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El Masri v The King

El Masri v The King

Case [2023] VSCA 93 28 April 2023

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El Masri v The King

Details

AGLC: El Masri v The King [2023] VSCA 93
Case: [2023] VSCA 93
Decision Date: 28 April 2023

CaseChat Overview and Summary

In El Masri v The King, the appellant, Mr El Masri, appealed against the sentence imposed by the County Court of Victoria. He was convicted for importing tobacco with the intention to defraud the revenue, under the Customs Act 1901 (Cth) and Crimes Act 1914 (Cth). The primary legal issue before the court was whether the sentence was manifestly excessive. The court was also required to determine whether the sentencing judge had failed to take into account relevant considerations, including family hardship, and whether the sentence was within the appropriate range.

The Court of Appeal considered the totality of the sentence imposed, which was a total effective sentence of three years, with Mr El Masri to be released after serving 18 months, on the condition of good behaviour for 18 months and the payment of a $2,000 recognisance. The court acknowledged the Crown’s concession that family hardship had not been adequately considered by the sentencing judge. However, the court held that this did not result in an appreciable change to the balance of the sentencing synthesis, as the prospects of rehabilitation were deemed good but not excellent, and general deterrence was the primary sentencing consideration. The court also noted that the sentence was within the range of sentences typically imposed for such offences.

The Court of Appeal held that the sentence was not manifestly excessive and refused leave to appeal. The court concluded that the sentencing judge had appropriately balanced the relevant considerations and that the sentence was proportionate to the offence committed. The court further found that the prospects of rehabilitation, while good, did not warrant a more lenient sentence, and that the primary consideration of general deterrence was adequately addressed. Consequently, the Court of Appeal dismissed the appeal and upheld the sentence imposed by the County Court of Victoria.

Orders