NSW Health v MJ Market Pty Limited; NSW Health v Suad Jodeh

[2025] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:

NSW Health v MJ Market Pty Limited; NSW Health v Suad Jodeh [2025] NSWLC 4

Hearing dates:

9 April 2025

Date of orders:

15 April 2025

Decision date:

15 April 2025

Jurisdiction:

Criminal

Before:

P Stewart LCM

Decision:

Each defendant is convicted and fined. A costs order and moiety order are made. A forfeiture order is made.

Catchwords:

Presumption of illegal tobacco retained or possessed for sale – delayed guilty pleas – company director and therefore company aware of illegality of possession – warning notice as to illegality and further inspection ignored – benefit of prior good character diminished - need for general deterrence and specific deterrence – minimisation of offence by director – significant increase in penalties since offences committed inform objective seriousness – multiple offences laid despite single occasion of possession – reason for multiple counts artificial - principle of totality – professional costs – just and reasonable – moiety order on fines – forfeiture order

Legislation Cited:

Crimes (Sentencing Procedure) Act s. 3A, 21A, 22

Criminal Procedure Act 1986 s.215

Fines Act 1996 s.122

Poisons and Therapeutic goods Act s.10(3)

Public Health (Tobacco) Act section 7(2), 41

Public Health (Tobacco) Amendment Bill (No 2) 2024

Cases Cited:

Cahyadi v R [2007] NSWCCA 1
Elias v The Queen (2013) 248 CLR 483

Environment Protection Authority v Cadia Holdings Pty Ltd [2025] NSWLEC 27

R v Merrin [2007] NSWCCA 255

Muldrock v The Queen (2011) 244 CLR 120

Park v The Queen [2021] HCA 37

R v Borkowski [2009] NSWCCA 102

Texts Cited:

Second Reading Speech for the Public Health (Tobacco) Amendment Bill (No 2) 2024

Category:

Sentence

Parties:

NSW Ministry of Health (prosecution) and
MJ Market Pty Limited (defendant company) and Suad Jodeh (defendant)

Representation:

A Deards, Solicitor – for prosecution
J Jiang, of Counsel instructed by E Lamarre, Solicitor

File Number(s):

2024/00368102 (MJ Market P/L)
2024/00268830 (Suad Jodeh)

Publication restriction:

NIL

REMARKS ON SENTENCE

The Offences

1. NSW Health commenced proceedings by Court Attendance Notices against the company MJ Market Pty Limited and the director of that company, Suad Jodah.

2. Each defendant was initially prosecuted for 2 counts of dealer supply schedule 4 substance without authority contrary to section 10(3) of the Poisons and Therapeutic Goods Act 1966, and 4 counts of sell tobacco product in a package not marked with a health warning contrary to section 7(2) of the Public Health (Tobacco) Act 2008.

The Pleas and Maximum Penalties

3. A plea of not guilty was entered by both defendants to all counts on 22 August 2024 and a hearing date was set for 19 May 2025. A readiness mention was listed for 25 February 2025. On that day, the matter was adjourned for the outcome of defence representations to 11 March 2025.

4. On 11 March 2025 guilty pleas were entered by the defendant company to sequences 1 and 2 (dealer supply schedule 4 substance without authority). The maximum penalty for each of those offences is 6 months imprisonment and/or a fine of 15 penalty units, ie. $1,650.

5. On the same day, the defendant, Ms Jodeh, pleaded guilty to sequences 3, 4, 5 and 6 (sell tobacco in package not marked with health warning). The maximum penalty for each offence is 100 penalty units, ie. $11,000.

6. In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102 at [32], I allow a utilitarian discount of 15% for the delayed guilty pleas.

7. I am required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence: see Park v The Queen [2021] HCA 37 at [19].

Agreed Facts

8. A set of agreed facts was tendered for each defendant. The facts can be summarised as follows.

9. MJ Market Pty Ltd is a company that conducts business as a shop trading as Elite Supermarket in Kogarah (“the shop”).

10. The defendant Suad Jodeh is the sole director and secretary of the defendant company.

11. On 19 October 2023, the shop was inspected by an environmental health officer from the South-Eastern Sydney Public Health Unit. Large amounts of e-cigarettes known to contain nicotine and illicit tobacco were found. Consequently, a warning letter was sent by the Health Department. A copy of the letter was marked Tab A and annexed to the facts.

