Majid Jabal v Director of Public Prosecutions (Cth)
[2021] VSCA 33
•26 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0200
| MAJID JABAL | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 26 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 33 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1222 (Judge O’Connell) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Single charge of importing tobacco products with intention of defrauding revenue – Sentenced to 2 years, 9 months to be released after 15 months subject to recognisance of $3,000 and good behaviour for 18 months – Whether sentence manifestly excessive – Serious offending – Leave refused – Barakat v Director of Public Prosecutions (Cth) [2020] VSCA 185 considered.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances. |
NIALL JA:
The applicant pleaded guilty before a judge of the County Court to a single charge of importing tobacco products with the intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) and s 11.2A of the Criminal Code (Cth). Following a plea in mitigation, the applicant was sentenced to a term of imprisonment of two years and nine months. He was ordered to be released after serving 15 months of the sentence subject to entering into a recognisance in the sum of $3,000 to be of good behaviour for 18 months. The maximum penalty prescribed for the offence is 10 years’ imprisonment, a fine not exceeding the amount calculated under s 233BABAD(5), or both.
The applicant seeks leave to appeal on the single ground that the sentence imposed is manifestly excessive.
The circumstances of the offence
The facts on which the plea proceeded were set out in a summary of prosecution opening. They were summarised by the judge and the following is taken from his reasons for sentence.
On 23 July 2017, a 12 m long shipping container arrived in Melbourne. The import declaration form identified the importer as ‘Amsterdam Import Pty Ltd’, the sole director of which was Ahmed Al-Shammari, also known as Khalid Zabid. On 1 August 2017, Australian Border Force (‘ABF’) officers examined the container. The container concealed 540 cartons and five loose packets of molasses tobacco under the brand ‘Al Fakher’. Mr Al-Shammari was later charged in relation to the importation but that charge was discontinued when the applicant pleaded guilty and took sole responsibility for the importation.
Approximately a week before the contraband was located, the applicant attended the office of a customs broker, ‘Success Logistics’, and provided documentation including the bill of lading, packing declaration, invoice packing list and delivery authority. The applicant paid $3,827.42 to the broker on account of their fees.
On 21 March 2018, following the execution of a search warrant, the applicant was arrested and interviewed and did not make any admissions. The applicant was discharged at a contested committal on the basis that the contraband had not been analysed to establish its composition. However, the applicant was directly indicted in December 2018.
On 17 February 2020, the matter came on for trial. The applicant entered a plea of guilty on 19 February 2020, following pre-trial argument and a ruling concerning coincidence evidence. As a result of his admissions, the charge against Mr Al-Shammari was discontinued.
At the time of the importation, molasses tobacco attracted duty at the rate of $771.60 per kg. The applicant was responsible for importing 3,245 kg of molasses tobacco which, if accurately declared, would have accrued $2,754,226.20 in duties and taxes payable to the Commonwealth.
Personal circumstances
The applicant is the eldest of 10 children and grew up in Kuwait. His father was a police officer and his mother worked in the home. The applicant completed schooling in Kuwait to Year 10 level and on leaving school, trained as a police officer, progressing to the rank of sergeant. Following the invasion of Kuwait, apparently the applicant was targeted because of his work and Iraqi background. He was imprisoned for about six to eight months and experienced regular beatings and torture. He was subsequently released with the assistance of the Red Cross and sent to Iraq. Based on his Kuwaiti background, he was imprisoned for a second time for some months, during which time he was the victim of further mistreatment and torture.[1]
[1]DPP v Majid [2020] VCC 1222, [18]–[20] (‘Reasons’).
The applicant came to Australia from Jordan in 1998, becoming an Australian citizen in November 2000.[2] His employment history has been unstable because of severe psychiatric and substance abuse problems and he has been on a disability support pension for many years.[3]
[2]Ibid [21].
[3]Ibid [22].
The applicant has been in a relationship with his current partner since 2006 and there are two children of that relationship, aged 12 and 11 at the time of sentence.[4]
[4]Ibid [23].
For the purposes of the plea the applicant was assessed by Mr Patrick Newton, an experienced clinical and forensic psychologist, who provided a report dated 23 July 2020. In his report Mr Newton identified anxiety as the most salient aspect of the applicant’s mental state, which could be divided into three components — reactive anxiety as a result of prosecution; concern for his relationship and children; and residual symptoms of traumatic anxiety having the genesis in his past exposure to trauma and abuse.
