Hussein v The Queen
[2016] VSCA 212
•7 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0114
| KHALED HUSSEIN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 September 2016 |
| DATE OF JUDGMENT: | 7 September2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 212 |
| JUDGMENT APPEALED FROM: | DPP v Khaled Hussein (Unreported, County Court of Victoria, Judge Coish, 29 April 2016) |
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CRIMINAL LAW — Sentence — Application for leave to appeal — Attempting to possess smuggled tobacco — Defrauding the revenue — Sentence of imprisonment of two years and six months, with release on recognizance after 12 months — Whether sentencing judge denied the applicant procedural fairness — Whether sentencing judge mischaracterised the applicant’s role — No error established — Sentence not manifestly excessive — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC | Stephen Andrianakis & Associates |
| For the Crown | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA:
Introduction
On 21 April 2016, the applicant pleaded guilty in the County Court to one charge that at Melbourne, on or about 29 August 2013, he ‘did attempt to commit an offence against s 233BABAD(2) of the Customs Act 1901 (Cth) in that he did attempt to possess goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue’. The maximum penalty for the offence is imprisonment for ten years.[1]
[1]See Criminal Code (Cth), s 11.1(1); Customs Act 1901 (Cth), s 233BABAD(4). The offence is also punishable by a fine that is worked out in accordance with the formula in s 233BABAD(5).
Following a plea in mitigation, on 29 April 2016 the judge sentenced the applicant to imprisonment for two years and six months. It was ordered that the applicant be released after serving 12 months of the sentence upon entering into a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $5,000 to be of good behaviour for two years and six months.
The applicant seeks leave to appeal against the sentence on a ground that asserts that ‘the sentence imposed in all of the circumstances is manifestly excessive’.[2]
[2]Two further grounds were abandoned. They were:
1. The sentencing judge erred in finding that the applicant’s ‘explanation and account … in your record of interview to be most improbable’ in circumstances where the sentencing judge failed to provide an opportunity for the applicant to contest such a finding.
2. The sentencing judge erred in finding that the applicant ‘was acting for financial gain’ and not simply providing a ‘contract of service’ for small monetary reward.
For the reasons that follow, I would refuse the leave sought.
The offending
David Keefer, the applicant’s co-accused, is the sole director of ‘Dezign For Lifestyle’ (‘Dezign’).
On 13 August 2013, customs broker Priority Cargo Australia received documentation in relation to the importation of a shipping container (‘the container’), the consignee being Dezign. The consignor was a company in China, and the packing list for the container listed the contents as 600 cartons of ‘couched closet (toilet)’.
Keefer told the customs broker that the contents of the container consisted of ceramic toilets with plastic seats. The contents were thus entered under a Tariff Class which gave a duty payable rate of five per cent, the duty payable accordingly being calculated at $7,388.78.
On 19 August 2013, the applicant telephoned Keefer, using a pre-paid telephone registered in the name Paul March. The next day, Keefer emailed Priority Cargo Australia to enquire when his next container was arriving. He was told that it would arrive on 23 August. On 23 August the container arrived. Keefer that day made one telephone call to the applicant, and received seven telephone calls and two text messages from him.
A few days later, on 26 August 2013, Australian Customs and Border Protection Service (‘ACBPS’) officers commenced an examination of the container. They found that the front rows of the container comprised 25 boxes containing ceramic toilets and cisterns, and 14 empty boxes. Behind the boxes, however, were 340 bales of tobacco leaf, the total weight of which was 17,009 kilograms. The tobacco bales were removed and the container was repacked with the boxes of toilets, together with pallets of bricks as ballast, and it was then returned to the wharf. At the date of the importation, the duty rate for unmanufactured tobacco was $446.65 per kilogram. Thus, the total duty sought to be evaded was $7,597,069.80, together with GST of $759,706.98, making a total of $8,356,776.78.
