El Masri v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0064

MOUSTAFA EL MASRI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2023
DATE OF JUDGMENT:	28 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 93
JUDGMENT APPEALED FROM:	[2022] VCC 549 (Judge Doyle)

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CRIMINAL LAW – Appeal – Sentence – Importation of tobacco with intention to defraud the revenue – Total effective sentence 3 years – Applicant to be released after 18 months on condition of good behaviour for 18 months and payment of $2,000 recognisance – Family hardship – Crown concession – Failure to take into account relevant consideration – No appreciable change in balance of sentencing synthesis – Whether sentence manifestly excessive – Prospects of rehabilitation good but not excellent – General deterrence primary sentencing consideration – Sentence within range – Leave to appeal refused.

Customs Act 1901 (Cth) s 233BABAD; Crimes Act 1914 (Cth) s 16A(2)(p); Criminal Procedure Act 2009, s 281.

Totaan v The Queen (2022) 101 NSWLR 17; [2022] NSWCCA 75; Mohamed v The Queen (2022) 367 FLR 482; [2022] VSCA 136 applied; Director of Public Prosecutions (Cth) v Nassar [2022] VCC 387 distinguished.

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Counsel
Applicant:		Mr P Smallwood with Ms B Kelly
Respondent:		Ms R Champion
Solicitors
Applicant:	Melasecca, Kelly and Zayler
Respondent:	Mr J Carter, Solicitor for Public Prosecutions (Cth)

EMERTON P
T FORREST JA:

In January 2019, the applicant was involved in the importation into Australia of 10,714,000 cigarettes in the guise of office furniture. The duty payable on the cigarettes was $8,648,983.64. The prosecution case was that the applicant paid for the release of the shipping container containing the cigarettes, was responsible for paying others hired to unload the container, and unloaded some of the cigarettes himself.
On 4 October 2021, the applicant pleaded guilty to importing tobacco products with the intention of defrauding the revenue.
On 20 April 2022, Judge Doyle sentenced the applicant as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Import tobacco products with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth)	10 years’ imprisonment, or a fine not exceeding the amount worked out under s 233BABAD(5) of the Customs Act 1901 (Cth), or both	3 years’ imprisonment, to be released after 18 months’ imprisonment on condition of good behaviour for 18 months and payment of a $2,000 recognisance	N/A
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		N/A
*Pre-sentence Detention Declared pursuant to s 18(1) of the Sentencing Act 1991:*		Nil
Section 6AAA Statement:		5 years’ imprisonment with a non-parole period of 3 years and 4 months

The applicant now seeks leave to appeal his sentence on the following grounds:
(1)The sentencing judge erred by failing to take into account a relevant consideration under s 16A(2)(p) of the Crimes Act 1914 (Cth) (‘Crimes Act’), being the probable effect that a sentence under consideration would have on the applicant’s family or dependants.
(2)The sentencing judge erred by failing to find that the applicant had excellent prospects of rehabilitation.
(3)The sentence is manifestly excessive, in all of the circumstances, because the term of imprisonment required to be served before release on recognisance was too long.
At the time of sentencing, s 16A(2)(p) of the Crimes Act was considered to be inapplicable unless the effect of the sentence on family or dependants would be ‘exceptional’. That is no longer considered to be good law, as was conceded by the respondent.
However, for the reasons that follow, leave to appeal will be refused.