12. In that letter, attention was drawn to the penalties that apply to both types of offences which the defendants have now respectively pleaded guilty. It also referred to the penalties for the offence of displaying tobacco or non-tobacco smoking products. A number of such products were found to be unlawfully on display.

13. The letter includes the following paragraph in bold print:

“Another inspection of your premises will be conducted in the near future. If more e-cigarette products (vapes) containing liquid nicotine are found at the premises further action, including seizure of the products and prosecution may be undertaken.”

14. About 10:55am on Wednesday, 10 April 2024 – nearly 6 months later - a further inspection was carried out at the shop.

15. Behind the shop area was an office. At the back of the office there was a storeroom used to store packaged food and other items associated with the grocery store. A wall of the storeroom consisted partially of a floor to ceiling shelving unit. When pressed, the shelving unit opened inwards, revealing a doorway. The doorway led to a concealed hidden room. On the outside, the door had no handles, knobs, latches or anything that would indicate that it was in fact a door. However, on the inside, remotely operated electronic locks were observed (photographs 1 to 4 annexed to the defendant company facts sheet and photos 3 to 6 annexed to the defendant Jodah’s facts sheet).

16. Located inside the hidden storeroom was a large number of e-cigarette devices that are known to contain nicotine (photograph 5).

17. The products located in relation to the offences committed by the company involve 1074 IGET disposable pod devices known to contain nicotine (sequence1) and 198 INSTA BAR disposable e-cigarette devices known to contain nicotine (sequence 2).

18. The products located inside the hidden storeroom relating to the offences charged against Ms Jodeh were located on shelving systems containing large quantities of illicit tobacco products including packets/ cartons of cigarettes without the prescribed health warnings and large bags and smaller clip lock bags of looseleaf tobacco known as chop-chop (photos 7 to 8 annexed to the relevant facts sheet). All of the tobacco items were packaged without the prescribed health warnings as prescribed by the NSW Public Health (Tobacco) Act.

19. The Act and its Regulation deem that quantities of tobacco greater than 50 grams found on retail premises are presumed to be on the premises for sale. A carton of cigarettes contain 10 packets and reference to packets means those not contained in a carton.

20. In relation to sequence 3, there were 9 ½ large bags and 10 small zip lock bags of loose leaf chop-chop tobacco in packages not marked with the prescribed health warnings. The agreed facts do not record the weight of the tobacco.

21. In relation to sequence 4, there were eight cartons of Al Fakher flavoured water pipe tobacco in packages not marked with the prescribed health warnings.

22. In relation to sequence 5, there were 5 cartons of Africa Mola brand cigarettes; 2 cartons and 9 packets of Parliament brand cigarettes; 52 cartons and 70 packets of Manchester brand cigarettes; 7 cartons and 11 packets of Dunhill brand cigarettes; 14 cartons and 11 packets of Davidoff brand cigarettes; 1 carton of Raison brand cigarettes; 13 cartons and 10 packets of Omega brand cigarettes; 6 cartons and 3 packets of Oscar brand cigarettes in packages not marked with the prescribed health warnings.

23. In relation to sequence 6, there were 56 packets and 43 cartons of Marlboro brand cigarettes; 20 packets and 22 cartons of Double Happiness brand cigarettes; 20 packets in 19 cartons of Mevius brand cigarettes; 24 cartons and 33 packets of Esse brand cigarettes; 8 cartons and 5 packets of MAC brand cigarettes; and 1 packet of Africa Rula cigarettes in packages not marked with the prescribed health warnings.

24. The employee in charge of the shop at the time told the Environmental Health officers that they had not been selling tobacco or vapes since the previous inspection. Whilst the illicit stock was being sorted and counted, he said that the tobacco was for personal consumption.

Criminal Record

25. Neither defendant has a criminal record.

Prosecution Submissions

26. The prosecutor provided written submissions in relation to each defendant.

27. On 1 December 2024, the maximum penalty for the offences committed by the company increased from 6 months imprisonment and/or a fine of 15 penalty units ($1,650) to a maximum penalty of 7 years imprisonment and/or a fine of 14,000 penalty units $1,540,000) though on a sliding scale depending on the quantity of material retained for supply.

