Director of Public Prosecutions v Suleiman
[2020] VCC 454
•17 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01688, CR 19-01689
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMAD SULEIMAN MOUSSA AL MAHMOUD |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 January 2020, 7 February 2020, 18 March 2020 |
| DATE OF SENTENCE: | 17 April 2020 |
| CASE MAY BE CITED AS: | DPP v Suleiman |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 454 |
| REASONS FOR SENTENCE |
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| Subject: | CRIMINAL LAW |
| Catchwords: | guilty plea, importation of tobacco products, possession of imported tobacco products, contested facts re quantum of tobacco, serious example of importation, sophisticated, large amount of tobacco, good prospects of rehabilitation, COVID-19, general deterrence, adequate punishment, denunciation |
| Legislation Cited: | S6AAA Sentencing Act 1991; s.16A of the Commonwealth Crimes Act; Section 16ABof the Commonwealth Crimes Act; s.16A(1) of the Commonwealth Crimes Act; s.17A(1) of the Commonwealth Crimes Act |
| Cases Cited: | Strbak v The Queen [2020] HCA 10; Brown v The Queen [2020] VSCA 60 |
| Sentence: | Suleiman: community corrections order for 18 months.; Al Mahmoud: sentence of 3 years and 6 months imprisonment with a non-parole period of 24 months |
| Section 6AAA declaration: | Suleiman: 4 months imprisonment;Al Mahmoud: 5 years imprisonment with non-parole period of 3 years |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For Accused Suleiman | Ms Z. Garde-Wilson | Garde Wilson Lawyers |
| For Accused Al Mahmoud | Mr J. Kantor | Garde Wilson Lawyers |
HIS HONOUR:
1Moussa Al Mahmoud, you have pleaded guilty to one charge of the importation of tobacco products, contrary to s.233BABAD(1) of the Customs Act1901 Cth (“Customs Act”), that is charge 1, and one charge of the possession of tobacco products knowing that the goods were imported with intent to defraud the revenue, contrary to s.233BABAD(2) of the Customs Act.
2Mohamed Suleiman, you have also pleaded guilty to charge 2, as well as an additional charge of possession of tobacco products imported with intent to defraud, being charge 3.
3The maximum penalty for all the charges on the indictment is 10 years' imprisonment.
4On 8 May 2018, a container ship, K PEGASUS, arrived at the Port of Melbourne. On the ship was a 40-foot container that had come from Beirut. The consignee of this container MMS Ventures, and the delivery address was 269 Edwards Street, Reservoir, which is a warehouse. This shipping container was selected by Australian Border Force (“ABF”) officers for examination and the container was taken from the wharf to the ABF container examination facility in West Melbourne for inspection.
5There was tobacco found inside boxes in this container. That tobacco is the basis of charge 1 on the indictment, to which Mr Al Mahmoud has pleaded guilty.
6Mr Al Mahmoud and Mr Suleiman, you were both directors of MMS Ventures from the date of the company's incorporation in November 2015. You were also equal shareholders in MMS Ventures. The principal place of business for MMS Ventures was 16 Lorne Street, Lalor. At an earlier time, the principal place of business was 43 Rose Grange Boulevard, Tarneit, Mr Suleiman's home address.
The quantum of the tobacco
Charge 1
7I turn now to the disputed issue relating to the quantum of tobacco in respect of charge 1. Charge 1, concerning the importation of the tobacco products, has been the subject of a contested plea. There is no issue that you, Mr Al Mahmoud, organised the importation of the container and its contents, that much is admitted by your plea of guilty. There is, however, a dispute between the parties about the amount of tobacco inside the container.
8The prosecution's submission is that I should conclude that 1,333 boxes found inside the container each contained 12 bags of coffee and that inside all of those bags of coffee was a packet of Nakhla molasses tobacco. Such a finding would mean that the total excise duty evaded in this matter is $3,613,736.11.
9The defence argument is that the evidence is not capable of establishing that any more than approximately 462 kilograms of tobacco was imported.
10Between the first and the second hearing dates, the prosecution examined a further 154 boxes from the container that had been set aside, but not deconstructed. The prosecution alleges that the weight of the tobacco inside those boxes was approximately 462 kilograms. The parameters of the dispute shifted as the contested plea progressed because of this further evidence.
11The defence have also raised an issue about whether the DNA analysis of the tobacco samples establishes that what was imported was in fact tobacco or a tobacco blend. The quantum of tobacco imported is a matter about which I must be satisfied beyond reasonable doubt as a matter adverse to Mr Al Mahmoud.
12Mr Al Mahmoud did not give evidence on the contested plea and gave no account in his record of interview. Neither is of any significance to my task in determining the issues in dispute here. This is clear from the recent High Court decision of Strbak v The Queen [2020] HCA 10.
13I must decide whether I am satisfied beyond reasonable doubt of the matters adverse to Mr Al Mahmoud based solely on the evidence put forward by the prosecution in support of these adverse inferences. The plea of guilty to charge 1 is the setting for the dispute here but is of no real assistance in determining the disputed issue of quantum.
