Director of Public Prosecutions v Zekry
[2020] VCC 181
•21 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAGI ZEKRY |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 February 2020 | |
CASE MAY BE CITED AS: | DPP v Zekry | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 181 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Defraud the revenue – Plea of Guilty
Legislation Cited: Customs Act 1901 (Cth) s233BABAD(2).
Cases Cited: Young v R [2016] VSCA 149; R v Saleh [2015] NSWCCA 299
Sentence: 6 months' imprisonment; Released on a recognizance release order in the sum of $500 and the term of that recognizance will be for a period of 18 months; 6AAA declaration: 6 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr I. MacDonald | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A. Malik | James Dowsley & Associates |
HIS HONOUR:
1 Nagi Zekry, on 13 February 2020, you came before me and pleaded guilty to possess tobacco products knowing that the goods were imported with intent to defraud the revenue, contrary to s.233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for this offence is 10 years' imprisonment.
2 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening for plea. On Monday, 29 May 2017, Australian Border Force officers executed a search warrant at your home address at 18 Cornelius Street, Dandenong. At the time of the execution of the warrant, you were present together with your partner, Ms Catherine Ventura. During the search, a number of items were seized but particularly 64 kilograms of chopped loose tobacco as well as 14,160 cigarette sticks, it is this material which is the subject of the charge. The total of duty and GST payable on the tobacco was $72,422.68.
3 Among the other items that were seized by police were documentation that demonstrated that you were receiving tobacco products from the Philippines via the post and operated a business selling cigarettes and loose tobacco via a website also using the post.
4 You were interviewed under caution, both by way of a field interview and an interview at the Dandenong Police Station. In summary you said that you were the owner of website cheapcigarettes.net.au. The tobacco came exclusively from the Philippines, that you paid Customs "when you guys asked for them" and that you bought small packets of loose tobacco. Further, you admitted that the Express bags found at your premises were used to send out tobacco purchased via the website.
5 During the interview conducted at the Dandenong Police Station, you told investigators that you sold tobacco below the duty value to keep the website running and in future the website would make money. Further, you told investigators that you sent payments to your partner, Catherine Ventura, in the Philippines and that she organised the tobacco at that end.
6 Relied on by way of context to your offending was the fact that you had purchased the website from Mina Guirguis on 16 November 2016 and that Mr Guirguis's business name, Meenamart trading as Cheap Cigarettes, was transferred to you on or about that date.
7 As to your import history, between 1 November 2016 and 25 October 2017, Australian Border Force records reveal that 34 international mail articles were detected by the Australian Border Force containing tobacco that was addressed to you care of a post office box in Dandenong that you had leased from 4 May 2009. In respect to the 34 articles, you had not filed the required documentation with the Australian Border Force in respect to the importation of that tobacco.
8 Additionally, forensic examination of your mobile phone revealed that - the existence of 89 customer orders for tobacco between 21 April and 26 May 2017. You maintained in an exercise book your records in respect to posting tobacco to the customers and the Australia Post tracking number in respect of each of those transactions appeared within that exercise book.
9 It must be remembered that you have pleaded guilty to a charge that is limited to the 29th day of May 2017, the day upon which Australian Border Force personnel executed the warrant at your home address.
10 In respect to the history of this prosecution, you were initially charged with the importation of the total amount of tobacco material said to be imported by you between 1 November 2016 and 25 October 2017 and this remained the case until well after you were committed for your trial. In or around the latter part of 2019, discussions took place between the Crown and your legal representatives and you were indicted in respect to two charges under s.233BABAD(2) of the Customs Act 1901 (Cth), one charge relating to the loose tobacco found in your possession and the other relating to the cigarettes found in your possession. Your matter initially came on before me as a trial in respect to the two count indictment but was resolved by the two counts being rolled-up into the one count upon which you will be sentenced. Accordingly, your plea must be regarded as a relatively early one. Therefore, you are entitled to the benefits of that plea being that it has utilitarian benefit and that it is some evidence of your remorse.