28. The defendant company retained 1,272 vapes for supply. Therefore under the new provisions in section 20 of the Act which concern the supply of vaping goods, which includes an e-cigarette or vape, the penalty would have increased to 4 years imprisonment and/or 8,400 penalty units ($924,000).

29. It was submitted by the prosecution that although the maximum penalty for an offence pursuant to section 10(3) has not increased, a new offence has been created which is directed to the very conduct the defendant company pleaded guilty. The substantial increase in penalty is reflective of the seriousness of the offending.

30. Further, it was submitted by the prosecution that the maximum penalty for an offence reflects Parliament’s assessment of the seriousness of the offence, citing Muldrock v The Queen (2011) 244 CLR 120 at [31], thus providing a sentencing yardstick for the sentencing court (see Elias v The Queen (2013) 248 CLR 483 at [27]).

31. The prosecution relied upon the remarks of Pritchard J. in Environment Protection Authority v Cadia Holdings Pty Ltd [2025] NSWLEC 27 at [21], namely “the increase in the maximum penalty indicates the legislature’s understanding and reflection of contemporary community standards concerning the offence.”

32. Mr Deards for the Department of Health referred to various attempts at State and federal level to limit access to vaping products.

33. It was submitted that the objective serious of sequence 1 is at or below the mid-range, and that sequence 2 was below the mid-range, having regard to the circumstances of the offending and the quantity of illicit items located.

34. The objective seriousness was said to have been increased because the offender was visited by Environmental Health officers six months prior to the offending and given a warning that the items which are the subject of the charges were illegal to sell.

35. It was submitted that the offence was part of planned or organised criminal activity and therefore a statutory aggravating factor pursuant to section 21A(2)(n) of the Crimes (Sentencing Procedure) Act. The vapes were retained for sale in the shop which otherwise sold legitimate products. By offering the vapes for sale from an otherwise legitimate shop, those products are afforded a misleading and unwarranted sense of legitimacy, which belies the fact that they are imported illegally and without the strict quality control requirements which apply to vapes lawfully purchased at a pharmacist.

36. The vapes were located in a concealed room, access which was going to an area which outwardly appeared to be a storage shelf and which was held closed by magnetic locks which were operated by a remote control. The offending therefore has a degree of organisation.

37. As a further statutory aggravating factor, it was submitted that the offence was committed for financial gain pursuant to section 21A(2)(o) of the Act. In that regard, it was said that sales for these illicit products would be conducted ‘under the counter’ and that there would be no financial accounting for monies received from the sale of the illicit product.

38. The prosecution agreed that an appropriate discount for the utilitarian value of the pleas of guilty were in the vicinity of 15%.

39. The prosecution submitted that there is a strong need for both specific and general deterrence and that the message must be sent to this and other shop owners that the illegal sale of dangerous products will not be tolerated and that upon conviction, harsh penalties will be imposed.

40. The fact that the defendant company is a corporate entity does not detract from those considerations. It was submitted that a corporate entity is not motivated by passion or impulse, and is incorporated for the purpose of running a business and therefore financially motivated and more likely to engage in offending conduct as a calculated risk.

41. It was further submitted that the imposition of a penalty which not only deprives a corporation of the fruits of its offending conduct, but which directly impacts its profits, sends a message to other similar companies that it is not worth the risk of detection and prosecution if it chooses to engage in the sale of vaping products.

42. The prosecution submit that convictions are appropriate for each offence involving the defendant company and that the court impose a monetary penalty to deprive the offender of the benefit of its offending.

43. In relation to the prosecution of the company director, Ms Jodeh, the prosecution point to the object of the Public Health (Tobacco) Act set out in section 3(1) of the Act, namely:

“to reduce the incidence of smoking and other consumption of tobacco products and non-tobacco smoking products, particularly by young people, in recognition of the fact that the consumption of those products adversely impacts on the health of the people of New South Wales and places a substantial burden on the State’s health and financial resources.”

44. Subsection (2) provides that:

“the Act aims to achieve that object by (a) regulating the packaging, advertising and display of tobacco products, non-tobacco smoking products and e-cigarettes, and (b) prohibiting the supply of tobacco products, non-tobacco smoking products, e-cigarettes and e-cigarettes accessories to children and (c) reducing the exposure of children to environmental tobacco smoke.”