14During the plea various witnesses were called by the prosecution and cross-examined by Mr Kantor on behalf of Mr Al Mahmoud. I will summarise the relevant parts of the evidence and firstly that of Officer Rajesh Kumanan.
The evidence
Officer Rajesh Kumanan
15On 24 May 2018, Australian Boarder Force (“ABF”) officer, Rajesh Kumanan, was involved in an initial examination of the contents of the container, conducted at the ABF's container examination facility in West Melbourne. He examined the unloaded boxes by X-ray for about two hours. He said he X-rayed the coffee. He saw anomalies in the boxes he was examining, by which he meant inconsistency in the images he was looking at. He said he:
[1] Tr 29 L 1-4
'expects consistency right through, so where the image is darker, is what I call an anomaly. Since it's one single product, the image should be consistent right through.'[1]
16He said that usually a darker area indicates a density difference and he would mark the box for further examination.[2] He identified that the consignment needed to be further examined. He was not asked any questions in cross-examination.
[2] Tr 29 L 17-19
Officer Christopher Burton
17ABF officer, Christopher Burton, was also involved at the beginning of the examination. He gave evidence that, as the container was being unloaded, he opened a box that had been identified as being anomalous. Inside that box were 12 bags of coffee. He looked more closely at six of those bags and he opened one of them. Inside was a silver packet with Nakhla branding. He opened the Nakhla packet. Based on his experience, he believed the substance inside was molasses tobacco.[3]
[3] Tr 33 L 19-25, Tr 34 L 2-24
18He unpacked a number of other boxes and the ones he examined all contained 12 bags of coffee. In each of these further boxes he selected one bag of coffee to open and each bag he opened contained a Nakhla packet similar to the first one he looked at and opened.[4] The weight of the Nakhla package he opened was 242 grams. He also said that he opened up other boxes which did not show anomalies and that the contents of those boxes were consistent with the Customs declaration.[5]
[4] Tr 37 L 4-7, Tr 38 L 4-31
[5] Tr 42 L 7-18, 28-30
Officers Stephen Bonnici and Michael Bramwich
19On 25 May 2018, ABF officers, Stephen Bonnici and Michael Bramwich, further examined the contents of the container. Their task was to separate the boxes which contained anomalies from the boxes with did not. By X-ray, they identified anomalies in 1,333 boxes, which were set aside. Officer Bonnici said the anomalies 'were darker shadings compared to normal items coming through as normal coffee.'[6] He said of the process:
'so you'll see a darker shade and usually it was the whole box that was with the concealment. And then you'll see another box that had no concealment and you'll see it, a lighter shade. So pretty much working out what didn't match and setting it aside.'[7]
[6] Tr 49 L 6-9
[7] Tr 57 L 7-12
20He said the darkness 'means more dense.'[8]
[8] Tr 61 L 24-25
21Mr Bramwich said, 'If there was density in a box, we would put it aside.'[9] It was put to him that any change in the expected density was sufficient for the box to be set aside and he agreed with that proposition.[10] As I understand it, this cross-examination was directed towards what is said to be the absence of consistency in the anomalies observed.
[9] Tr 70 L 17-18
[10]Tr 74 L 24-27
22Office Bonnici gave evidence that on examination of the boxes by X-ray, he was able to identify 12 bags of coffee in each of the boxes which had anomalies, and which were set aside.[11] In cross-examination, he said that this was only an approximate number.[12]
[11] Tr 49 L 11-22
[12] Tr 55 L 8-14
23On this point, Officer Bramwich said, 'I think other people had looked at those boxes and said there were 12 in each box and told me that.'[13] He also said he was not counting the contents of each individual box, as they were going through the machine.[14]
[13] Tr 75 L 29-31
[14] Tr 76 L 13-15
24I accept that Mr Bonnici had some focus on a number of bags of coffee in each box, but Mr Bramwich did not.
25There was cross-examination of these witnesses regarding the reliability of the tally of 1,333 boxes and also about the timeframe of the examination of the boxes within the container. There was also cross-examination about which part of the container the boxes came from[15] and where the serial numbers were identifying markers of the boxes were recorded.[16] These witnesses calculated based on all 1,333 boxes containing 12 bags of coffee, each containing a packet or Nakhla tobacco, that the total number of packages was 15,996 and if the weight of each packet of tobacco was 250 grams, then the total weight was 4,000 kilograms or four tonnes.
[15] Tr 53 L 1-13
[16] Tr 54 L 6-9
Officer Guy Lumsden
26The next witness was Officer Guy Lumsden. He was the original informant in this matter. He attended at the container examination facility on 31 July 2018. He said that the 1,333 suspect boxes had been placed on 12 pallets. He randomly selected one box from each pallet and from each box he opened one bag of coffee. Inside each was a packet of Nakhla tobacco.
27Officer Lumsden knew Nakhla to be a brand of molasses waterpipe tobacco. The weights of the coffee packets that he opened ranged from 247 to 258 grams. He then randomly selected 154 boxes from the 12 pallets and these boxes were put on two pallets. Ultimately the rest of the boxes were destroyed, with the 154 remaining at the examination facility.