Background

Circumstances of the offending

On 7 January 2019, a customs broker firm, 20 Cube Logistics (‘Cube Logistics’), was advised that a container addressed to Australian Furniture Pty Ltd was scheduled to arrive in Australia in the next few days. The container’s declared contents were 390 cartons of office furniture. Cube Logistics prepared a Full Import Declaration declaring the customs value of the import to be $22,510.41 and the duty payable by Australian Furniture Pty Ltd to be $2,677.61.
On 10 January 2019, Cube Logistics emailed an invoice to Australian Furniture Pty Ltd requesting payment of $5791.51 for the release of the container. This amount included the duty payable as well as other associated costs. Later that day, Cube Logistics received an emailed photograph of a cash deposit slip recording the deposit of the requested amount into its bank account. The applicant had made the cash deposit. Cube Logistics advised that the container would be released on 14 January 2019.
Around this time, the applicant asked an associate, Ibrahim Mounajed, to unload some boxes in the coming week. Ibrahim Mounajed is the nephew of Fadi Mounajed, who was also charged with an offence arising from these circumstances.[1]
[1]DPP v Mounajed [2021] VCC 389 (‘Mounajed’).
The container arrived in Australia on 11 January 2019. At approximately 8:26 am that day, the applicant sent Ibrahim Mounajed text messages reminding him to pick up a Budget truck and arranging to meet him and Fadi Mounajed. Later that morning, Fadi Mounajed, Ibrahim Mounajed and another man picked up two Budget trucks that Fadi had arranged to rent. They drove the trucks to a factory in Campbellfield.
The following day, 12 January 2019, the Australian Border Force (‘ABF’) examined the container and found 10,714,000 cigarettes inside the container. The container was resealed and returned to the wharf for a ‘controlled delivery’ to the proposed recipient.
On 12 January 2019, a mobile phone number was activated in the name of the applicant’s wife.
Early on the morning of 14 January 2019, the applicant rented a truck. Later that morning, he met Fadi Mounajed at a property in Mickleham and drove away with him. The applicant then met a group of five men at the Campbellfield factory. Another man, El Houli, had hired these men to unpack the container on the basis that the applicant would pay them $100 each in cash. The applicant opened the factory gates, let the unpackers inside the factory, and left. The applicant’s truck was already inside the factory, along with a Budget truck.
The container was collected from the wharf at around midday and taken to a holding yard for delivery to the factory. Cube Logistics informed the applicant that the container would be delivered between 3:00 pm and 4:00 pm that day.
The container arrived at the factory at 3:54 pm. The applicant met the truck driver and guided the truck and the container into the factory.
The container was full of cardboard boxes containing cigarettes. The unpackers began loading the boxes onto pallets and placing the pallets into the back of the Budget truck. The applicant moved two boxes of cigarettes into a white van at the front of the factory. The van was registered in El Houli’s name. At this point, Ibrahim Mounajed asked the applicant, ‘What’s in the truck?’ The applicant replied, ‘Smokes’.
By late afternoon, the Budget truck had been loaded with 2,624,000 cigarettes and Fadi Mounajed drove it away from the factory. Approximately 20 minutes later he arrived at the Mickleham property, where he met an unknown person, gave them the keys and left.
Meanwhile, ABF officers forcibly entered the factory to execute a search warrant after the applicant had refused them entry. The unpackers told the ABF officers that the applicant was overseeing the unpacking. The applicant’s truck was present with its rear doors open.
During the execution of the warrant, the applicant refused to provide a PIN code to a mobile phone in his possession. That evening, he remotely wiped all information from the phone and the information on it could not be accessed.
On 22 February 2019, the ABF executed a further search warrant at the applicant’s house. They seized several items, including multiple packets of illicit branded cigarettes.
One of the applicant’s mobile phones was examined and found to contain a number of messages indicating his involvement in the importation and in the distribution of the illegal cigarettes, with requests from people for cigarettes and messages about prices of various imported cigarette brands.
In his record of interview, the applicant stated the following:
(a)He did not know what was in the boxes.
(b)He was going to get $200 in cash for the job.
(c)He got to the factory approximately half-an-hour before the ABF and was there to do manual labour.
(d)He did not recognise the name ‘Fadi Mounajed’ — the name of a contact on the phone whose number was activated in his wife’s name on 12 January 2019.
Fadi Mounajed pleaded guilty to one charge of conveying tobacco products, knowing the goods were imported with the intention to defraud the revenue. On 31 March 2021, he was sentenced to 20 months’ imprisonment, to be released immediately on a recognisance release order. In sentencing Fadi Mounajed, Judge Hassan described the importation scheme as a ‘very significant and serious criminal enterprise’.[2] However, her Honour characterised his role as ‘a confined one, as the driver on a single day’.[3] Her Honour stated that he was ‘not financially involved in the importation as such, but … took a fee of $5,000 to do what [he] did and that was the limit of [his] participation’.[4]
[2]Ibid [4].
[3]Ibid.
[4]Ibid.