45. It was submitted that the overarching purpose of the Act is directed towards public safety.

46. The prosecution relied upon the Second Reading Speech for the introduction of the Act which amended the maximum penalties in the Tobacco Act: see Public Health (Tobacco) Amendment Bill (No 2) 2024.

47. In that speech, the Minister for Health, the Honourable Ryan Park, said that the bill is a direct response to community expectations around the need to tackle the trade in illicit tobacco and ensure robust enforcement of tobacco retailing laws by introducing a licensing scheme and increasing penalties for certain existing tobacco related offences. Mr Park MP said that the lucrative trade in illicit tobacco threatens to hamper efforts to reduce tobacco consumption, and the speech noted that:

“illicit tobacco is tobacco grown or manufactured in Australia or imported into Australia without appropriate excise or customs duties being paid. As a result, these products often do not include mandatory public health warnings regarding the harms of smoking. Illicit tobacco is often significantly cheaper and therefore appeals to people, especially young people, because of its attractive price. Its availability and affordability undermine the New South Wales government’s public health efforts…… Increasing penalties will provide a greater deterrent for the unlawful sale of tobacco products and is consistent with community expectations. These increased penalties for tobacco retailing in illicit tobacco offences reflect the New South Wales government’s commitment to addressing the health impacts of tobacco smoking and vaping on the New South Wales community.”

48. It was submitted by the prosecution that the offences against Ms Jodeh were at or below the mid-range of objective seriousness having regard to the circumstances of the offending and the quantity of illicit items located.

49. The prosecution pointed out that written health warnings have been mandatory on smoking products in Australia since the early 1970s with graphic pictorial warning since the mid 2000’s. Since 1 December 2012, all tobacco products sold or supplied in Australia must be in plain packaging. It was said that the purpose of the graphic health warnings is an attempt to dissuade people from taking up smoking and to encourage existing smokers to quit. The purpose of plain packaging is also intended to discourage people from beginning to smoke in the first place. The sale of tobacco which does not comply with the plain packaging requirements and health warnings requirements flies directly in the face of those protective measures.

50. It was submitted that since products lawfully imported into Australia have been required to bear graphic health warnings for in excess of 15 years, the products offered for sale were necessarily unlawfully imported into Australia and not the subject of any Australian quality control or standardisation as to strength.

51. Similar to the company, the prosecution submitted that the offences committed by Ms Jodeh were part of a planned organised criminal activity and committed for financial gain.

52. On the latter point, it was noted that inside the hidden storage room was located a salesman’s folder in the form of a folder or compendium which contained individual packets of cigarettes with price tags, with a sign on the front cover “Cash Only.”

53. The illicit products located were imported from overseas and not the subject of excise duty which attaches to tobacco that is lawfully imported into this country. Consequently, the offender derived a financial benefit from the avoidance of paying tax and that money received from the sale of these items was unlikely to be included in any declared business income.

54. Notwithstanding the force of those submissions, it must be noted that no immediate action was taken by the Environmental Health Officers to confiscate the large quantity of offending product at the time of the first inspection on 19 October 2023, and therefore the offending detected was allowed to continue.

55. In relation to both defendants, the prosecution seek a moiety of 50% in favour of the Secretary of Health pursuant to section 122 of the Fines Act 1996.

56. Further, the prosecutor seeks professional costs pursuant to section 215 of the Criminal Procedure Act 1986. In that regard, the court was informed that the prosecution and defence have reached agreement of an order that professional costs in relation to each defendant be made in the sum of $5,500 inclusive of GST.

57. Finally, the prosecutor relies upon section 41 of the Public Health (Tobacco) Act for the forfeiture of the seized tobacco upon conviction.

Plea in Mitigation

58. A number of documents were tendered on behalf of the company defendant and defendant Ms Jodeh. These include an apology letter from Ms Jodeh. Ms Jodeh acknowledged that her actions were motivated by short-term financial gain without properly considering the consequences to the community.

59. Ms Jodeh wrote that the inspectors did not confiscate the goods during their first visit and that she was uncertain as to what to do with those goods as they had been paid for and could not be returned or used. She claimed that the products were then moved into the back storage room, which already existed prior to the first visit. The offender claimed that there was no intention to keep or sell the items, and that ‘we genuinely didn’t know how to safely or legally dispose of it at that time.”

60. The offender is 46 years of age, married for 28 years and migrated to Australia from Palestine with her husband in 1996 where they have since raised three children. The offender has a number of academic qualifications and a number of certificates which were annexed to her letter.