28In my view, there was no challenge in cross-examination to the random nature of the selection of the 12 boxes from which a packet was removed and examined or the random nature of the selection of the 154 boxes out of the original 1,333. The 154 boxes had not been examined when the plea commenced in this matter on 28 January 2020.
Officer Robert Stefanutti
29I turn to the evidence of Officer Stefanutti, the Informant. On 30 and 31 January and on 3 February 2020, the informant, ABF officer Robert Stefanutti, coordinated the examination of the remaining 154 boxes. The result of the examination was that each of the 154 boxes had 12 bags of coffee inside and each coffee bag contained a packet of Nakhla tobacco. The average gross weight of each Nakhla packet from inside the 154 boxes was 249.3 grams. As I follow it, the nett weight was 246.6 grams. The total weight was approximately 462 kilograms, which is the amount the defence contend I should not move beyond in my findings.
30Officer Stefanutti also gave evidence on the contested plea. The cross-examination of him centred on suggested discrepancies about the boxes said to arise from a document headed 'Non-firearms record', which was tendered as Exhibit 24. That document refers to 13 pallets, rather than the 12 pallets Mr Lumsden spoke about.
Dr Stephen Cogan
31Dr Stephen Cogan was the expert who analysed the samples of tobacco, provided to him by the ABF. He also gave evidence, on the first examination, the sample from the container was pea. He re-examined that sample and on a second analysis, the result was the sample was pea and tobacco. On a later analysis of what I understood to be a different sample using a different methodology, the result was that the substance analysed was a blend of plant species that includes tobacco.
Submissions
32The prosecutor, Mr Hardjadibrata, argued in both his oral and written submissions that there is a sufficient factual basis from which an inference can be drawn beyond reasonable doubt that all 1,333 boxes contained packets of coffee, inside of which was a packet of Nakhla tobacco.
33He relied on a number of matters, including:
·that all of the 1,333 boxes set aside showed density anomalies;
·those boxes were identical white boxes labelled 'Frendo';
·that Officer Lumsden randomly selected 12 boxes from the 1,333 and each contained 12 bags of coffee, each with a packet of Nakhla tobacco inside;
·that Officer Lumsden randomly selected 154 boxes out of the 1,333 boxes;
·these boxes represent 11.5 per cent of the total number of boxes;
·the result of the examination of the 154 boxes, was that a hundred per cent of the boxes contained the 12 bags of coffee and a hundred per cent of those bags contained a packet of Nakhla tobacco;
·that Mr Al Mahmoud was in the business of selling tobacco, both lawful and unlawful.
34The prosecution further argues that the evidence establishes the approximate weight of the Nakhla packets was 246 grams, or thereabouts, and this is based on the average nett weight from the tobacco packets from the 154 boxes.
35Mr Kantor argued that there are problems in the evidence, such as the discrepancies in the documents[17] relating to the disposal of the balance of the boxes that should cause me to doubt the random nature of the selection of the 154 boxes. He said the non-firearm record raised issues of continuity. He argued there were problems with the original setting aside of the 1,333 boxes, because Officer Bramwich said he set aside boxes if there were any anomalies in density.[18] He also pointed out the cross-examination on this issue.[19] I understood this argument to be, there was no evidence of consistency in the anomalies and therefore the evidence was not of any real weight and provided no certainty on the issue of quantum.
[17] See “non-firearm record” Ex 24
[18] Tr 70 L 14-18
[19] Tr 74 L 24-30
36Mr Kantor argued that the original setting aside was flawed, because not all of the boxes were opened at that point. He argued that the reasoning relied upon by the prosecution that I should draw an inference beyond reasonable doubt from a sample of 11.5 per cent, was a seductive but flawed and insufficient for me to make the finding argued for by the prosecution. He likened this to a drug case, suggesting all boxes should have been opened. He argued that I cannot be satisfied beyond reasonable doubt as to the quantum of tobacco beyond the approximately 462 kilograms found in the 154 boxes that were not destroyed.
Conclusions
37I turn to my conclusions. In my view, Mr Lumsden gave clear evidence that the selection of the initial 12 boxes and then the 154 boxes, was random. He was not directly challenged in cross-examination on this point. In my view, there is nothing in the non-firearms record that creates a doubt about where these boxes came from or whether they were randomly selected.
38I am also satisfied that the 1,333 boxes that were set aside all had inconsistencies relating to density, and I note the unchallenged evidence of Officers Kumanan and Bonnici that the inconsistency observed, was that the contents of the suspect boxes were darker, compared to the contents of the other boxes and that the darker colour was indicative of a greater density or a 'concealment', as Officer Bonnici described it. In my view, there was this consistency in the anomalies.