On 29 August 2013, the applicant went with Mustafa Armoush and Mohammad Hammoudeh to Budget Car and Truck Rental in Hoppers Crossing in order to rent two trucks. That same day the container was delivered to the car park attached to Dezign. At about 5.15pm a person named Kevin Galgey entered the car park. Galgey later got into a black Mitsubishi Pajero registered to the applicant. Around the same time, at 5.13pm, Galgey made a telephone call to Keefer. The applicant also made several calls to Keefer on that day.
The next day, 30 August 2013, ACBPS officers executed a search warrant at Dezign. They found the container to be present, and observed that the contents had been removed and placed on the ground nearby.
A little over a month later, on 4 October 2013, ACBPS officers executed search and seizure warrants at National Storage, Hoppers Crossing, on lockers rented by the applicant. The lockers were, however, largely empty, save for the remnants of tobacco leaf, packing straps, hessian bags and a broom.
On 27 March 2014, the applicant took part in a recorded interview with ACBPS officers. He said that he had been offered $1,500 to unload a container by a man named ‘John’, whom he knew from Laverton Market. The applicant had asked Galgey — whom he described as a customer of a tobacconist gift shop formerly owned by the applicant — and Armoush and Hammoudeh to assist with the unloading. The applicant denied knowing Keefer. He told officers that he did not know what was in the boxes and that he did not open the boxes. The applicant said that if he had known it was tobacco he would not have gone there. He said he had expected to be unloading boxes. When he found out that there were bricks in the container, he told John this, and John said that he had received a wrong container. The applicant told officers that, as a result, he left everything there and told everyone to head home. He said that he saw John the next day at the market and told him that there were bricks in the container. John said there had been a mistake and he had received the wrong container. The applicant also told officers that he was paid $1,500, even though the container had not been unloaded.
Some months later, on 14 August 2014, the applicant participated in a further recorded interview. He said that he did not have John’s number and that he saw him the next day at the market. The applicant also stated that he had been paid the $1,500 in advance. He said that he did not know Keefer.
As I have mentioned, the total revenue evaded — duty and GST — was a total of $8,356,776.78.
The applicant’s personal circumstances
The applicant was born in Australia on 21 October 1979, and is aged 36 years.
He migrated to Lebanon in 1991, but struggled at school. After three years, he returned to Australia. The applicant left school at Year 10 level, and worked in a family member’s fish and chip shop for six years. At age 19, the applicant married, although he and his wife are separated. There are four children of the marriage.
The applicant bought the family member’s fish and chip shop business in 1999 and ran it for about five and a half years, eventually selling it at a loss. The applicant then purchased another fish and chip shop in Geelong, which he ran for a further five years.
In 2012, he purchased a tobacco shop in Colac, which he subsequently sold. He also purchased tobacco shops in Bairnsdale and Sale, but has sold all of these businesses and distanced himself from the tobacco industry.
The applicant has two subsequent convictions. At Colac Magistrates’ Court, on 28 January 2014, he was convicted of several offences committed on 15 October 2012, including selling tobacco not properly labelled; knowingly possessing smuggled goods; knowingly possessing excisable tobacco products; failing to display a health warning sign; failing to have a sign prohibiting sale of tobacco to persons under 18 years; displaying three hookahs for sale; and displaying bong components in a retail outlet. On seven charges, he was convicted and fined an aggregate of $3,000. Further, at the Bairnsdale Magistrates’ Court, on 11 February 2015, he was convicted and fined an aggregate amount of $1,000 on the charges of displaying an ice pipe at a retail outlet and displaying a bong component in a retail outlet.
The sentence is not manifestly excessive
In support of the submission that the sentence is manifestly excessive, the applicant relies on the following ‘particulars’:
(a) Plea of guilty;
(b) Finding that the applicant was remorseful;
(c) Severely disrupted educational history;
(d) Demonstrable ability to work hard and operate small businesses and be a productive member of the community;
(e) Good father of four children aged between 14 and years [sic.] of age;
(f) Significant delay;
(g) Limited prior history;
(h) First term of imprisonment;
(i) Acceptance that imprisonment would be more burdensome for the applicant because of his fragile mental health.