58. Supportive letters were also supplied by the offender’s brother Nimer Jodeh and her son Adam Jodeh.

59. A copy of Ms Jodeh’s 2023 taxation assessment was provided noting a taxable income of $137,295.

60. A 13 page bank statement for the company MJ Market Pty Ltd as Trustees for the MJ Family Trust was tendered for the three month period ending 30 March 2025. The statement revealed total credits of $75,428.09 with outgoings of $84,578.55.

61. Mr Jiang of counsel for both defendants said that the offending was out of character, and each had no prior convictions recorded. Ms Jodeh is remorseful

62. It was submitted that the defendant company and Ms Jodeh have the capacity to pay a fine. The company MJ Market Pty Ltd commenced operation from 21 July 2023, some three months before the initial inspection by the authorities.

63. Mr Jiang agreed with the prosecutor that a discount of 15% for the utilitarian value of the plea for each defendant was appropriate. Mr Jiang also agreed with the assessment of objective seriousness as submitted by Mr Deards for the prosecution.

64. It was acknowledged that it could not be submitted that the value of the illicit tobacco was not of insignificant value. Further, there was some ‘concurrency’ between the offending concerning each defendant.

65. It was submitted that Ms Jodeh’s prospects of rehabilitation were good, noting her remorse, lack of antecedents and the level of her education.

66. It was submitted that the loss suffered by the defendant’s should be taken into account by virtue of the tobacco being seized.

General Remarks

70. The claim by Ms Jodeh that she had no intention of selling the illicit tobacco and not knowing what to do with the product has not been established on the balance of probabilities and is rejected.

71. There can be no doubt that Ms Jodeh is an educated woman demonstrated by the various certificates tendered on her behalf. The Environmental Health Officer wrote a Letter and Warning Notice to the offenders on 23 October 2023, four days after the initial inspection by members of the South-Eastern Sydney Public Health Unit. There is no evidence of any attempt by Ms Jodeh to make contact with that officer.

72. I note that the facts do not disclose the precise quantity of illegal tobacco found during the first inspection. Accordingly, no comparison can be made to the illegal tobacco found on the first inspection and compared to the second inspection.

73. The invitation to discuss the initial inspection and the contents of the warning notice were clearly set out in the Warning Notice (Tab A).

74. The unlawful products were removed to a concealed or hidden room, and were the only tobacco items stored in that room, that is, no lawful stock was stored in the hidden room. The Cash Only folder with product and prices was also kept in that room.

75. The deeming provisions set out in section 7(4) of the regulation 7 of the Public Health (Tobacco) Regulations 2022 have a presumption that the tobacco product is for the purposes of sale. The legislation states that such presumption is rebuttable. No attempt has been made to rebut the presumption, and the offender (Ms Jodeh) has pleaded guilty to each of the four sequences for which she is to be sentenced.

76. The offender’s assertion is also contradicted by her acknowledgment in the same letter that her “actions were motivated by short-term financial gain without properly considering the consequences to the community.” This contradicts the claim by an employee on the day of the second inspection that they had not been selling the product since the previous inspection and that the tobacco was for personal consumption.

77. Whilst I am satisfied that Ms Jodeh is remorseful for herself, she has minimised the offending conduct. Since Ms Jodeh is the sole director for the defendant company, she has also therefore minimised the offending conduct of the company. I accept that Ms Jodeh, and therefore the company acted by way of motivation for financial gain. I am unable to accept that such motivation was ‘short-term’.

78. The mitigating factor of prior good character is diminished in circumstances where Ms Jodeh was on notice of the criminality of the possession of illegal tobacco from the first inspection and subsequent warning notice, yet continued to offend over the ensuing five and a half months and admits being motivated to offend for financial gain. The company also therefore continued to offend to achieve a financial gain.

79. The Court has not been asked to record a non-conviction for either defendant, and nor would it be appropriate. The recent substantial increase in penalties and content of the second reading speech make it abundantly clear the seriousness with which the Parliament considers this type of offending. Further, it must be accepted that the actions of the defendants is contrary to the objects of the legislation, which is primarily aimed at public safety.