Evidence on the plea

At the plea hearing, the applicant relied on the report dated 17 March 2022 by Luke Armstrong, psychologist, setting out his personal circumstances, including as to his family situation.
Based on the account given to him by the applicant, Mr Armstrong reported that:
(a)The applicant is the second youngest of eight siblings.
(b)His family experienced significant financial difficulty while he grew up. Following a back injury, his father was not able to work and was placed on a disability support pension.
(c)He has worked since the age of 12. His motivation in doing so has been to financially support his immediate family.
(d)From the age of 15, he witnessed one of his brothers develop a severe drug addiction. This had a catastrophic effect on the family.
(e)The applicant is a Muslim. However, when he met his wife she was not a Muslim and her parents did not support their relationship and subsequent marriage.
(f)His wife has not worked outside the home since the birth of their first child.
(g)The applicant is now the primary carer for his mother, who has ongoing medical conditions. This role requires him to shower, shop, conduct maintenance, translate for medical appointments and provide transport. The applicant’s siblings are only of limited support in the care of the applicant’s mother.
The applicant and his wife have five children. At the time of sentencing, the children were aged between seven and 14. One son has a chronic asthma-like condition. According to Mr Armstrong’s report, the applicant takes turns with his wife to supervise this son on a nightly basis. If this son wakes with an attack, it is necessary to elevate him so that he can breathe. Another son — the eldest child — has a heart defect which restricts his physical activity and requires visits to the Royal Melbourne Children’s Hospital from time to time.
Mr Armstrong summarised the applicant’s family circumstances as follows:
From observation today and corroboration gained via his wife, I can confirm that Mr El Masri is deeply connected to his wife and children. Mr El Masri accurately articulated that his oldest son is entering a sensitive developmental age. ‘He says he will be the man of the house if I get locked up, but he shouldn’t be thinking like that at his age’. Mr El Masri reports that separating from his son will be detrimental to his development and I would tend to agree. Mr El Masri has been such a significant figure in his son’s life, that any separation from his father would be detrimental to his development. I would extend this opinion to Mr El Masri’s remaining sons and his twins.
Mr El Masri personally runs and maintains his three businesses, all rely upon his actual presence and operation on a daily basis.
Mr El Masri’s family is understandably complex, I would venture to suggest that [his] family is in fact significantly fragile. Mr El Masri has a central role in both the material, logistical and emotional support of his immediate and extended family. It is my view that a sentence of incarceration would bring about both arduous suffering to [his] own mental health, in addition to the actual collapse of his family’s financial and emotional circumstances.
In a reference tendered on the plea, the applicant’s wife stated that the applicant attended appointments with the eldest child’s paediatric cardiologist as it was difficult for her to attend the Royal Melbourne Children’s Hospital with the other four children. She characterised the applicant as playing an ‘enormous role in the upbringing’ of the children and as the ‘sole bread winner’ of the family.
The applicant contends that the following circumstances of hardship to his family justify mitigation of the sentence:
•the applicant’s ‘enormous’ role in the upbringing of his children, and the fact that he is the sole breadwinner for his family;
•the need for him at home for the ongoing medical care of two of his sons;
•the lack of support from extended family, partly because of the applicant’s wife’s estrangement from her family;
•the applicant’s own role in supporting his parents despite his relatively junior position in the siblingship;
•the requirement that the applicant be present to maintain and run his three businesses which provide the sole family income;
•the outstanding mortgage on the family home of over $200,000;
•Mr Armstrong’s description of the probable consequences of the applicant’s imprisonment as the ‘actual collapse of his family’s financial and emotional circumstances’ and the impact of the applicant’s absence on his children’s development; and
•the applicant’s role as primary carer for his mother.