Before turning to the submissions advanced by the applicant’s counsel in this Court, it is necessary to say something of how the respective cases were put to the sentencing judge.
The prosecutor having opened generally, the sentencing judge asked her whether she wanted to ‘clarify’ the applicant’s role. In response to the judge’s enquiry, the prosecutor said that:
the Crown accepts that the [applicant] was not involved in the importation, but of course by virtue of his plea he accepts that he attempted to possess the goods, namely tobacco products, knowing that the goods, the tobacco products, were contained in the container and were imported with intent to defraud the revenue. … The Crown submits that even though he wasn’t the importer, he still played a very significant role in liaising with the importer, unpacking the goods, renting trucks to transport the tobacco.
Further, the prosecutor submitted that, as part of his significant role, the applicant was ‘liaising and communicating with the importer’. The prosecutor pointed out that the applicant had purchased a pre-paid mobile phone in the name of ‘March’ on 26 June 2013, and used it to telephone and message Keefer. Moreover, the applicant had hired two trucks and enlisted others to help him unload the tobacco. It was put that the applicant had co-ordinated the unpacking of the tobacco and its subsequent transportation. The prosecution also put that ‘the person organising the importation is Keefer’.
Notwithstanding the manner in which the prosecution had put its case against his client, the applicant’s counsel, as part of his plea, advanced submissions concerning his client’s ‘limited role’, which counsel characterised as ‘a contract of service’. The judge was then prompted to ask whether he took issue ‘with the steps identified by the prosecutor in terms of role’. Counsel said that he was not going to ‘take issue with the steps identified by the prosecutor in terms of role’, or dispute the communications with Keefer, although he submitted:
What we say about those, Your Honour, is that if somebody is arranged to provide the service of unpacking a container and transporting it, they’ve got to be in contact with somebody up the chain to know when that container is going to arrive, where it’s going to be and where it needs to be transported to. … So that communication is, in my submission, completely consistent with the role of providing the contract service of unpacking and transporting of the tobacco once it arrives in this country.
The applicant’s counsel submitted in the written case that, given the applicant’s ‘limited role in the offending, and the fact that he was not to be a significant financial beneficiary but, instead, someone who was engaged simply to assist with the unpacking of the container then the sentence is simply too long’. It was submitted that there is no evidence that the applicant was aware of, or had a belief as to — let alone any actual knowledge of — the significant amount of tobacco in the container. His role, so it was argued, was limited to involvement at a ‘low level’. Furthermore, the applicant’s plea of guilty was significant, and his admissions formed a significant part of the case against him. In light of existing current sentencing practices for the offence, a compelling and powerful subjective case and his limited role, the sentence imposed was outside the range of what was reasonably open in light of the circumstances of the offence and offender.
In contending that the sentence was not manifestly excessive, it was submitted for the respondent that the judge took into account, and gave adequate weight to, the various mitigating factors put on the applicant’s behalf. The judge accepted that the applicant had entered a plea of guilty at the earliest reasonable opportunity and was genuinely remorseful for the offending, and that there had been a significant delay in the matter being finalised, during which the applicant had taken steps to rehabilitate himself. It was argued that the judge took into account the applicant’s personal circumstances and history; his reasonable prospects of rehabilitation; and the fact that imprisonment would be likely to exacerbate his symptoms of depression. The sentencing judge also sensibly moderated the weight to be given to specific and general deterrence as a result of the applicant’s circumstances. In that regard, I note that a forensic psychiatrist, Dr Nina Zimmerman, had provided a report on the applicant’s condition, in which she concluded that a term of imprisonment ‘would weigh more heavily on [the applicant] in that it is likely to exacerbate his symptoms of depression’; and that the judge, in his reasons for sentence, made clear that he considered the fifth principle enunciated in Verdins[3] to have been enlivened.