The judge noted Mr Newton’s view that the prospect of a further term of imprisonment appears to have rekindled a range of traumatic memories and he ‘anticipates that this will render any time in custody more difficult than is typically the case for an individual who does not have a history of trauma.’[5] Mr Newton advanced a diagnosis of post-traumatic stress disorder, in partial remission, and noted that the applicant would benefit from relatively intense support during the initial period of any time in custody.[6]
[5]Ibid [27].
[6]Ibid [28].
In addition to that expert opinion, the judge noted that the applicant induced character evidence relating to the positive role the applicant has played in the Iraqi community in Australia and in assisting refugees from Iraq to settle into the community.[7] It is apparent that the judge was impressed with that evidence, noting that it was important in establishing that the applicant is a person within the Iraqi-Australian community who has been respected and played a leadership role at times.[8] The evidence was also confirmed by two written character references provided by Kassim Al Hamdani, on behalf of the Alzahra Community Association, and Mr Hamed Hamdy from the Australian Shia Muslim Assembly.[9]
[7]Ibid [29].
[8]Ibid [30].
[9]Ibid [30].
Previous convictions and warning
The judge noted that the applicant does not have an unblemished record. The judge recorded two matters of limited relevance. First, possession of steroids in 2004 in respect of which the applicant was convicted and fined $2,000.[10] Second, four charges of obtaining financial advantage by deception in May 2010 concerning dishonoured cheques for which the applicant was convicted and fined $500.[11]
[10]Ibid [32].
[11] Ibid [33].
Of greater significance was the evidence that the applicant was involved in an uncharged importation of 111 kgs of molasses tobacco. Although the applicant was not charged with that offence, on 26 October 2016, he was provided with an official written warning in the following terms:
On 18 February 2016 a consignment addressed to Aussie T Pty Ltd, Epping, Victoria, 3076, arrived in Sydney. The Australian Border Force (ABF) examined the consignment and located a quantity of 100 kilograms of molasses tobacco.
Schedule 3 of the Customs Tariff Act 1995 specifies that tobacco, in the form of molasses, attracted a duty of $663.72 per kilogram. The importation of tobacco and tobacco related products into Australia with the intention of defrauding the revenue is an offence under section 233BABAD(1) of the Customs Act 1901. The maximum penalty for this offence is imprisonment for not more than 10 years, a fine not exceeding 5 times the duty that would have been payable, or where the Court cannot determine the amount of that duty, a penalty not exceeding 1,000 penalty units, or both.
…
It has been decided by the ABF that an official warning is to be given to you in this instance; however, you should be aware that it is deemed to be a serious offence to smuggle tobacco products into Australia with the intent to defraud the revenue.
Please be informed that any similar offences committed by you in the future, which are deemed to be in breach of the Customs Act 1901 or other Commonwealth legislation, will be dealt with seriously and may result in prosecution action being initiated against you. Additionally, if further offences are committed by you, the matters for which you have received an official warning will also be considered for prosecution.
Please also note that a copy of this letter will be retained on file as evidence of an official warning having been issued.[12]
[12]Ibid [36].
Reasons for sentence
After recounting the above matters, the judge set out the competing submissions of the parties and then turned to sentence the applicant.
The judge observed that the applicant was ‘the principal in a sophisticated criminal enterprise to evade $2.75 million duties and taxes.’[13] Although he acknowledged the absence of direct evidence as to gain, the judge said that it could be readily inferred that the applicant had calculated that the risk in committing the offence was worth his while.[14] The judge noted that the behaviour occurred despite the official warning received in 2016.[15]
[13]Ibid [49].
[14]Ibid.
[15]Ibid.
The judge then turned to a number of important mitigating considerations.[16] They included the trauma the applicant experienced in jail in Kuwait and Iraq and its ongoing psychological effects. He accepted that further imprisonment would be particularly burdensome and, made all the more acute, because of the restrictions arising from the current pandemic. The judge noted the positive contribution that the applicant had made to his community and that the plea of guilty merited a ‘substantial reduction in sentence despite its late entry’.[17] His Honour observed that the utilitarian benefit of his plea was likely to be considerable and his cooperation with authorities had facilitated the course of justice.
