R v Ahmeti
[2007] VSCA 237
•2 November 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 370 of 2006
| THE QUEEN |
| v |
| ARSIM AHMETI |
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JUDGES: | NETTLE, ASHLEY and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 October 2007 | |
DATE OF JUDGMENT: | 2 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 237 | |
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CRIMINAL LAW – Sentence – Appeal against sentence – Whether manifestly excessive – Whether applicant’s financial circumstances taken into account in determining appropriate fine – Whether fine imposed within range – Relevance of delay – Appeal dismissed – Excise Act 1901 (Cth), s 117D(1) – Crimes Act 1914 (Cth), s 16C.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J J Barrington | Mr S Young, Commonwealth Department of Public Prosecutions |
| For the Applicant | Ms F L Dalziel | Tony Hargreaves & Partners |
NETTLE JA:
I agree with the reasons and orders proposed by Dodds-Streeton JA.
ASHLEY JA:
I agree with Dodds-Streeton JA, for the reasons which her Honour gives, that this appeal should be refused.
DODDS-STREETON JA:
On 13 November 2006, the applicant, Arsim Ahmeti, who is now aged 40, pleaded guilty in the Country Court to one count of intentionally moving 197.5 kilograms of tobacco leaf, knowing or being reckless whether it was tobacco leaf, contrary to s 117D(1) of the Excise Act 1901 (Cth) (‘the Act’).
After hearing a plea in mitigation of penalty, the judge sentenced the applicant to pay a fine of $15,000 and granted a six months’ stay of payment. The maximum penalty which could be imposed for the offence was either a fine of $260,305.90 (calculated on the basis of the greater of 500 penalty units and five times the duty payable in accordance with a statutory formula) or two years’ imprisonment.
By notice dated 23 November 2006, the applicant sought leave to appeal against the sentence on the ground that ‘the sentence, in all of the circumstances of the case, is manifestly excessive.’ On 4 May 2007, Redlich JA refused leave to appeal.
On 10 May 2007, the applicant gave notice pursuant to s 582 of the Crimes Act seeking to have the application determined by the Court of Appeal.
The Facts
The offence was committed on 8 April 2003, when the applicant, who was not licensed to move tobacco and did not have permission to possess, control or move
tobacco under s 44 of the Act, was intercepted by police while driving a utility truck between Myrtleford and Laceby, Victoria. The truck contained two bales of fine cured Virginia tobacco leaf held in two metal boxes. The total weight of the tobacco was 197.5 kilograms. The excise duty payable on the tobacco was $52,061.18. According to the applicant’s account, his involvement in the offence was initiated when, some time prior to April 2003, he was approached at a soccer match by a man (identified only by his first name) who offered him $500 to drive a truck. He initially declined the offer, but subsequently agreed to perform the task, because he had, by then, lost his own job.
The applicant asserted that he was paid $500 for driving the truck. He maintained that he did not know that the substance being transported was tobacco and did not think about, or inquire into, the questionable circumstances of the job, because he was taking medication for influenza at the time of the offence. He asserted that when he told the other persons involved that he did not want trouble, he was reassured that the substance was ‘like hay’.
The learned sentencing judge accepted that the applicant pleaded guilty on the basis that he acted recklessly rather than intentionally. He found that the applicant knew that what was happening was suspicious.
The applicant was born in Kosovo in 1966. He completed one year of a minerology course in Kosovo before travelling to England at the age of 23. A year later, in 1991, aged 24, he migrated to Australia. The applicant’s only relative in Australia at the time of his migration was an uncle.
On arrival in Australia, the applicant obtained employment with One Steel, where he worked for 10 years between 1992 and 2002. From 2003 to 2004, he was employed through an agency and obtained work only ‘on and off’. The offence was committed during the period of employment instability. Following the offence, in August 2004, he again secured steady employment with Ford Motor Company, where he worked until he received a termination package in March 2006. From March 2006, he obtained steady employment with Hume City Council maintaining trees.
The applicant had been married for six years at the date of the plea, and he and his wife had been together for approximately 10 years. They had a child who was aged about one year old.
