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Hussein v The Queen

Hussein v The Queen

Case [2016] VSCA 212 7 September 2016

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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…

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 Hussein v The Queen

Details

AGLC: Hussein v The Queen [2016] VSCA 212
Case: [2016] VSCA 212
Decision Date: 7 September 2016

CaseChat Overview and Summary

The case of Hussein v The Queen involved the applicant appealing against a sentence imposed for attempting to possess smuggled tobacco and defrauding the revenue. The sentencing judge had imposed a sentence of imprisonment for two years and six months, with release on recognizance after 12 months. The applicant argued that the sentencing judge had failed to give proper consideration to certain mitigating factors, denied the applicant procedural fairness, and mischaracterised the applicant’s role in the offence. The applicant sought leave to appeal the sentence.

The legal issues before the court were whether the sentencing judge had denied the applicant procedural fairness and whether the sentencing judge had mischaracterised the applicant’s role in the offence. The applicant argued that the sentencing judge had failed to give proper consideration to the mitigating factors, including the applicant’s background and the role of others in the offence. The applicant also argued that the sentencing judge had mischaracterised the applicant’s role in the offence, downplaying the applicant’s involvement. The applicant contended that the sentence was manifestly excessive and should be set aside.

The court found that the sentencing judge had considered the mitigating factors and had not denied the applicant procedural fairness. The court held that the sentencing judge had not mischaracterised the applicant’s role in the offence. The court found that the sentence was not manifestly excessive and that there was no error in the sentencing process. The court therefore refused the applicant’s application for leave to appeal the sentence.

The court held that the sentencing judge had not denied the applicant procedural fairness or mischaracterised the applicant’s role in the offence. The court found that the sentence was not manifestly excessive and that there was no error in the sentencing process. The court refused the applicant’s application for leave to appeal the sentence.

Orders