[16]Ibid [50]–[57].
[17]Ibid [54].
The judge accepted that based on the plea, cooperation and references, the applicant was remorseful for the offending, and noted that he retained the support of his family.[18] The judge also took into account the lengthy delay in finalising the matter, which had contributed to a state of uncertainty, and was a period of time in which the applicant had not reoffended.[19]
[18]Ibid [55].
[19]Ibid.
Importantly, the judge noted that in light of the official warning the applicant had received in 2016, the need to emphasise specific deterrence was elevated.[20] On the same topic, the judge assessed the applicant’s prospects of rehabilitation as ‘at least reasonable.’[21]
[20]Ibid [37].
[21]Ibid [56].
Finally, the judge observed that offending of this kind ordinarily results in a custodial sentence, and that in light of the large amount evaded and the principal role played by the applicant, a term of imprisonment was necessary.[22] The judge added that by reason of the substantial matters in mitigation, he would fashion the sentence in a way to ensure release at an earlier time than might otherwise be the case.[23]
[22]Ibid [57].
[23]Ibid.
Applicant’s submissions
The applicant submits that the sentence was manifestly excessive given five factors. First, Mr Newton’s opinion that rekindled trauma would continue to affect the applicant throughout any term of imprisonment. Second, the additional hardship arising from measures in prisons as a result of pandemic. Third, the applicant’s guilty plea, with its utilitarian value and as evidence of remorse and a willingness to facilitate the course of justice. Fourth, the delay of more than three years between the offending and sentencing, during which time the applicant had contributed to the community and did not reoffend. Fifth, inconsistency with current sentencing practice as exemplified by the decision of this Court in Barakat v Director of Public Prosecutions(Cth).[24]
[24][2020] VSCA 185 (‘Barakat’).
In Barakat, this Court allowed an appeal from a sentence of four years and three months imposed for the importation of tobacco with the intention of defrauding the revenue and substituted a sentence of three years and three months. Two offenders were dealt with in the judgment. Hassan Barakat was sentenced for a single rolled up charge which covered three importations of tobacco which, had they been declared, would have attracted about $3.96 million in duties. He was the principal offender. His brother, Dib Barakat, who had been involved in two of the importations and performed a more menial role, was resentenced to eight months’ imprisonment.
The applicant submitted that the offending by Hassan Barakat occurred over a longer period of time, involved greater quantities of tobacco and excise, and a higher degree of sophistication and organisation than his own offending. He notes that this more serious offending in Barakat resulted in a head sentence only six months longer than the applicant’s and the discrepancy supports his submission that the sentence imposed on the applicant is manifestly excessive.
Respondent’s submissions
The respondent, relying on a series of decisions in various courts,[25] identifies a number of relevant considerations and principles which she contends are relevant to sentencing for offences committed contrary to s 233BABAD. They are:
[25]R v Zhang (2017) 265 A Crim R 113, 122 [37]; [2017] SASCFC 5 (Chivell AuJ, Kourakis CJ and Vanstone J agreeing); R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299; Young v The Queen [2016] VSCA 149; Barakat [2020] VSCA 185.
(a) The amount of duty defrauded;
(b) The scale of the enterprise, including the quantity of tobacco imported or possessed;
(c) The logistics or sophistication of the endeavour;
(d) The role of the offender is a critical factor, particularly whether an offender was a principal offender or following the instructions of others;
(e) The period of the offending;
(f) The expected financial gain and high level of potential rewards which may flow from the offending;
(g) Whether the loss to the revenue has been repaid;
(h) Whether the offending involved other illegal activity, such as the use of false identities;
(i) Whether the offender was involved in the distribution and sale of the tobacco products in Australia;
(j) General deterrence is the primary sentencing consideration;
(k) Serious examples of offending under s 233BABAD(1) are sufficiently grave as to warrant a sentence of full-time imprisonment;
(l) Where general deterrence takes priority, factors such as prior good character and age are usually afforded less weight than might otherwise be given;
(m) The offence is effectively one against the revenue and accordingly, offending must be viewed in the context of taxation and similar offences and guidance taken from sentences imposed in these matters;
(n) It is erroneous to view this type of offending as victimless or of a lower level order criminality. Offending of this nature is not victimless as it lessens the ability of the government to provide for the community out of its taxation funds and imposes unfair burdens on those citizens who pay taxes; and
(o) Offending of this nature is often difficult to detect.