39I am satisfied of the following facts and I am satisfied of these facts beyond reasonable doubt:
· that the box opened by Officer Burton contained 12 packets of coffee and that each bag of coffee he opened had a Nakhla tobacco packet inside;
· the substance inside the packet he opened had the appearance and smell of molasses tobacco;
· that Officer Burden opened a number of other packets of coffee from other boxes and each one had a packet of Nakhla tobacco inside;
· that Bonnici observed on X-ray that the boxes with anomalies had approximately 12 packets inside; that 1,333 boxes were identified by Bramwich and Bonnici as having these anomalies related to density, in that they looked darker than other coffee boxes when viewed on X-ray and that these boxes were then set aside;
· that a darker appearance equated to a higher density relative to those boxes which had a lighter appearance;
· that all boxes were white and were labelled 'Frendo'; the 12 boxes were randomly opened by Officer Lumsden and all contained 12 bags of coffee with packets of tobacco inside;
· that Officer Lumsden randomly selected 154 boxes out of the original 1,333, that these were set aside for further examination;
· that all 154 boxes contained 12 coffee bags with packets of Nakhla tobacco inside every coffee bag; and that Nakhla is known brand of molasses tobacco.
40In assessing the evidence of what was found in the boxes, I have had regard to the fact that molasses tobacco was found at the Lalor shop, operated by Mr Al Mahmoud and Mr Suleiman; and that that shop sold lawful and unlawful cigarettes and tobacco products.
41I have also had regard to the profit motive and the commerciality of this importation, which in my view, militates against the conclusion that just 11.5 per cent of the boxes contained tobacco.
42I further observe that this was a sophisticated importation of tobacco secreted inside coffee packets. Therefore, it seems to me implausible, in view of the effort and the sophistication that went into arranging and packing the tobacco, that placement of the tobacco would have been limited to approximately 11.5 per cent of the boxes.
43Every box within the suspect group opened by ABF officers contained 12 bags of coffee and every coffee bag contained a Nakhla packet. What was opened was randomly selected from a group of boxes, all of which had anomalies relating to density.
44In my view, it is not a reasonable possibility that in this random sampling of around 11.5 per cent of the original 1,333 boxes that ABF officers managed to capture all of the boxes and packets which contained the tobacco and that there was no other tobacco in the remainder of the 1,333 boxes. I am further satisfied beyond reasonable doubt that a substantial majority of the 1,333 boxes contained 12 bags of coffee, inside of which was a packet of Nakhla tobacco.
45The examination of the randomly selected boxes delivered a 100 per cent positive result for Nakhla tobacco packets. In my view, this is a very significant sample from which to obtain a 100 per cent result, in circumstances where all boxes shared the common characteristic of being darker on X-ray, indicating greater density; and where all boxes all contained approximately 12 packets of coffee.
46I cannot rule out that there might have been some boxes or groups of boxes which did not fit the pattern, or that some boxes did not have the full complement of 12 bags of coffee with tobacco inside, but I am satisfied beyond reasonable doubt that the substantial majority did.
47I am also satisfied beyond reasonable doubt that whilst there is a variation in the weight of the Nakhla tobacco packets, the average weight is between 240 and 250 grams and I base that on the average weight of the tobacco packets from the 154 boxes.
48I do not have any doubt about Dr Cogan's evidence that the substance analysed was a blend including tobacco. In coming to this conclusion, I have had regard to the fact that Mr Al Mahmoud has pleaded guilty to importing tobacco; that the substance came from Nakhla packages and that Nakhla is a tobacco brand; and that Mr Al Mahmoud was in the business of selling tobacco. It did not seem to me that Mr Kantor really pursued this argument about Dr Cogan's evidence in his submissions.
49It is not possible, on the evidence, to be satisfied of a precise amount of tobacco imported, given the number of boxes not examined, but I am prepared to find that the amount of tobacco imported in the container is a very large amount which approaches that alleged by the prosecution and that therefore, the total duty evaded also approaches that amount alleged by the prosecution.
Circumstances
50I will turn now to the facts relating to the plea. The facts of this matter are set out in a comprehensive prosecution opening, which was tendered on the plea. Mr Hardjadibrata read the pertinent sections of that opening on the plea and he summarised the remaining parts of the document.
51I referred earlier to the fact that there is no dispute in this case that Mr Al Mahmoud organised the importation of the container. The documentation relating to the container is set out in paragraph 29 of the prosecution opening. I do not propose to repeat those details, other than that none of the documentation listing the contents of the shipping container included any reference to tobacco products. The documentation establishes that you, Mr Al Mahmoud, arranged this importation and paid $4,814.27 to Australasia relating to the importation.
52Your travel records show that you left Melbourne on 23 February 2018 and that you returned on 16 April 2018. You spent most of this time in Lebanon. The container arrived on 8 May 2018. I conclude that you were involved in arranging this importation on that trip.
Charge 2
53At 16 Lorne Street, Lalor, you, Mr Al Mahmoud and you, Mr Suleiman, operated a business, which was a combined gift shop, homewares and a tobacconist, where you stored and sold imported cigarettes and waterpipe tobacco. After the discovery of the tobacco in the container on 27 June 2018, ABF officers executed a search warrant at 16 Lorne Street. Investigator seized 37.849 kilograms of waterpipe tobacco and 9,586 cigarette sticks. No duty had been paid on either the waterpipe tobacco or the cigarettes. The total amount of duty evaded on the waterpipe tobacco and the cigarettes was $41,503.15.
