DPP (Cth) v Halimi
[2003] VSCA 178
•28 October 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.162 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| NAZMI HALIMI |
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JUDGES: | WINNEKE, A.C.J., PHILLIPS and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 October 2003 | |
DATE OF JUDGMENT: | 28 October 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 178 | |
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Criminal law – Sentencing – Revenue offences – Movement and possession of tobacco leaf – Offender arranging for interim delivery and custody – Director’s appeal – Term of imprisonment imposed but offender immediately freed on recognisance release order - Whether sentence manifestly inadequate – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Bugg, Q.C. (Cth D.P.P.) | Solicitor to Commonwealth D.P.P. |
| For the Respondent | Mr J. Kaufman | B. Nuredini |
WINNEKE, A.C.J.:
I will invite Phillips, J.A. to give the first judgment in this appeal.
PHILLIPS, J.A.:
This is an appeal by the Director of Public Prosecutions for the Commonwealth against sentence imposed upon the respondent, Nazmi Halimi, in the County Court on Tuesday 2 April 2003. Halimi was sentenced after pleading guilty to one count of being knowingly concerned in the movement of tobacco leaf without permission by one Kendal, one count of being in possession of tobacco leaf without being licensed and without permission, and one count of being in possession of excisable goods, namely cut tobacco, on which excise duty had not been paid. Count 1 is an offence against s.117D(1) of the Excise Act 1901 (Cth) (as amended by (inter alia) Act No.115 of 2000); count 2 an offence against s.117C(1), and count 3 an offence against s.117(1). In relation to the first two counts, the maximum penalty was either two years' imprisonment or a monetary penalty which, having regard to the net weight of the tobacco leaf involved, was calculated according to a statutory formula to be over $12 million. In relation to count 3, the maximum penalty was either two years' imprisonment or a monetary penalty of $194.80, but again not both. Because the quantity of cut tobacco involved in count 3 was small, namely 160 grams, it could have been dealt with in a court of summary jurisdiction, in which case the maximum penalty would have been 12 months' imprisonment or a fine not exceeding $6,600, or both.
The facts may be briefly stated. The respondent Halimi was hired to oversee and supervise the arrival of a semi-trailer load of tobacco leaf comprising 106 bales and having a gross weight of 10.148 tonnes and a net weight of 9.936 tonnes. He was to store the bales, and it is not known what was then to eventuate in relation to the bales of tobacco leaf. He was to receive $50,000 for this role in the enterprise. In order to carry out the plan, the respondent arranged for the rental and use of a house property in Mount Macedon. He rented the property from the owner, a friend, for
$400 a week, using the pretext that he and his family wanted the property for a holiday. He rented the property on 12 September for a period to last until 2 November 2000, and he paid $800, being two weeks’ rent in advance. He recruited a friend, one Menxhiqi, to assist with the unloading, and on the night in question, 30 October 2000, he was to have paid Menxhiqi $300 for his assistance. Halimi also took his 16‑year-old son with him on 30 October to assist in the unloading of the illicit shipment of tobacco leaf. The respondent was provided with the mobile telephone number of the co-offender, John Norman Kendal, who was the driver of the load from Queensland to Victoria. In the early hours of 30 October, he used his own mobile telephone to contact Kendal and to direct him to a meeting point in Mount Macedon. Halimi met Kendal in the main street of Mount Macedon, and then directed Kendal, and the semi-trailer, to the house that he had rented. The semi-trailer parked as best it could in the driveway and the unloading began, Halimi using a van which he had hired to assist in shifting the bales from the semi-trailer to the carport at the top of the drive. Some 32 bales were moved in this way, before the police, responding to reports from neighbours who suspected a burglary at this time of night, intercepted the respondent, the driver Kendal and those helping Halimi in the course of unloading the tobacco leaf. On 31 October 2000, the Australian Tax Office excise investigators searched the respondent’s own premises and found a small amount (160 grams) of cut tobacco, which is the subject of count 3 on the indictment. In regard to the nett weight of the tobacco leaf, some 9.936 tonnes, that leaf, if manufactured into cut tobacco, and if dutiable at a rate of $243.51 per kilogram, the excise evaded would have been nearly $2.5 million. In contrast, the excise duty on 160 grams of cut tobacco the subject of count 3 was only $38.96.