11 You are 48 years of age and were 45 years of age at the time of the offending. You were born in Cairo and you are the elder of two children born to your mother, Margaret, and Samir. Your father worked in electronics and your mother was involved in home duties. I was informed that you enjoyed a happy childhood growing up in a close Christian family. In 1986 your family moved to Australia when you were aged about 15 years. Until your move to Australia you were educated in Cairo and you instructed your counsel that you were a good student with interests in the Boy Scouts, swimming and diving.
12 When you arrived in Australia you could not speak English and attended an English language school in Noble Park for a period of approximately eight months, then moved to Dandenong Technical School where you attended for Years 10 through to 12.
13 I was informed that your time at school was not easy for you as you were bullied because of your race and your difficulties with the English language meant that you were unable to pass Year 12. After leaving high school, you attended a TAFE where you completed Certificate IV in Electronics. Following the completion of your TAFE qualification, you commenced working with your father who was working for a computer company as a technician. You continued working as a technician with your father for a period of three or four years. Thereafter, you left your first employer and worked for another computer company for approximately a year. You then opened your own business undertaking computer repairs before moving on to a business refurbishing power tools.
14 In 2003, you purchased a house in Dandenong.
15 Generally, you are not in good health. You suffer from sleep apnoea and are due to undergo surgery to alleviate the symptoms of what was described in a reference from Monash Health dated 28 January 2020 that forms part of Exhibit 2, as severe obstructive sleep apnoea. The surgical procedure described within that reference could be properly described as major.
16 In addition, in 2003, you were diagnosed with a serious inherited gene disease that causes chronic blood platelet malfunction that results in blood clotting. You are prescribed blood thinners and will be required to take them for the rest of your life. The genetic disease is potentially fatal. The blood clotting has caused venous valve damage and chronic venous ulcers on both of your lower legs, which affects your physical activities.
17 In addition, by reference to a document dated 12 February 2020 under the hand of your general practitioner, Dr Adel Makar, you suffer from severe depression and are medicated for this condition but it appears that it is reactive to the position in which you find yourself. However, this condition has been aggravated by the sudden death of your father in 2017.
18 Between 2015 and 2017, you went into business with a friend running a kebab shop in Glen Waverly - sorry, in Waverley Gardens. I was informed by your counsel, Mr Malik, that your partner defrauded you of between $120,000 and $150,000 by taking that amount of money out of the business over time, leaving you with no money in that enterprise.
19 It was put on your behalf that your offending conduct - that by your offending conduct you were trying to financially support your elderly parents who had retired and that your enterprise was modest in size and that there had been considerable delay in this prosecution.
20 Your partner, Ms Ventura, has returned to the Philippines and it is unlikely that she will return to Australia, bearing in mind that she is likely to face prosecution, should she return to these shores.
21 You have maintained your relationship with Ms Ventura since she left Australia. However, I think it is accurate to describe you as a single man and you have no children.
22 A number of references were tendered on your behalf and form part of Exhibit 2 on the plea. You are an active member of the St Mina and St Marina Coptic Orthodox Church and there is a reference in respect to you from the parish priest of those parishes. Your other referees describe you as devoted to your parents and that you have a good, loving, caring, and helping character, further, that you are loyal to your friends. In addition, your mother is in ill health and you are her principle carer.
23 Both counsel on behalf of the Crown, Mr Pirrie, and Mr Malik, on your behalf, referred me to a number of sentences imposed by Judges of this Court. As well, I was referred to Young v R [2016] VSCA 149 and R v Saleh [2015] NSWCCA 299. The latter authorities set out the sentencing principles in respect to sentencing offenders prosecuted in respect to s.233BABAD of the Customs Act 1901 (Cth).
24 It must be noted that the initial penalty for offending against the Section was 2 years' imprisonment but this was increased by the parliament to 10 years' imprisonment and reflects the seriousness with which Parliament views offending of this kind. General deterrence is a matter which must loom large in the exercise of my sentencing discretion as it does in all offences that involve defrauding the revenue.