Reasons for sentence

The judge stated that, in sentencing crimes of this type (defrauding the revenue by smuggling cigarettes), general deterrence must be emphasised. These crimes are difficult to detect and offer not insignificant financial rewards. Important considerations in sentencing included the role of the offender, the sophistication (or otherwise) of the offending, the period over which the offences were committed, the quantity of tobacco imported, and the amount of duty evaded.[5]
[5]Reasons, [28]–[29].
The judge accepted the prosecution’s submission that the applicant had a ‘managerial role’ in relation to the container once it arrived in Australia.[6] However, he also accepted that the applicant’s involvement was not highly sophisticated and that he was not a controlling mind of the importation. His Honour considered that the applicant must have been taking instructions from others at some level.[7]
[6]Ibid [30].
[7]Ibid [34].
The judge found that the amount of duty evaded and the number of cigarettes imported was extremely large. He characterised the applicant’s offending as ‘a large-scale example of this sort of offending by any measure’[8] and accepted the prosecution’s submission that the applicant’s offending was a serious example of the offence.[9]
[8]Ibid [33].
[9]Ibid [35].
The judge considered that the applicant’s guilty plea two days after a sentence indication hearing could not be characterised as a guilty plea at the earliest opportunity. However, his Honour was nonetheless satisfied that the applicant’s plea was indicative of some remorse and showed a willingness to facilitate the course of justice. He found the utilitarian value of the plea to be substantial, particularly in light of the impact of the COVID-19 pandemic.[10] The judge also noted that the applicant had pleaded guilty notwithstanding his indication that an immediate prison sentence was inevitable and stated that, given these circumstances, the applicant should receive a significant sentencing discount for his guilty plea.[11]
[10]Ibid [37], citing Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[11]Reasons, [37].
The judge recorded that he had taken into account character references and letters of support tendered on behalf of the applicant.[12] The authors of these letters — the applicant’s wife, friends and other members of his community — described the role the applicant played in his family and community, and stated that his offending was out of character and that he was remorseful.[13]
[12]Ibid [60], [66].
[13]Ibid [61]–[65].
The judge gave specific attention to the requirement in s 16A(2)(p) of the Crimes Act to have regard to the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. However, as was the conventional understanding before the time of sentence, the judge stated that s 16A(2)(p) had to be ‘interpreted in line with the common law position that such hardship is only mitigating in exceptional circumstances’.[14] His Honour considered that cogent evidence of exceptional hardship occasioned by imprisonment was necessary, but that exceptional circumstances may be established by a combination of lesser hardships to multiple family members.[15]
[14]Ibid [71].
[15]Ibid [71]–[72].
The judge held that the factors relied upon by counsel for the applicant did not constitute exceptional circumstances. However, he was satisfied that these factors would substantially increase the burden and weight of the sentence of imprisonment he would impose, and that this was a significant mitigating factor.[16]
[16]Ibid [74].
The judge noted a prior conviction in 2012, but, given the time that had elapsed, did not regard it to be of any real significance to sentencing the applicant in the current case. However, the judge also observed that the applicant did not have the benefit of an unblemished history.[17]
[17]Ibid [77].
The judge took into account delay, noting that it had been over three years since the applicant had been arrested and charged. He accepted that the delay had caused the applicant a level of stress and anxiety, particularly because of the applicant’s concerns about the family’s financial position, and his children’s and mother’s health.[18] The judge also accepted that the applicant’s time in prison would be more onerous because of restrictions in prison in response to the COVID-19 pandemic.[19]
[18]Ibid [78]–[79].
[19]Ibid [80].
The judge found that the applicant had ‘good’ prospects for rehabilitation based on his solid employment record and the fact that he was a mature man in a stable relationship with support in the community, who had responsibilities to his children and every reason to avoid further offending. The applicant had, by his guilty plea, taken responsibility for his offending. He had no history of prior convictions indicating ongoing criminal activity.[20]
[20]Ibid [81].
However, in so finding, the judge noted that there was ‘cause for caution’ in that, in deciding to offend, the applicant ‘saw a chance to make money and engage in this serious offending’.[21]
[21]Ibid [82].
The judge confirmed that he had had regard to comparative cases referred to on the plea, and in a table tendered by the prosecution on the plea.[22]
[22]Ibid.
The judge concluded that, given the considerations of general deterrence, adequate punishment and denunciation, the only appropriate sentence was one of immediate imprisonment. However, the applicant would be released on a recognisance release order because of the significant sentencing discount for the guilty plea, the delay and the fact that the sentence of imprisonment — which would be the applicant’s first — would weigh heavily on the applicant.[23]
[23]Ibid [85]–[87].