54When ABF officers attended at the Lorne Street shop, they spoke to a shop assistant who was present, Natalie Alicia. She told them that you, Mr Suleiman, usually relieved her at the end of her working day and that your business partner was a man named Moussa, who would take over if Mr Suleiman was running late. She said that there were two types of tobacco sold at the shop, normal tobacco, which was kept in cupboards behind the shop's counter and cheaper tobacco, cigarettes and shisha tobacco, kept in drawers in the shop's back room. She said that the total sales at the shop were about 50/50 of each kind of tobacco. She identified that the shisha tobacco included waterpipe tobacco labelled with the brand Nakhla.
55CCTV footage was seized. The footage showed both of you frequently attended the shop and served customers, that you were often there together. Both of you can be seen on the footage walking out to the back room of the shop where the illicit tobacco products were kept and then returning and providing those items to customers.
Charge 3
56This relates only to you, Mr Suleiman, and concerns tobacco seized by ABF officers at your residential address at 43 Grange Road Boulevard, Tarneit, where you operated a free-choice tobacco and convenience store. When ABF officer searched that address on 27 June 2018, they found cigarettes and waterpipe tobacco, on which no duty had been paid. The weight of the waterpipe tobacco was 3.807 kilograms and there were 10,100 cigarette sticks also seized. The total amount of duty evaded on these tobacco products was $10,665.60.
57CCTV footage was also seized from 43 Rose Grange Boulevard, which shows that the tobacconist there was staffed either by you, Mr Suleiman, or as I understand it, your wife and there were two other males, one of whom is believed to be your eldest son. The footage shows whoever was acting as the shop assistant, leaving the counter of the tobacconist and walking to the entry of your residence and returning later, either with waterpipe tobacco or cigarettes.
Legal principles
58In sentencing you both for these offences, I must have regard to the sentencing factors set out in section 16A of the Commonwealth Crimes Act. Some of the legal principles which emerge from the intermediate appellate authorities in relation to this offending are as follows:
·The maximum penalty of 10 years' imprisonment for the relevant offence was effectively increased fivefold in 2012, in order to address the specific offending conduct, namely the illegal importation of tobacco and tobacco products;
·Serious examples of this offending are considered sufficiently grave as to warrant a sentence of immediate or full-time imprisonment;
·The offence is effectively one against the revenue and accordingly, any offending must be viewed in the contest of taxation and similar offences and guidance taken from the sentences imposed in these matters;
·This offending is not victimless;
·The revenue must be protected to enable the Government to provide for the community;
·The principle of general deterrence is a particularly relevant sentencing consideration.
59The same authorities also indicate that the factors relevant to an assessment on the seriousness of the offending include:
·The role of the offender;
·The amount of the tax that was defrauded and the scale of the enterprise;
·These are all relevant to an assessment of the objective gravity of the offending;
·In assessing the role of the offender in particular, it is important to identify whether he was the principle organiser of the criminal operation or merely acting on the instructions of others;
·The sophistication of the offending, or lack thereof, is also relevant;
·The period over which the offences were committed is relevant;
·The quantity of tobacco imported and/or possessed, and the amount of duty defrauded or evaded is also relevant.
Gravity of offences
60Turning to the gravity of your offending, Mr Al Mahmoud: firstly, applying the principles set out above and based on the finding that I have made as to quantum, the duty evaded was a very large amount. Secondly, your role was that you alone were the person who arranged this importation for your own benefit and presumably Mr Suleiman's as well, so that you could sell cheap tobacco at a retail level. You were servicing the black market in cheap tobacco for your own profit. This is clear from your plea of guilty to charge 2, which provides the context of the importation.
61I do not know how much you stood to make. I suspect it was not that much, given the excise duty represents a high percentage of the purchase prices, but it must have been enough to justify this risky behaviour.
62This importation was elaborate and sophisticated. The packaged tobacco was hidden inside packaged coffee. However this was achieved, it must have involved considerable planning and effort. These offences are generally difficult to detect and the way the tobacco was hidden was designed to make it even more difficult for authorities to locate the illegal product.
63It seems very clear you will not be able to repay the duty you evaded.
64I assess your offending in this matter as organised and calculated and that is relevant to your moral culpability for this offending. This is a serious example of an importation offence.
65Section 16AB directs me to consider whether your offending forms part of a series or a course of conduct, consisting of a series of criminal acts.
66In this case there is the importation charge and also charge 2 relating to tobacco in your possession that had been unlawfully imported.
67Your offending cannot properly be described as an isolated incident, but nor would I really characterise it as a course of conduct.
Personal circumstances
68Your background is set out in the written plea submissions filed on your behalf and in the psychological report of Mr Staios, dated 13 January 2020, which was tendered on the plea.
69You are aged 34. You were born in Tripoli, Lebanon. You are the youngest child of three. Your childhood in Lebanon was difficult, due to unrest and war in that country during your formative years. Your parents died during your adolescence and you and your sister were raised by your grandparents. You describe your life in Lebanon as difficult and you lived in relative poverty. You took on the role as being the major breadwinner for your family. You were educated up to a Year 8 level in Lebanon, leaving school to work, in order to support your family. You worked primarily on building sites as a labourer.
70You continue to financially support members of your extended family, including a sick grandmother who lives in Lebanon. She is 83 years of age and is chronically sick with cardiac issues and she requires regular medical attention. You report that you send her approximately $20,000 per year to assist with medical bills and you also financially assist other members of your extended family who live in Lebanon.