Relating those matters to the present case, the respondent submits that the sentence was not wholly outside the range of sentencing options available. The respondent emphases that the importation involved a large quantity of tobacco, worth about $2.75 million in revenue (none of which has been paid), and the applicant was the principal offender. The respondent observes that the applicant has a prior conviction for a drug offence and a dishonesty offence but, more importantly, he had been issued with an official warning from ABF which highlighted the seriousness of this type of offending.
The respondent submits that the judge took into account and gave adequate weight to the various mitigating factors upon which the applicant relied.
The respondent refers to a number of cases which, so the respondent submits, demonstrate that the sentence is consistent with current sentencing practice.[26] The respondent submits that Barakat should not be given undue emphasis for a number of reasons. First, one decision does not form a range. Second, it is important to recognise that past sentences ‘are no more than historical statements of what has happened in the past’ and that history does not necessarily establish the correct range, or the upper or lower limits to that range.[27] It follows that just because a lower or higher sentence might have been imposed in another case, that sentence does not necessarily establish the lower or upper limit of the appropriate range. Third, the Barakat sentence is a single Victorian intermediate appellate sentence where a national survey of cases is to be undertaken. Guidance should be taken from national intermediate appellate sentences or decisions.
[26]R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299; R v Medalian (2019) 133 SASR 50; [2019] SASCFC 40; Hussein v The Queen [2016] VSCA 212; R v Zhang (2017) 265 A Crim R 113; [2017] SASFC 5.
[27]Hili v The Queen (2010) 242 CLR 520, 537 [54]; [2010] HCA 45 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Consideration
In Hili v The Queen,[28] the High Court said:
As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’ …[29]
[28](2010) 242 CLR 520; [2010] HCA 45.
[29]Ibid [59] (citations omitted).
In Lowndes v The Queen,[30] the High Court emphasised that:
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.[31]
[30](1999) 195 CLR 665; [1999] HCA 29.
[31]Ibid 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
In Barbaro v The Queen,[32] the High Court observed that:
Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
… in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[33]
[32](2014) 253 CLR 58; [2014] HCA 2.
[33]Ibid 74 [40]–[41] (French CJ, Hayne, Kiefel and Bell JJ) (citations omitted).
In my view, the sentence imposed by the judge is not manifestly excessive and leave must be refused.
This was serious offending. It involved a large quantity of tobacco, resulted in a large amount of revenue forgone and was committed for financial gain. It is not necessary to quantify that gain to observe that, at least for the applicant, it was sufficiently great to run the risk of being caught.
Significantly, the applicant must have been aware of the risks associated with the venture. The official warning set out in clear terms the seriousness of the offence and identified the possibility of a term of imprisonment for the offence. Notwithstanding that warning, the applicant undertook the present offending. The judge was surely right in treating the applicant’s decision to ignore the warning as relevant to specific deterrence. It also informed the judge’s conclusion, well open to him, that the applicant’s prosects of rehabilitation were at least reasonable.
The applicant seeks to derive from the outcome in Barakat much more than can properly be gleaned from that case. First, the Court held that a sentence of four years and three months was, in the circumstances of that case, manifestly excessive. Obviously that sentence was considerably greater than that imposed on the applicant.
Further, when this Court came to resentence in Barakat, it was performing a very different role to that which the applicant first confronts. The Court was required to determine the sentence that it considered appropriate on the facts. As the respondent observes, it represents a single application of the principles in a particular factual context. It is not enough for the applicant to show that a differently constituted Court might have given the applicant a more lenient sentence. He must show that the sentence imposed was wholly outside the range available.
In any event, there are differences in the two cases. In Barakat, the delay was highly significant and the prospects of rehabilitation were found to be excellent. A comparison of those matters to the present case does not favour the applicant. It may be accepted that the quantity of tobacco and excise forgone was greater in Barakat. The quantity of the tobacco is a very important factor in sentencing, however, there is no precise linear relationship between quantity and sentence.
It cannot be doubted that the present importation involved a very large amount of tobacco and a significant loss to the revenue. Deterrence, both specific and general, were important factors to weigh in the balance.
In my view, the applicant has failed to demonstrate an arguable case justifying leave that the sentence was wholly outside the range. Leave to appeal must be refused.
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