80. I am satisfied beyond reasonable doubt of the fact that the seized tobacco was unlawfully obtained, though the means by which it was obtained is unclear and cannot be the subject of speculation. I am satisfied that it was imported from overseas, but the importer of those items cannot be identified in this matter.

81. There is a clear and undeniable inference available that the retention for sale of the illegitimate tobacco product would not have resulted in the monetary proceeds being declared. For that reason, the submission that the Court should take into account the loss suffered by the defendants as a consequence of the tobacco being seized must be firmly rejected: see R v Baden-Clay [2016] HCA 35 at [46] and [47] regarding the drawing of rational inferences.

82. I am satisfied that the defendant Ms Jodeh in her capacity as Director of MJ Market Pty Ltd was aware of and responsible for the unlawful tobacco being removed from being on display to the concealed or hidden room. It is through the actions of the Director that the company finds itself liable for retaining the product for supply.

83. The retention and concealment of the product notwithstanding the previous inspection by the authorities in October 2023 and subsequent Warning Notice, and the retention of the Cash Only sales compendium, together with Ms Jodeh’s admission in her letter, conclusively point to the product being retained for the purpose of sale, though such finding is not essential due to the legislative presumption previously referred to. It does however inevitably lead to the conclusion of the criminal intention in relation to the illegal tobacco product.

Objective Seriousness

84. I raised with the parties my concerns regarding a proper assessment of the objective seriousness of the offending in circumstances where for each defendant there are multiple counts, yet the basis of having separate counts was far from clear.

85. In relation to the defendant company, the offending tobacco product consisted of 1074 IGET disposable e-cigarette devices containing nicotine (sequence 1) and 198 INSTA BAR disposable e-cigarette devices containing nicotine (sequence 2). The only difference between two sequences is the brand of disposable e-cigarette devices located, and the quantity of one brand being greater than the quantity of the other.

86. The parties agree that the objective seriousness of the first offence against the company is at or below the mid-range of objective seriousness, and for the second offence is below the mid-range of objective seriousness. The likely reason for that submission is based on the quantity of devices located.

87. In relation to the defendant Ms Jodeh, sequence 3 relates to a quantity of loose leaf ‘chop-chop’ tobacco; sequence 4 relates to cartons of flavoured water pipe tobacco; and sequences 5 and 6 related to cartons and packets of cigarettes.

88. I accept that it is for the prosecution to bring proceedings against an offender which they consider appropriate. I also accept that the defendant has a right to plead guilty to proceedings brought against them.

89. The fact remains that a quantity of unlawful e-cigarettes were located at the same time date and place and are the subject of separate charges based on the brand of the e-cigarettes.

90. Similarly, a quantity of unlawful tobacco products being chop-chop tobacco, flavoured water pipe tobacco, and cigarette packets and cartons were located at the same time date and place and are the subject of separate charges based on so far as sequences 3 and 4 are concerned, one his unpackaged tobacco and the other is water flavoured tobacco. The reason for the separation of cigarette packets and cartons into sequences 5 and 6 is altogether unclear.

91. Mr Deards on behalf of NSW Health initially submitted that the sequences could be distinguished because one involved loose tobacco, another involved water flavoured tobacco, and the two remaining counts related to types of cigarettes that might be purchased by different customers. By that, it was suggested that persons who used to certain types or brands of cigarette would be unlikely to use other types or brands of cigarette. I remain unconvinced by that submission.

92. In the course of sentencing submissions, I referred the parties to the decisions of Cahaydi v R [2007] NSWCCA 1 at [27] and R v Merrin [2007] NSWCCA 255 at [36] and [37] concerning the principle of totality of criminality, and to an extent dealing with offences that arise at the same time. I provided the citations to the legal representatives and stood the matter down for them to consider.

93. In Cahyadi, Howie J. said:

In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

94. Cahyadi refers to a situation where sequences are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

95. In Merrin, Howie J. said at [36] and [37]:

36 This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle.

37 There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending.

96. The decision of Merrin is not strictly on point, though it is clear that the court should not impose a sentence for one offence that is increased to encompass all of the offending. Any fines to be imposed must reflect the appropriate penalty for that single offence, such that the total of the fines across multiple offences must reflect the totality of the offending.