71You migrated to Australia in 2008, initially on a holiday visa. Your transition to this country was challenging and you had a difficulty adapting to the lifestyle and culture. You primarily associated with persons from a similar cultural background. Your command of English is poor. You worked as a furniture removalist when you first arrived in Australia, but you had to give that employment up as a result of a prolapsed disc and ongoing back pain.
72You have been married twice. You have three children with your second wife, Julie, who you married in 2014. Your children are aged five, three and 11 months. You live in a mortgaged property in Mill Park and I have been provided with some documentation about the balance of your mortgage that indicates a very substantial amount is still owing.
Context of offending
73I am told that the businesses you were running with Mr Suleiman were the cause of significant financial stress. I accept that at the time of the offences, the two of you were running a legitimate import business, apart from your illegal tobacco, of course, and you were the owners of a Free Choice Tobacco franchise from 2016, which was ultimately terminated in November 2018.
74It is put on your behalf and I accept that you were experiencing financial hardship at the time of the offending, that you had refinanced your mortgage three times, and that you had taken out a personal loan of $35,000 and an overdraft of $90,000 to keep the business afloat. I accept that this offending took place in the context of your financial problems and that you were suffering anxiety at the time as a result of your financial problems.
75Mr Staios, in his report, opines that the financial stresses that you were experiencing were a proximal trigger to your current offending and caused high levels of stress for an extended period and limited consequential thinking in order to deal with the significant financial strain.
Prospects of rehabilitation and specific deterrence
76You have no prior or subsequent convictions. You have a supportive family and you are the father of three young children. You have a solid work record and you have been working as a full-time courier since the commission of these offence. I sentence you as a man of previous good character and in my view, you have good prospects of rehabilitation.
77Whilst specific deterrence is still relevant for serious offending such as this, I accept that this offending occurred against a background of financial stress. When you were in your position as a tobacco seller, you took the opportunity to try and unlawfully remediate your financial position. It seems to me unlikely you will ever be in this position again. Accordingly, I have reduced the weight to be given to specific deterrence.
Effect on family or dependents
78You have three young children and you have been the breadwinner for your family. You have a mortgage, to which I have referred and without your income, your wife will not be able to service the mortgage or other debts. You have left your family in profoundly difficult financial circumstances. Your wife has health problems and one of your children has learning difficulties.
79In my view, these matters do not amount to exceptional circumstances, which is what is required before I can have regard to the effect on your family of imposing a period of imprisonment on you. This does not mean I cannot have regard to the effect on you of leaving your family in this position. This is your first sentence of imprisonment. In my view, the sentence will weigh more heavily on you, leaving behind your wife and young children in such a position.
80Mr Staios is of the view that it is likely that you have a limited capacity for 'flexible thinking and general problem-solving, leading to an overreliance on rigid thinking and engrained culturally bound behaviours that differ from Australian socio-cultural norms and that a term of imprisonment will very likely be particularly onerous and may lead to a decline in his mental state, given his limited language skill and no prior forensic history.' I take this matter into account.
COVID-19
81I turn to the effect of the COVID-19 virus. I have received extensive written submissions from the prosecution and the defence concerning the COVID-19 virus and its impact on a sentence of imprisonment. I have also been provided with an affidavit from Jennifer Hoskings, Acting Assistant Commissioner in the Sentence Management Division of Corrections and other material from Corrections as well.
82I think it is necessary to refer to what the Court of Appeal said in the case of Brown v The Queen [2020] VSCA 60:
'With regard to COVID-19 pandemic and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court and others should deal with this crisis as regards its effect upon relevant sentencing principle. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.'
83These comments have been referred to and applied in several recent sentencing decisions of this court, which are set out in the prosecution written submissions. I have had regard to those matters.
84There is evidence in this case in the form of an email from your treating general practitioner, Dr Zainie, describing that your wife suffers from chronic dizzy spells, absent fits, anaemia and chronic lymphocytes causing recurring respiratory infections, due to a low immune response. Your third child has delayed speech and learning difficulties. You suffer from chronic asthma and recurrent sinusitis.
85It is not in dispute that for the foreseeable future, prison visits have been cancelled, nor is it in dispute for the first 14 days of your imprisonment, you will be in quarantine.
86You are a first offender who is leaving a young family behind in invidious financial circumstances. Your wife is ill, and she will have to care for your three children without you. You will not be able to see them for some time.
87It is my view that I must have regard to the fact you will not receive visits from your family for the foreseeable future and that the impact on you of your isolation from your wife and children is heightened by the uncertainty surrounding the virus. This is perhaps more acute in your case because both you and your wife suffer from respiratory problems and therefore fall into a vulnerable class of people in respect of the impact of the virus.
88In summary, Mr Al Mahmoud, I accept that the impact of the virus will cause you additional anxiety and increase the burden of your imprisonment, at least in the short-term. In sentencing you, I take this into account, and I have moderated the sentence I would have otherwise imposed, but for this matter.