25 You have a limited criminal record which I regard as being of little or no relevance for the purposes of exercising my sentencing discretion.
26 In reviewing the sentencing remarks of other Judges of this Court, together with those sentences reviewed in Saleh, your offending would appear to be at the lower end of the range in terms of the total duty and GST that was payable but not paid by you as a result of your conduct. However, by your admissions you were the importer of the tobacco product and the evidence obtained by the Australian Border Force investigators on the day that they executed the raid, being the date of your offending, is but a snapshot of your conduct. Having said that, you can only be sentenced in respect to the offending the subject of the indictment.
27 Effectively, you are a single man without children. Your prior convictions in my view are irrelevant. You are man in ill health. You are devoted to your family. You entered a plea of guilty at a relatively early stage of the prosecution and I regard it as unlikely that you will reoffend in this way again. Ultimately, I regard the process of this prosecution as having been a salutary lesson to you and that your prospects for rehabilitation are good. Will you please stand?
28 Taking into account the circumstances of your offending and its effects, with your personal circumstances and antecedents and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to 6 months' imprisonment. You are to be released immediately on a recognizance release order in the sum of $500 and the term of that recognizance will be for a period of 18 months. Your sentence commences today.
29 Pursuant to s.6AAA of the Sentencing Act [1991], I declare that but for your plea of guilty, I would have sentenced you to 6 months' imprisonment to be served immediately. You may sit down.
30 OFFENDER: Thank you, Your Honour.
31 MR MALIK: As Your Honour pleases.
32 HIS HONOUR: Yes, Mr MacDonald, have you filled out the recognizance release order?
33 MR MacDONALD: Sorry, yes, Your Honour. I'm just making sure that I've filled in all the correct parts of the recognizance release.
34 HIS HONOUR: That's okay. Yes, take your time. Now, Mr Zekry, if you'd stand please. I have sentenced you to 6 months' imprisonment, and effectively I have suspended that period of imprisonment for a period of 18 months. If during that period of 18 months you are not of good behaviour, then you will breach your undertaking that you made to the Court, and you will be brought back to this Court for that breach, and in all likelihood you will be sentenced to serve the six months which has been suspended. Do you understand?
35 OFFENDER: Yes, Your Honour. Thank you,
36 HIS HONOUR: My associate will bring to you now the recognizance release order for your signature, and if Mr Malik wanted to ‑ ‑ ‑
37 MR MALIK: Yes, Your Honour.
38 HIS HONOUR: If you wish to assist your client in that respect. You can date that for him if you like, Mr Malik.
39 MR MALIK: Yes, thank you, Your Honour.
40 HIS HONOUR: He appears to be under some degree of distress.
41 MR MALIK: He hurt his hand yesterday, Your Honour. Yes, Mr Zekry, you can step out of the dock and sit behind your counsel.
42 OFFENDER: Thank you.
43 HIS HONOUR: What we'll do, gentlemen, now is that I'll have the orders prepared and the recognizance release order copied so that each of the parties as well as Mr Zekry can have a copy of the orders and the recognizance release order.
44 MR MALIK: Thank you, Your Honour.
45 HIS HONOUR: Excuse me, please. Jack, if you want to send a copy, three copies of that, please. The Commonwealth hold the original, do they not?
46 MR MacDONALD: Yes. I believe that is practice, Your Honour.
47 HIS HONOUR: Yes. So we really only need two copies of that because the Commonwealth Crown get the original. Yes, we'll keep one and scan it in presumably. Now, you've got the original there, Mr MacDonald?
48 MR MacDONALD: It appears to be. Yes, Your Honour.
49 HIS HONOUR: Thank you very much. Mr Malik, I'd like to thank you for a helpful plea.
50 MR MALIK: Thank you, Your Honour.
51 HIS HONOUR: And also for your assistance with Mr MacDonald. We'll now stand down until 10.30.
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