The judge noted that the applicant’s role in the importation scheme was much more significant than Fadi Mounajed’s, and so justified a longer period of imprisonment than that imposed on Fadi Mounajed, effective immediately.[24]
[24]Ibid [88].

Ground 1 — family hardship

Section 16A(2)(p) of the Crimes Act provides:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
The applicant submits that the judge erred by not taking into account probable hardship to his family arising from him being sentenced to a term of immediate imprisonment. This error flowed from the judge’s statement that ‘the common law position is that such hardship is only mitigating in exceptional circumstances’ was applicable to s 16A(2)(p) of the Crimes Act.
So much was conceded by the Crown, although no criticism can be made of the judge. The common law requirement for family hardship to be ‘exceptional’ was routinely applied before the time of sentencing. However, just before the imposition of the sentence, the New South Wales Court of Criminal Appeal handed down its decision in Totaan v The Queen,[25] holding that there is no textual support in s 16A(2)(p) for the proposition that the circumstances of hardship must be exceptional.
[25](2022) 108 NSWLR 17; [2022] NSWCCA 75 (‘Totaan’).
In Mohamed v The Queen,[26] this Court stated that the principle that an intermediate appellate court should not depart from an interpretation placed on uniform national legislation by another intermediate appellate court unless convinced that interpretation is plainly wrong governed its consideration of what is required to establish family hardship under s 16A(2)(p) of the Crimes Act.[27] The Court accepted the concession by the Commonwealth Director of Public Prosecutions that it should adopt the interpretation of s 16A(2)(p) in Totaan, as it was not plainly wrong.[28]
[26](2022) 367 FLR 482; [2022] VSCA 136 (‘Mohamed’).
[27]Ibid 499 [90] (Maxwell P, Emerton and Sifris JJA), citing Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
[28]Mohamed (2022) 367 FLR 482, 499 [91], [93] (Maxwell P, Emerton and Sifris JJA); [2022] VSCA 136. This Court considered a similar concession by the Crown in Rodgerson v The Queen [2022] VSCA 82 ‘appropriate’: at [109]. See also Rodgerson v The Queen [No 2] [2022] VSCA 154, [73] (Emerton P, Kyrou and T Forrest JJA).
The applicant has therefore established that the court below should have taken into account his family hardship, even if it did not rise to the level of exceptional hardship.
However, the respondent argues that, pursuant to s 281 of the Criminal Procedure Act 2009, aside from demonstrating error, the applicant must also demonstrate that a different sentence should be imposed. According to the respondent, even without the threshold requirement of ‘exceptional circumstances’, probable family hardship will not necessarily warrant a reduction in sentence, or at least not to any great extent. This is because of the need to give due weight to other factors, such as the need for adequate punishment, denunciation, and general and specific deterrence. The respondent submits that the extent of the reduction, if any, must depend on all the circumstances of an individual case.
In relation to family hardship, the applicant relies on the material tendered on the plea and two affidavits filed in the application for leave to appeal:
(a) the affidavit of Jamilla El Masri sworn on 17 April 2023; and
(b) his own affidavit sworn on 17 April 2023.
Mrs El Masri deposes that the applicant was the sole bread-winner of the family and was a central support to their children and his mother. Since his incarceration the family has suffered. She has five children, one of whom has a respiratory condition. In relation to this, Mrs El Masri states:
He suffers from severe asthma and during the winter months the condition worsens. Last winter there were instances when I could not take him to the hospital when his asthma was bad, due to me needing to look after the other children, so I would prop his chest up with pillows in my bed. He would have to sleep sitting up, with me watching over him during the night.
Mrs El Masri deposes that she is estranged from her family and receives no help from anyone when it comes to looking after the children. Furthermore, she states:
We have been struggling financially without my husband. I do not work, and am the recipient of Family Tax Benefits A and B and the Jobseeker payment — which totals approximately $1900 a fortnight. This money needs to cover our family’s house mortgage, as well as the other general living expenses which come with having a family with five children. Money is extremely tight, and as mentioned above, our oldest son Mohamed, 16, works part time help make ends meet.
According to Ms El Masri, the eldest child is working two jobs outside of school hours to help ease the financial difficulties. And then there is the applicant’s mother, who requires special care:
I have also taken over looking after his mother, Fatima, who is in her late 60s (“my husband’s mother”). My husband’s mother suffers from a myriad of health issues that impact her mobility, including varicose veins and arthritis. Two weeks out of every month she stays with us at our home so I can look after her. This includes taking her to monthly doctors appointments with her General Practitioner. Although my husband has other siblings, they are either unwilling or unable to help with their mother. My husband was the one who looked after her, and now that he is incarcerated it falls to me.
All of this, Mrs El Masri states, is having an adverse impact on her enjoyment of life and her mental health.
For his part, the applicant deposes to conditions in prison and to concerns he holds about his health, which are being left uninvestigated. Relevantly to the question of family hardship, the applicant deposes that his eldest son has taken two part-time jobs and that he did not want this for his children as he had been held back academically by starting work. He also states that he used to look after his mother by showering and dressing her, and taking her to doctors’ appointments. So far as he is aware, his siblings have not helped his mother.