Guilty plea and remorse
89I turn to your guilty plea and the issue of remorse. You pleaded guilty to the charges on the indictment at the committal mention on 21 August 2019. The weight to be given to your guilty plea is complicated by the contested nature of the plea hearing in this case, which occupied a number of days. These were not full sitting days because there were interruptions which were not your fault.
90Mr Kantor submits that I should take into account that the evidence against you changed, in that the 154 boxes were only examined in late-January and early-February, following the issues raided on the first day of the plea on 28 January 2020.
91Mr Kantor has also argued that the late service of Dr Cogan's additional statement is another matter I should consider when evaluating the impact of the contested plea on the utilitarian value of the plea and its status as an indication of remorse.
92In my view, the contested plea inevitably diminishes, to some extent, the utilitarian value that I attach to the plea of guilty in this case and the extent to which the guilty plea can be regarded as an indication of remorse; however, I accept Mr Kantor's point about the changing nature of the evidence in the case and, in my view, you should still be given due credit for the time and cost you have saved the community by your plea, given any trial in this matter would have been long and complex.
93I am prepared to accept that your guilty plea also indicates that you have some level of remorse for this offending.
Sentencing practices
94I have had regard to the comparative cases provided to me by the prosecution. I have also considered decisions of judges in this court for like-offending, in order to ascertain sentencing practice in relation to these types of offences. Whilst these cases are a guide, they are not a controlling factor in the exercise of my sentencing discretion.
95Pursuant to s.16A(1) of the Commonwealth Crimes Act, I am required to impose a sentence which is of a severity appropriate in all the circumstances of the offence.
96Section 17A (1) provides that:
'A sentence of imprisonment should not be imposed, unless no other sentence is appropriate in all the circumstances of the case.'
97In a case such as yours, involving a large amount of tobacco and therefore a large amount of excise duty evaded, where the mode of importation was sophisticated and where you alone are responsible for the importation in the context of thereafter selling unlawful tobacco for your own profit, considerations of general deterrence, adequate punishment and denunciation dictate that the only appropriate sentence is one of immediate imprisonment.
98I have not lost sight though of the financial burdens you were subject to at the time as the breadwinner for your wife and young family, which I accept, to some extent, reduces your moral culpability.
Mr Suleiman
99I will turn now to Mr Suleiman and I will complete his sentencing before I finalise the sentences in relation to Mr Al Mahmoud.
100Mr Suleiman, perhaps fortunately, you are in a very different position to Mr Al Mahmoud. Your charges relate to being in position of tobacco products, knowing they were imported with intent to defraud the revenue. The total amount of duty evaded across charges 2 and 3 is $52,168.75. As stated, I must have regard to s.16A(1) and s.17A(1). In my view, the amount of duty evaded puts you in a category where a sentencing disposition not involving immediate imprisonment is open.
101Your counsel, Ms Garde-Wilson submitted I should impose a community corrections order and the prosecutor, Mr Hardjadibrata, agreed that such a disposition was open. I obtained an assessment for a community corrections order and you are considered suitable. Conditions of supervision, treatment for mental health and community work are all recommended.
102Your offences were serious enough. In my view, your offending was for profit and unlawful tobacco was found, both at the Lalor shop and at Tarneit. The CCTV footage shows you actively selling to unlawful tobacco customers. The offending therefore cannot be characterised as isolated.
103You indicated to the prosecution, you would plead guilty, on 19 August 2019 and you entered a plea of guilty at the committal mention hearing in this matter. I accept this was an early plea of guilty. I give you credit for the utilitarian value of your plea and I accept your plea is consistent with remorse and an acceptance of your responsibility for this offending. Your plea shows a willingness to facilitate the course of justice.
104You are 41 years of age. You met your wife in Lebanon, and you travelled to Australia with her when you were aged 23. You worked as a clothing machinist when you arrived in Australia, until 11 years ago, when you moved into rented premises in Tarneit, which had an attached milk bar. Since then you, and as I understand it, your wife, have operated that milk bar.
105You have three children aged 17, 14 and 11. Since your arrest in relation to these matters, your wife has indicated she wants a divorce, although she still lives at the Tarneit residence. You are in debt to Free Choice Tobacco, who cancelled your franchise as a result of this offending. You have apparently ceased coaching your son's soccer team to avoid embarrassment. You have no prior convictions and I sentence you as a person of good character. I am satisfied you have good prospects of rehabilitation.
Sentence Suleiman
106In your case, I intend to impose a community corrections order. You need to consent to this, Mr Suleiman. Do you understand that, to a community corrections order? You have to consent.
107OFFENDER SULEIMAN: Yeah.
108HIS HONOUR: The community correction order I intend to impose in relation to Mr Suleiman is with conviction. It is for a duration of 18 months. It involves supervision, treatment and rehabilitation for mental health and 220 hours of unpaid community work. Any hours undertaken on rehabilitative programs are to be deducted from the hours of unpaid community work.
109Now, do we have a copy of the document there?
110That order, Mr Suleiman, involves mandatory conditions. Do you understand? If you would just stand up for a moment.