[3]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
The respondent submitted that the offence was one against the revenue, and should thus be seen in the context of taxation frauds and similar offences. The need to protect the revenue was a significant consideration. General deterrence was particularly important given the amount of duty and tax avoided and the scale of the criminal enterprise.
In his reasons for sentence, the judge observed that the applicant was acting for ‘financial gain’. And he said:
Given the amount of tobacco and quantity of revenue evaded I find the objective seriousness of this offence was high. Your actions were pre-meditated. They did involve substantial planning and more than merely unpacking a container. I find the explanation and account you provided in your record of interview to be most improbable.
Although the sentencing judge did not assay the level of financial gain, in my view, given the steps taken by the applicant, it is unlikely that his financial gain was to be as insignificant as $1,500. Having regard to the very large quantity of tobacco involved, and the concomitant risks to the applicant, it might readily be inferred that he was to derive a substantial financial reward. Certainly, it was open to the judge to find that the applicant acted for financial gain, and to infer that the financial gain exceeded what had been suggested by his counsel on the plea.
In my opinion, the applicant’s contention that the sentence imposed is manifestly excessive cannot be sustained. The maximum sentence for the present offence is ten years’ imprisonment. As R S Hulme AJ pointed out in Saleh,[4] it is significant that the section under which the applicant was charged, s 223BABAD, was introduced in 2012 to specifically deal with the smuggling of tobacco products. In practical terms, the new section effected a fivefold increase in the applicable maximum penalty when compared with the general offences under the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) which previously were relied upon in prosecuting illegal tobacco importation. The maximum penalty is calculated to provide a strong deterrent to those connected with the illegal smuggling of tobacco, whether by its importation or possession. Thus, in my view, it is necessary to give the consideration of general deterrence significant weight when imposing sentence upon the applicant.
[4]R v Saleh [2015] NSWCCA 299, [32] (‘Saleh’). See also Young v The Queen [2016] VSCA 149, [121] (‘Young’).
Furthermore, it is an element of the offence under s 233BABAD(2) that, when a person has in his possession goods that are tobacco products, ‘(c) the person knows that the goods were imported with intent to defraud the revenue’. By pleading guilty to the offence of attempted possession, therefore, the applicant admitted that the tobacco he attempted to possess was imported with that intent. Hence, in my opinion it is correct, generally speaking, to equate an offence under s 233BABAD with other offences involving defrauding the revenue, such as taxation and like offences.[5] Again, it might be seen that in such circumstances general deterrence must be given significant weight.
[5]Saleh, [9] (Beech-Jones J), [37]–[43] (R S Hulme AJ). See also Young, [124].
The applicant’s was a serious example of the offence. In total, the revenue
evaded was $8,356,776.78, representing 17,009 kilograms of unlawfully imported tobacco. Moreover, although his role may not have extended to involvement in the actual importation of the tobacco, the applicant’s role in unpacking and transporting the container of imported tobacco was an active one, involving substantial planning and premeditation. To perform his role, the applicant purchased a pre-paid mobile telephone; liaised closely with the importer, Keefer, by telephone and text messages; hired two trucks; and enlisted others to unload and transport the tobacco. And as I have said, it can be inferred that the applicant committed the offence for financial gain.
Inevitably, an appellate court’s assessment of whether a sentence is manifestly excessive — a contention which is difficult to make good — involves the court synthesising for itself all factors relevant to the imposition of sentence, including those relating to the offender and to the offence. Balancing the circumstances of the offence and the mitigating features — including the early plea of guilty, remorse, delay (and rehabilitation) and Verdins considerations — I am far from being persuaded that the sentence can accurately be said to be manifestly excessive.
Conclusion
The application for leave to appeal against sentence must be refused.
SANTAMARIA JA:
I agree.
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