Discussion

It may be accepted that Mr El Masri’s imprisonment, and the resulting absence of his financial support as well as the care he gave to family members, is placing a burden on his family, especially his wife Jamilla. As this Court said in Mohamed, impacts of this kind on an offender family are the inevitable corollary of the offender’s having been found guilty of a serious crime and sentenced to a term of imprisonment.[29] That is not to say that they carry no weight in the sentencing synthesis. Indeed, sometimes the implications of incarceration for family members are so significant that they will weigh heavily in the sentencing calculus.[30]
[29](2022) 367 FLR 482, 500 [99] (Maxwell P, Emerton and Sifris JJA); [2022] VSCA 136.
[30]Ibid.
In this case, they do not weigh heavily. First, the hardship described, if accepted at face value, while no doubt distressing to family members, is relatively minor. Secondly, various forms of hardship are asserted, but only thinly substantiated by the evidence:
(a)There is no evidence supporting the claims of financial hardship. There is no formal evidence of the family’s financial circumstances, including the extent of the financial difficulties asserted. Nothing is said about the applicant’s businesses. Nor is the issue addressed as to whether the applicant’s immediate family can provide any financial support.
(b)The only evidence about the medical conditions of the applicant’s children was a brief letter tendered on the plea in relation to the heart condition of the eldest son. That letter did not raise any cause for immediate or future concern and indicated only that surveillance of the condition be undertaken in three years. Indeed, nothing is said about the health of the eldest child in Mrs El Masri’s affidavit. The third son, Ibrahim, suffers from asthma, but apparently not so severely as to warrant documented treatment.
(c)The letter tendered outlining the applicant’s mother’s health issues is very brief. Apart from references in the applicant’s affidavit to showering and dressing, and taking her to doctors’ appointments and shopping, there is no cogent evidence to explain the extent of care the applicant’s mother requires, or the precise level of care she had been receiving from the applicant. As the judge noted, there is no evidence about whether others could assume responsibility for her care.[31] In this regard, we note that the applicant’s mother resides with his brother two weeks out of every month and has seven other children who may be able to assist her.
[31]Reasons, [70].
In our view, in the present case, the implications of incarceration for family members are not so significant that they should attract a discernible sentencing discount. The other sentencing considerations arising from the nature and seriousness of the offending weigh much more heavily. In the context of comparative sentences for this type of offending, the recognisance release period set, even taking into account modest family hardship, was well within the range of appropriate sentences for offending of this nature.
While ‘exceptional’ hardship was not required to be established, taking into account the family hardship put before us does not appreciably change the balance in the sentencing synthesis. In our view, there is no reasonable prospect that this Court would reduce the total effective sentence imposed by the judge.
Leave to appeal on ground 1 is refused.

Grounds 2 and 3 — manifest excess

In oral argument, counsel for the applicant confirmed that Ground 2, which alleges error in the judge’s failure to find the applicant’s prospects of rehabilitation to be ‘excellent’, was really a part of Ground 3, which alleges that that the custodial sentence of 18 months is manifestly excessive.

