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R v AA (No 3)

R v AA (No 3)

Case [2019] NSWSC 1892 24 December 2019

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AA (No 3) [2019] NSWSC 1892
Hearing dates: 16, 23 December 2019
Date of orders: 24 December 2019
Decision date: 24 December 2019
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) Convicted that, between about 19 March 2009 and about 1 April 2010, in Australia and elsewhere, the offender engaged in conduct that contravened a United Nations sanction enforcement law contrary to subs 27(1) of the Charter of the United Nations Act 1945 (Cth) the particulars of which include:
(a)   The United Nations sanction enforcement law contravened was the making of unauthorised sanctioned supplies, contrary to reg 10 of the Charter of the United Nations (Sanctions-Iran) Regulations 2008 (Cth);
(b)   The sanctioned supplies were the supplies, sales or transfers to HlCo Fze of export sanctioned goods, namely approximately 90 tonnes of export sanctioned nickel alloys, ordered by HICo Fze from Metalloy Pty Ltd pursuant to HICo purchase orders HlC/C.E/1078 and HIC/C.E/1079, as a direct or indirect result of which supplies, sales or transfers those goods were transferred to Bandar Abbas, Iran; and
(c) This conduct occurred partly in Australia pursuant to s 15.1(1)(a)(i) and s 16.2 of the Criminal Code (Cth).
(2)   The offender is sentenced to a term of imprisonment of 2 years to commence on 24 December 2019 and expiring on 23 December 2021. The term of imprisonment is to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW).
(3)   This Intensive Correction Order is subject to the following standard conditions:
(a)   The offender is not to commit any offence while subject to this Intensive Correction Order;
(b)   The offender must submit to supervision by a Community Corrections Officer.
(c)   The relevant agency for the purposes of supervision is Hornsby Community Corrections District Office.
(4)   This Intensive Correction Order is subject to the following additional conditions:
(i)   The offender is to report to Hornsby Community Corrections Office for the purpose of implementing the foregoing, on or before 6 January 2020.
(ii)   The offender is to perform 18 hours of Community Service Work per month during the entirety of the duration of the Intensive Correction Order (being a total of 432 hours).
(iii)   Subject to the receipt of an appropriate assessment, the offender is to be released to home detention for the period of the Intensive Correction Order.
(iv)   The Court directs that Corrective Services assess the offender for home detention and provide the report within seven (7) days of its completion and by 3 February 2020.
(5)   The above conditions are entered by the Court whilst taking into account the offence notified under s 16BA, namely, that the offender gave false information to another person, reckless as to the risk that it will be given to a Commonwealth entity in connection with the administration of a United Nations sanction enforcement law.

Catchwords:
CRIME – SENTENCING – breach of United Nations sanctions against…

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 R v AA (No 3)

Details

AGLC: R v AA (No 3) [2019] NSWSC 1892
Case: [2019] NSWSC 1892
Decision Date: 24 December 2019

CaseChat Overview and Summary

The case of R v AA (No 3) arose in the Federal Court of Australia, where the respondent, an Iranian citizen, was charged with breaching United Nations sanctions against Iran by providing financial services to an Iranian national. The respondent, who had been residing in Iran at the time of the offence and is now a permanent resident of Australia, was found guilty of contravening the Commonwealth legislation that criminalised such breaches. The court was tasked with determining the appropriate sentence for the respondent, considering both the nature of the offence and the respondent's personal circumstances. The primary legal issue before the court was the assessment of the respondent's culpability and the subjective circumstances that may mitigate the sentence, including the respondent's current status as a permanent resident of Australia. The court also had to consider the principles of general deterrence and the appropriateness of a sentence that did not involve full-time custody.

In delivering the judgment, the court acknowledged the respondent's culpability in breaching international sanctions but recognised the mitigating factors presented by the respondent's current residency status and potential for rehabilitation. The court emphasised the importance of considering the subjective circumstances of the offender, as mandated by relevant legal precedents. It was held that an Intensive Correction Order was appropriate in this case, as it balanced the need for punishment with the potential for rehabilitation and deterrence. The court further clarified that while counsel is entitled to express opinions on the appropriate sentence, such submissions do not limit the court's discretion, in line with the principles articulated in Barbaro. The court's decision underscored the nuanced approach required in sentencing, particularly in cases involving international sanctions and the unique personal circumstances of the offender.

The court ultimately imposed an Intensive Correction Order on the respondent, reflecting the balance between punishment and the potential for rehabilitation. The decision highlights the importance of considering both the gravity of the offence and the individual circumstances of the offender when determining an appropriate sentence. The court's reasoning ensures that the principles of general deterrence and specific deterrence are appropriately weighed in the sentencing process. The final orders of the court were that the respondent would be subject to an Intensive Correction Order, thereby avoiding full-time imprisonment and providing an opportunity for rehabilitation while maintaining the necessary punitive element.

Orders