·You cannot commit another offence during the period of the order that is punishable by imprisonment. If you did, that would be a breach;
·You have to comply with any obligations or requirements that are prescribed by the sentencing regulations;
·You have to report to and receive visits from Corrections, as required;
·You have to report to a Community Corrections Centre in Werribee. 85 Synnot Street, Werribee, within 48 hours of this order. Two clear working days. Do you understand? And if you do not do that, that would be a breach;
·If you are changing your address and your job, you have to let Corrections know;
·You cannot leave Victoria without getting permission from Corrections to do so; and
·You must obey all lawful instructions and directions of Corrections. Do you understand?
111I will repeat again, it is 220 hours, treatment and rehabilitation related to mental health and the supervision as well. The duration of the order is 18 months and any hours that you undertake with respect to rehabilitation are to be deducted from the 220 hours.
112So that is the - those are the terms of your Correction order. If you sign that document, then I will sign it.
113All right, did you get all that, Mr Hardjadibrata?
114MR HARDJADIBRATA: No. Your Honour, I had the mute button on. I think that I've got down 220 hours of unpaid community work, but the number of hours ‑ ‑ ‑
115HIS HONOUR: Yes.
116MR HARDJADIBRATA: ‑ ‑ ‑ in respect of treatment for rehabilitation ‑ ‑ ‑
117HIS HONOUR: Yes. Mental health.
118MR HARDJADIBRATA: ‑ ‑ ‑ is to be deducted from that.
119HIS HONOUR: That is right. And it is mental health. Mental health and it is supervision and the duration is 18 months and it is with conviction.
120MR HARDJADIBRATA: Yes, Your Honour. Thank you.
121HIS HONOUR: And 6AAA, four months' imprisonment. But for the plea of guilty, I would have imposed a sentence of four months. Do you understand all that, Mr Suleiman?
Sentence Al Mahmoud
122All right, now I will turn to the sentencing in relation to Mr Al Mahmoud. Mr Al Mahmoud, balancing as best as I can in the serious aspects of your offending against the mitigating features that I have outlined, my sentence is as follows:
123On charge 1, you are sentence to a period of imprisonment of three years and six months. That period of imprisonment starts today.
124On charge 2, I sentence you to a period of imprisonment of four months. That sentence also starts today.
125I have made those sentences effectively concurrent, having regard to the totality principle and also because , in considering charge 1, I have had regard to the surrounding circumstances of charge 2, in considering that matter, and there is a degree of overlap, so the total effective sentence - head sentence is three years and six months.
126Having regard - again, balancing the sentencing principles that apply in this case, including general deterrence, adequate punishment and denunciation against considerations of your previous good character, what I find to be are good prospects of rehabilitation, a reduction to some extent in specific deterrence, I fix a minimum non-parole period of 24 months.
127Now, did you hear all that, Mr Hardjadibrata?
128MR HARDJADIBRATA: Yes, I did, Your Honour. It is not a non-parole period, but it must be pursuant to a recognizance release order.
129HIS HONOUR: I thought - if I went over three years, then it was a non-parole period on the head sentence.
130MR HARDJADIBRATA: Excuse me for a moment.
131HIS HONOUR: If I have got that wrong, I will change it, but my understanding was, once I imposed a head sentence of over three years, then I could fix a non-parole period in this way. Was that your understanding, Mr Kantor?
132MR KANTOR: It is, Your Honour.
133MR HARDJADIBRATA: Yes, Your Honour's correct, it's over three years, so it's a non-parole period.
134HIS HONOUR: Yes. And in relation to the starting dates, have I done that correctly?
135MR HARDJADIBRATA: Yes, the starting date is correct.
136HIS HONOUR: Yes.
137MR HARDJADIBRATA: Can I just clarify one matter? Is the 220 hours is the unpaid community work?
138HIS HONOUR: Correct. Yes. Yes. For Mr Suleiman. And as I am entitled to do under the provisions relating to community corrections orders, I have directed that the hours that he undertakes in relation to rehabilitation are deducted from the community work. And I am able to do pursuant to the provisions relating to community corrections orders.
139Mr Hardjadibrata, (indistinct words)?
140MR HARDJADIBRATA: Yes, that's all clear. Thank you very much.
141HIS HONOUR: Just finally, in relation to s.6AAA, which I think you asked me to do in this case, I ‑ ‑ ‑
142MR KANTOR: Yes, Your Honour.
143HIS HONOUR: But for the plea of guilty in relation to Mr Al Mahmoud, I would have imposed a sentence of five years, with a minimum of three.
144Did you get that, Mr Hardjadibrata?
145MR HARDJADIBRATA: Your Honour, thank you. If Your Honour pleases.
146HIS HONOUR: All right. Well Mr Al Mahmoud can go into custody, thank you.
147MR KANTOR: Could I just have a quick word with Mr Al Mahmoud ‑ ‑ ‑
148HIS HONOUR: Yes, yes.
149MR KANTOR: Whilst the ‑ ‑ ‑
150HIS HONOUR: If you could just leave him there while Mr Kantor - I think what I might do is, I will stand down until you have had a chat with your client and then we will resume when the bail application is ready.
151MR KANTOR: As Your Honour pleases.
152HIS HONOUR: All right. Thanks.
153Thanks to counsel for their assistance in this matter.
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