97. I remain unconvinced that there is separate offending in any real or genuine sense as between sequences 1 and 2 for which the defendant company is to be sentenced, or between sequences 3, 4, 5 and 6 for the which Ms Jodeh is to be sentenced. With respect, the distinction raised to justify the separate counts is entirely artificial. However, it does not invalidate the fact that multiple offences have been commenced and pleaded to. It does however require consideration as to overall criminality and the imposition of appropriate penalties.

98. Concerning the company, if all of the offending for sequences 1 and 2 were hypothetically amalgamated into a single sequence because the possession of unlawful tobacco product occurred at the same time, the objective seriousness would be marginally higher than the agreed position of the parties for each separate offence. Rather than being ‘at or below the mid-range’, and ‘below the mid-range’ respectively, the objective seriousness would be into the mid-range.

99. Similarly for Ms Jodeh, if all of the offending for sequences 3, 4, 5 and 6 were hypothetically amalgamated into a single sequence because the possession of unlawful tobacco product occurred at the same time, the objective seriousness would be marginally higher than the agreed position of the parties for each separate offence. Rather than being at or below mid-range of objective seriousness, the objective seriousness would be into the mid-range.

100. The net result is precisely the same for each offender, and the principle of totality has been given proper consideration by determining the extent of the total criminality of the offending by each offender.

101. In relation to the defendant company, I note that potential penalties include imprisonment and/or fines. The maximum fine of $1,650 is not the maximum penalty, merely the maximum fine that can be imposed. There is a strong need for general deterrence for the very reasons that Parliament has seen fit to significantly increase the maximum penalties, as submitted correctly by the prosecutor.

102. There is also a strong need for specific deterrence given that the company failed to take advantage of the warning notice following the first inspection that found unlawful tobacco product, despite being put on notice there would be a further inspections.

103. The same must be said for Ms Jodeh as director of the company – a strong measure of general and specific deterrence is required for the same reasons.

104. Although there appear to be some unusual transactions on the company banking documents that raise a question as to whether company funds are being applied to non-company expenses, it has nothing to do with the likelihood of Ms Jodeh reoffending or have any impact on this sentencing exercise. Notwithstanding my rejection of some of Ms Jodeh’s claims in her letter, and her admissions as to financial motivation, I remain optimistic that she is unlikely to reoffend.

105. As Ms Jodeh is the sole director of the company, any finding that she is unlikely to reoffend must also benefit the company, as it is the company director that makes decision on behalf of the company. To that extent, both defendants are likely to have been rehabilitated.

Costs Orders, Moiety Orders and Forfeiture Orders

106. The prosecution seek an Order of professional costs pursuant to section 215 of the Criminal Procedure Act 1986 in the sum of $5,500 inclusive of GST against each defendant. I consider that amount, totalling $11,000 (inclusive of GST) to be just and reasonable.

107. Further, pursuant to section 122 of the Fines Act 1996, the prosecution seek moiety of 50% (fifty percent) of any fine ordered against each defendant to be paid to the Secretary of Health.

108. Finally, the prosecution seek a forfeiture order of the tobacco product seized and relating to the respective sequences for which the offenders are to be sentenced.

109. I note that Counsel for each offender does not oppose the making of such Orders.

ORDERS

110. The defendant company MJ Market Pty Limited is convicted on sequences 1 and 2 and fined on each count the sum of $1,650.

111. Pursuant to section 215 of the Criminal Procedure Act 1986, a costs Order is made against MJ Market Pty Limited in the sum of $5,500 inclusive of GST.

112. Pursuant to section 122 of the Fines Act of 1986, by way of moiety, 50% (fifty percent) of the fine imposed against MJ Market Pty Limited is to be paid to the Secretary of Health.

113. Pursuant to section 41 of the Public Health (Tobacco) Act 2008, the seized tobacco relating to MJ Market Pty Limited is forfeited.

114. The defendant Suad Jodeh is convicted on sequences 3, 4, 5 and 6 and on each count fined the sum of $1,650.

115. Pursuant to section 215 of the Criminal Procedure Act 1986 a costs Order is made against Suad Jodeh in the sum of $5,500 inclusive of GST.

116. Pursuant to section 122 of the Fines Act of 1986, by way of moiety, 50% (fifty percent) of the fine imposed against Suad Jodeh is to be paid to the Secretary of Health.

117. Pursuant to section 41 of the Public Health (Tobacco) Act 2008, the seized tobacco relating to Suad Jodeh is forfeited.

*****

Decision last updated: 11 November 2025