The sentences imposed in the County Court on 2 April 2003 were as follows: on count 1 (knowingly concerned in the movement of the tobacco leaf) – six months' imprisonment; on count 2 (possession of the tobacco leaf) – 12 months' imprisonment; and on count 3 (possession of the cut tobacco) – one day’s imprisonment. Each sentence to commence on 2 April 2003 and to be served concurrently. Thus the effective sentence was of 12 months' imprisonment, but his Honour ordered, pursuant to s.20(1)(b) of the Crimes Act 1914, that the respondent be released forthwith upon entering into a recognisance in the sum of $1,000 conditioned on being of good behaviour for a period of 12 months.
The Director now appeals and takes two grounds: first that the order that the respondent be released forthwith on recognisance was manifestly inadequate and secondly that the sentencing judge made three specific errors in sentencing: in failing to give sufficient weight to the nature, circumstances and gravity of the offence; in finding that the offences were “rare and not prevalent”; and in failing to give sufficient weight to the need to pass a sentence that would deter others.
It is the fact that below prosecuting counsel urged the judge to impose a term of imprisonment, part at least of which should be served in gaol. But there were circumstances going in mitigation. At the time of sentencing, the respondent was 49 years old and he had been a hard-working man who had successfully built up substantial assets after coming here as a migrant. Unfortunately, by gambling, he lost all that he had built up. True it is that he had some prior convictions, but they were not such as to play a significant part in the sentencing process. Nor had there been any re-offending in the two-and-a-half years between the commission of the offences and the passing of sentence. The respondent was unlikely to re-offend, in the opinion of the sentencing judge, and no attack is made on that finding. What is attacked on this appeal is not only his Honour’s expression of opinion that these offences were “comparatively rare and not prevalent” but, as well, his remark in sentencing that the legislation had but recently been changed, replacing the previous civil procedure for recovery of excise evaded with criminal offences. The first was said to be wrong as a matter of fact; the second irrelevant, or worse, an irrelevancy that had led the judge into underrating the need for general deterrence.
As for the first, that the offences were “comparatively rare and not prevalent”, the Director submits that this was not a matter put to the judge on the plea by either side; nor, he submitted, was it correct – and he points to the six-page chart of such cases determined in Victoria, a list of some 56 cases in the period from December 2000 to July 2003, or more particularly nearly 50 to the date of sentencing. This impressive list was not, however, put to the judge below when he sentenced in April last. Rather, the judge was provided with the sentencing remarks of judges in some six cases involving illicit tobacco or tobacco leaf in the period from December 2000 to April 2002. Whether such cases can then be said to be “rare and not prevalent” is only a matter of degree and I am not prepared to find significant error in that regard. Certainly specific error is not established on that account alone.
The other matter raised by the Director arose out of the plea, for during the plea defence counsel referred on five occasions to the fact that the legislation was amended just before the date of the offending in this instance. Prior to 7 September 2000, the equivalent offence, it was claimed, was under s.117(1) of the Act, for which the penalty on conviction was only a fine; although, I should add, the maximum fine in a case like the present would have been (as now) in the millions of dollars. More importantly for counsel’s purposes, there was no provision for imprisonment, leading him to submit that, had the offending occurred in September, not October 2000, the respondent “would not be in the dock, he would be facing [civil proceedings]”, and on that account should not now be dealt with by way of immediate incarceration. Indeed, his counsel said to the judge on the plea that general deterrence was on that account irrelevant. He said:
“It’s one month out of the – he’s one month beyond the old history and to speak about general deterrence now is unrealistic because it doesn’t apply to this man.”
The Director seized upon this submission to support his contention that the judge himself had put general deterrence to one side, or at least had undervalued its significance. In his sentencing remarks his Honour said:
“Third, you were caught by a change in the legislation which occurred less than one month before these offences. The previous civil procedure for the recovery of excise evaded was then replaced with the current legislation making these matters criminal offences, and imposing the maximum penalties referred to.”
When read in context, however, this statement was no more than a recapitulation of the submissions that were made and I am quite unable to conclude, simply by reference to the foregoing, that the judge fell into error. It is the fact that the legislation had been changed and that imprisonment was now, for the first time, one of the penalties attached to such offending as this. It is more significant, I think, that his Honour went on to say:
“Four, while recognising that regard must be had to the principles of general and specific deterrence it must be noted that these offences are comparatively rare and not prevalent.”