Submissions

The applicant submits that it was not open to the judge to require the applicant to serve 18 months’ imprisonment before release on recognisance in light of the following circumstances:
(a)The applicant’s role was managerial, and not that of a principal. His role was confined to having oversight of unloading the container.
(b)The offending occurred over a short period and involved one importation.
(c)Although the judge accepted that the applicant was motivated by a financial reward, he accepted that the applicant would not receive any profits directly from the sale of the cigarettes.
(d)The applicant’s plea of guilty had substantial utilitarian value. That value was heightened because the applicant entered his plea at a time when the COVID-19 pandemic was having a profound impact on the administration of justice.
(e)The applicant expressed remorse through his guilty plea and willingness to assist investigators. He had also expressed remorse to his wife, friends and members of his community.
(f)The applicant’s criminal history was very limited and dated. The judge accepted it to be not of ‘any real significance’.[32]
(g)The probable effect of hardship on the applicant’s wife, children and mother, as advanced under Ground 1.[33]
(h)The subjective burden of the sentence on the applicant because of the hardship to his family arising from the sentence. The judge concluded that the weight of the matters described under Ground 1 would substantially increase the applicant’s burden of custody, particularly given that it was the applicant’s first sentence of imprisonment.
(i)There had been a delay of over three years between the charge and the sentence, during which time the applicant had experienced stress and anxiety arising from the possibility of imprisonment and its impact on his family. The applicant did not commit any offences in those three years.
(j)The applicant’s time in custody has been more onerous because of restrictions imposed in prison in response to the COVID-19 pandemic.
(k)The judge assessed the applicant’s prospects of rehabilitation to be good.
(l)The applicant had a solid employment record.
(m)The applicant was of good character. He had also contributed to his community through his volunteer involvement in fundraising events and at a multi-cultural youth centre that provides rehabilitation services and promotes anti-extremism.
[32]Citing ibid [77].
[33]See above [44]–[55].
The applicant submits that the comparable cases do not support the sentence imposed. He argues that the cases the prosecution drew to the judge’s attention were largely concerned with sentences imposed on principal offenders, or concerned a plea of not guilty.[34] Other cases involved sentences imposed for pleas of guilty without the palpable discount for a sentence given in the current circumstances of COVID-19.[35]
[34]Citing Al Mahmoud v DPP (Cth) [2021] VSCA 240, [41] (Priest and Niall JJA) (‘Al Mahmoud’); Jabal v DPP (Cth) [2021] VSCA 33, [22] (‘Jabal’); Barakat v DPP (Cth) (2020) 284 A Crim R 149, 162 [63] (Niall JA) (‘Barakat’); [2020] VSCA 185; R v Medalian (2019) 133 SASR 50, 55 [23] (Bampton J); [2019] SASCFC 40 (‘Medalian’); Young v The Queen [2016] VSCA 149 (‘Young’).
[35]Citing R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299 (‘Saleh’); Hussein v The Queen [2016] VSCA 212 (‘Hussein’).
By way of contrast, the applicant refers to Director of Public Prosecutions (Cth) v Nassar,[36] a case in which — according to the applicant — the mitigatory factors were very similar to his own, but the offender’s role and financial benefit were greater.[37] The offender in Nassar was sentenced to three years’ imprisonment with a recognisance release order for immediate release and a fine of $65,000.
[36][2022] VCC 387 (‘Nassar’).
[37]Citing ibid [6], [9].
Furthermore, as discussed, the applicant submits that the judge erred in finding that the applicant’s prospects of rehabilitation to be merely ‘good’.[38] He contends the only conclusion open on the evidence was a finding that the applicant’s prospects of rehabilitation were excellent. In support of this proposition, the applicant relies on essentially the same matters as those enumerated above.

Discussion

[38]Quoting Reasons, [82].

