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…
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- AGLC
- Hussein v The Queen [2016] VSCA 212
- Case
- [2016] VSCA 212
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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