This gainsays, I think, any claim that general deterrence played no part in the sentencing. I have dealt already with the submission that there was error in the statement that “these offences are comparatively rare and not prevalent”, and in the end the complaints about general deterrence being undervalued and the judge’s perception about the prevalence of such offences are to my mind no more and no less than particulars of the general assertion that the sentences imposed were manifestly inadequate because the respondent was not required to serve any period in gaol.
The submission that the sentences were manifestly inadequate on that account is, I confess, somewhat troubling. After all, Parliament deliberately altered the penalties for such offences as these, to include a term of imprisonment. The amount of tobacco leaf in this case was huge, in the order of ten tonnes and well in excess of anything considered in the cases so far determined. There was a degree of organisation and planning for which the respondent was responsible, and it was the respondent who had custody of the tobacco leaf, it seems, after it was unloaded at the rented premises. It would be easy in the circumstances to conclude that, given the degree of criminality involved, not only was a custodial sentence required, but that some part of that sentence would have to be served in prison; and I think that the respondent was fortunate in this case to escape so lightly. To that extent, the sentence imposed ought not to be regarded as a precedent for other cases.
But that said, there are difficulties in our now interfering. This is a Director’s
appeal, with all of the limitations that that entails. Moreover, the sentence imposed was, after all, one half of the maximum of two years' imprisonment and no challenge is made on that account, nor could it be. As for the order releasing the respondent forthwith, we have to bear in mind not only that this is a Director’s appeal but also that the respondent has not yet been required to serve any part of his sentence in custody – and sentence was imposed nearly seven months ago. And then there is the particular circumstance that the charges were laid so late. The respondent was apprehended in October 2000, but the charges were not laid, for one reason or another, until October 2002. Perhaps there was good reason for that in the investigations which were no doubt being conducted into the conduct of others; but, for whatever reason, the respondent was left in a state of uncertainty for two years in respect of charges which, when laid, were relatively straightforward, given the circumstances in which the offending was discovered. It is an important consideration that this appeal is putting the respondent at risk again.
Given the particular circumstances of this case – and I emphasise their special nature – I am not persuaded that the appeal should be allowed and the respondent re-sentenced. Had I been sentencing at first instance, I think that I would have required the respondent to serve some period of time in custody, but the question whether or not to require some part of the term to be spent in custody was in the first place essentially a matter for the sentencing judge and I am not prepared to conclude, in the particular circumstances, that the orders made lay wholly outside the proper exercise of the sentencing discretion. The appeal should be dismissed.
WINNEKE, A.C.J.:
I agree. The real point of the Director’s interesting and eloquent argument is that his Honour should not have released the respondent forthwith. The Director says that this is a chance for this Court to demonstrate that the trial court, and other trial courts in this State, should impose meaningful sentences for offences which are not rare, as this sentencing judge thought. It is put that his Honour was misled into
the view that he took of this offending by having regard to irrelevant matters, such as recent changes to legislation and the non-prevalence of these offences. Even if I was to accept those arguments, I would not interfere with his Honour’s sentencing discretion. I think that his Honour’s sentences were lenient, providing as they did for immediate release, but I would not interfere with his Honour’s discretion on a Director’s appeal in the circumstances which have been put to us. No exception has been taken to the head sentences which his Honour imposed, or their concurrency. Indeed, none could properly be taken. On their own and together, they do, in my view, fulfil both sentencing purposes of general and specific deterrence, at least up to a point, notwithstanding the order for immediate release. The decision by his Honour to order that release is very much the exercise of a discretion which is difficult for an appellate court to set at nought, because it depends to a large extent on the judge’s view of the circumstances and the weight and distribution of weight which he thinks those circumstances deserve. Here, the judge was well entitled to regard that the road to rehabilitation, which had been established by this respondent over a period of some two-and-a-half years, was a factor of significance in the exercise of the discretion. On a Director’s appeal I would not be prepared to interfere with his Honour’s orders, particularly having regard to the fact that three years have now passed since this offending. Indeed, I think, to do so would be unfair to the respondent. It should not, however, be thought that I regard this offending as insignificant, or that in other circumstances proper and just punishment should not involve immediate custodial disposition.
EAMES, J.A.:
For the reasons given by Phillips, J.A., I agree that this appeal should be dismissed.
WINNEKE, A.C.J.:
The formal order of the Court will be that the appeal is dismissed.
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