the law and any other authorities. The Imam says that he has always known Mr Saoud to be honest and trustworthy. He says that
Mr Saoud is very disappointed and has great remorse for his actions, that he is deeply embarrassed and is determined not to let himself down again. This is at odds with the evidence before me and the matters put on the plea. Another testimonial also referred to Mr Saoud being remorseful, and yet another seems to have been written under the misapprehension that Mr Saoud pleaded guilty rather than was found guilty by a jury.
185 Given his not guilty plea, and the absence of any acknowledgement of involvement in the tobacco crop at trial and on plea, these testimonials would not have led me to form a more favourable view of Mr Saoud’s character or prospects for rehabilitation than the view I have reached and expressed in my reasons for sentence.
186 I direct that this be treated as an addendum to reasons for sentence and added to it, and again, I direct that once transcribed, the unrevised version of that be provided to the parties.
187
Thank you. Can you now please remove Mr Saoud? Yes, you may go,
Mr Saoud.
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