Masri v The King - [2023] NSWCCA 266

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Masri v R [2023] NSWCCA 266
Hearing dates: 11 August 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Before: Kirk JA; Fagan J; Sweeney J
Decision:
1. Grant leave to appeal against sentence.
2. Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against aggregate sentence for offences against Customs Act 1901 (Cth) – where applicant was principal of criminal syndicate that coordinated importation of cigarettes with intent to defraud revenue – where persons engaged to bypass Australian Border Force and secure release of goods without payment of duty and GST were undercover police operatives – where applicant used operatives’ offer of assistance willingly – whether sentencing judge erred in finding that assistance of undercover operatives did not reduce the applicant’s moral culpability
CRIME – appeals – appeal against aggregate sentence – importation and possession of tobacco products on which applicant knew duty and GST unpaid – whether sentencing judge erred in concluding that actual loss to revenue was a factor in gravity of offending – where offences related to intent to defraud revenue – relevance to objective gravity of amount intended to be evaded – where no lesser sentence warranted at law despite error

Legislation Cited:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing and Procedure) Act 1999 (NSW)
Criminal Code (Cth)
Customs Act 1901 (Cth)
Customs Tariff Act 1995 (Cth)
Excise Act 1901 (Cth)

Cases Cited:
Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458; [2001] NSWCA 147
Ibrahim v R [2022] NSWCCA 161
Jomaa v R [2022] NSWCCA 112
Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197
Masri v R [2015] NSWCCA 243
Mourtada v R [2021] NSWCCA 211
R v Taouk (1992) 65 A Crim R 387

Category: Principal judgment
Parties: Rex (Crown)
Ahmad Masri (Applicant)
Representation: Counsel:
D Jordan (Crown)
P Lange (Applicant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Abbas & Co Lawyers (Applicant)

File Number(s): 2019/158910
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 August 2022

Before:

North DCJ

File Number(s):

2019/158910

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 August 2022 the applicant was sentenced in the District Court for two offences against s 233BABAD of the Customs Act 1901 (Cth). The first involved possession of 6,248 kilograms of molasses tobacco and 9.5 million cigarettes knowing the goods were imported with intent to defraud the revenue (the “possession offence”). The second concerned importing those cigarettes with intent to defraud the revenue (the “importation offence”). In sentencing for the possession offence two offences of dealing in proceeds of crime were taken into account.

The applicant was one of the principals of a criminal syndicate involved in importing and distributing tobacco products on which customs duty and GST were not paid.…

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 Masri v The King

Details

AGLC: Masri v The King [2023] NSWCCA 266
Case: [2023] NSWCCA 266
Decision Date: 27 October 2023

CaseChat Overview and Summary

Masri was the principal of a criminal syndicate involved in the importation of cigarettes with the intent to defraud revenue. He coordinated the operation with individuals who were, in reality, undercover police operatives. Masri was convicted and sentenced on multiple charges under the Customs Act 1901 (Cth). He appealed against the aggregate sentence, arguing that the assistance of the undercover operatives should have reduced his moral culpability. He also contested the sentencing judge's consideration of the actual loss to revenue as a factor in the gravity of the offending.

The appeal centred on whether the sentencing judge correctly assessed the role of the undercover operatives in Masri's criminal activity and if the judge erred in considering the actual loss to revenue. The core issue was whether the assistance provided by the operatives should have diminished Masri's culpability and if the actual loss to revenue was relevant to the gravity of the offences, which were centred on the intent to defraud rather than the actual financial loss.

The court held that the sentencing judge did not err in their assessment. The judge correctly found that the assistance of the undercover operatives did not diminish Masri's moral culpability, as he willingly engaged their services knowing their true identities and purpose. Furthermore, the court affirmed that the actual loss to revenue was pertinent in assessing the gravity of the offences, as it related to the intent to defraud. Despite the errors identified, the court concluded that no lesser sentence was warranted under the law.

The appeal was dismissed, and the original sentence was upheld. The court's decision confirmed that the sentencing judge's approach was legally sound, and the factors considered were appropriate for the gravity of the offences committed.

Orders