In our view, it was open to the judge in the circumstances to exercise caution and assess the applicant’s prospects of rehabilitation as less than excellent, given the serious nature of the offending, the integral role played by the applicant in the offending, his preparedness to take a significant risk despite his family circumstances, and his ultimate motive for the offending, being monetary reward.
As to the sentence overall and the pre-release period in particular, we consider that it was within the range for the offending. The offending was serious example of conduct contrary to s 233BABAD of the Customs Act1901 (‘Customs Act’), and it was offending that that demanded that general deterrence be given considerable weight in the sentencing synthesis. The following factors are significant:
(a)The applicant imported 10,714,000 cigarettes.
(b)The duty evaded ($8,648,983.64), as the judge found, was ‘extremely large’.[39] His Honour was correct to describe the offending as ‘a large-scale example of this sort of offending’.[40]
(c)The applicant’s role in the importation was integral. He performed a ‘managerial role’,[41] controlling the unloading of the container after it arrived in Australia. His role, as the judge found, ‘included planning, premeditation, organisation, and the deployment of resources’.[42] He organised and promised to pay a number of other men for their help to unload the container.[43]
(d)The applicant’s prior character was not unblemished, as he had two prior convictions for dishonesty-related offences.
(e)The applicant did not initially cooperate with police. He refused to provide the ABF with a PIN to access one of his phones. He later remotely wiped all data from the phone so that investigators could not access it. He gave a largely untruthful record of interview.
[39]Ibid [33].
[40]Ibid.
[41]Ibid [30].
[42]Ibid [34].
[43]Quoting ibid [34].
The maximum penalty for an offence under s 233BABAD is 10 years’ imprisonment. Section 233BABAD replaced offences with maximum penalties of only two years’ imprisonment and was introduced to provide a stronger deterrent. This is of considerable importance in assessing the objective seriousness of the offending and indicates the importance that Parliament placed on deterring this kind of offending.[44]
[44]Hussein [2016] VSCA 212, [31] (Priest JA).
As general deterrence is such an important sentencing consideration, factors such as prior good character and age will be afforded less weight than might otherwise be the case. Serious examples of offending under s 233BABAD(1) are sufficiently grave as to warrant a sentence of imprisonment.
Consideration of comparable cases shows the 18 month custodial component of the sentence to be within the range:
(a)In Barakat,[45] the offender pleaded guilty to one rolled-up charge of importing tobacco contrary to s 233BABAD(1) of the Customs Act. The charged acts were three individual importations. The duty payable was $3,967,334.40. The offender pleaded guilty far earlier than the applicant. He was a principal offender. He did not have any prior convictions and his prospects of rehabilitation were regarded as excellent. Significant weight was given to the delay of nearly five years between the offending and sentencing. This Court allowed his appeal against sentence and resentenced him to 3 years and 3 months’ imprisonment with a non-parole period of 2 years.
(b)In Al Mahmoud,[46] the offender pleaded guilty to importing molasses tobacco (3,994.61 kg) and possessing 37.849 kg of water-pipe tobacco and 9,586 cigarettes. The amount of duty payable with respect to the molasses tobacco was $3,613,736.11. The amount of duty payable with respect to the water-pipe tobacco and cigarettes was $41,503.15. The sentencing judge sentenced the offender to 3.5 years’ imprisonment with a non-parole period of 24 months. This Court dismissed an appeal against sentence.
(c)In Jabal,[47] the offender pleaded guilty to importing 3,245 kg of molasses tobacco. The duty payable was $2,754,226.20. He played a similar role in the importation to the applicant in this case. He had quite a severe psychiatric and substance abuse problem. He was sentenced to 2 years and 9 months’ imprisonment, to be released on recognisance after serving 15 months. This Court refused an application for leave to appeal against sentence.
[45](2020) 284 A Crim R 149; [2020] VSCA 185.
[46][2021] VSCA 240.
[47][2021] VSCA 33.
The case relied upon by the applicant, Nassar, involved the immediate release of the offender. However, the sentencing judge in that case stated that the sentence he imposed could not ‘be seen as a guide to other sentences’.[48] This was partly because of the existence of ‘the enormous delay’ of almost seven years,[49] approximately double the delay in the current case.
[48]Nassar [2021] VCC 387, [38].
[49]Ibid.
Grounds 2 and 3 are not made out. Leave to appeal on these grounds is refused.

Conclusion

Leave to appeal is refused.
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[2023] VSCA 93

28 April 2023