The Applicant’s Financial Circumstances
Counsel for the applicant contended that a fine of $15,000 was extremely burdensome or crushing, in circumstances where the sentencing judge accepted that, at the date of the plea, the applicant earned between $518 to $620 net per week. (The amount varied depending on whether he worked a four or five day week).
At the time of the plea, the applicant’s wife had been on maternity leave since shortly before the birth of their child. Although her employer was willing for her to resume work, her ability to do so was uncertain, due to a medical condition affecting her hands. (We were informed that the applicant’s wife had resumed full-time employment, although she was likely to move to part-time work in future and that the condition of her hands had resolved).
The sentencing judge was also informed that the applicant and his wife owned a house in a Melbourne suburb, estimated to be worth approximately $250,000, which was subject to a mortgage. Although there was no evidence of the precise amount secured by the mortgage, it was submitted that it was approximately half the total value of the property. The mortgage repayments were estimated to be about $1,200 per month. The applicant had savings of about $30.
Before us, counsel for the applicant submitted that if his wife’s income were excluded, after the mortgage payment was deducted the applicant would have only about $1,200 per month with which to satisfy his household and family expenses. In such circumstances, the payment of the fine would either take years or would necessitate the remortgaging of the family home.
The applicant, however, by his own account, has a not insignificant equity in a joint or co-owned property, current employment and a steady employment history. The prospect that his wife would again contribute to the family income has been realised, although the extent of her future contribution is uncertain.
Further, although on 1 November 2006 the applicant did not apply to pay the fine by instalments, but instead sought a stay, it remains open to him to apply for time to pay, to pay the fine by instalments or to perform unpaid community work in lieu of the fine, pursuant to s 55 of the Sentencing Act 1991.
So far as appears, although the fine represents a heavy liability to the applicant, it is well within his financial capacity and reflects the sentencing judge’s reasoned consideration of his financial circumstances.
Fine outside the range
The applicant also submitted that a fine of $15,000 was beyond the range of fines for the offence.
The largest fine contained in a chart presented to the sentencing judge was the sum of $3,500, imposed in Re Hussein.[1] The fine of $3,500 in Re Hussein was imposed in relation to a count associated with another count, for which 12 months’ imprisonment (albeit with release pursuant to a recognisance release order) was imposed. Buchanan JA observed that the count for which the fine was imposed could properly be regarded as ‘but a particular’ of the count for which imprisonment was imposed. His Honour’s rejection of the view that a fine of $3,500 was manifestly inadequate must be viewed in the light of that characterisation, together with the peculiar restraints applicable to a Crown appeal against sentence. As the learned sentencing judge observed, the most comparable cases in the chart involved terms of imprisonment, although they were wholly suspended or involved immediate release. Many of the examples, including Re Hussein, were decided under s 29D of the Crimes Act 1914 (Cth), which specified maximum penalties of a term of ten years imprisonment and a fine of $10,000. They are therefore of limited value as a guide to the range of fines currently appropriate under s 117D(1) of the Act.
[1][2003] VSCA 187.
From 7 September 2000, the maximum penalty applicable to the applicant’s offence was, pursuant to the Excise Amendment (Compliance Improvement) Act 2000, increased to imprisonment for two years, or the greater of a fine of 500 penalty units and five times the duty that would be payable. While the applicant contended that a maximum fine was a less relevant guide in circumstances where a maximum amount was not fixed for a particular offence but fluctuated in accordance with the duty payable on the quantity of tobacco, as Nettle JA observed in the course of the hearing, an ad valorum penalty itself suggests the gravity of the crime.
In the present case, the fine imposed was only 6 per cent of the maximum fine now provided for. In my opinion, it is not outside the range of penalties which might reasonably be imposed for the applicant’s offence, given that the available data presented to the primary judge largely included penalties involving sentences of imprisonment, which were imposed before the maximum penalty for the applicant’s offence was increased. The applicant’s subsidiary role was, in my view, adequately recognised by the imposition of a very low proportion of the maximum fine.
While the prosecutor, in response to a question of the sentencing judge, stated that ‘there have been fines … in the region of upwards of $5000 to $5000 to $10,000’, she qualified her statement by observing that ‘it has to be a substantial fine based on the maximum …’ and was dependent on the facts of the individual case, and the defendant’s circumstances. Therefore, while the learned sentencing judge imposed a fine which exceeded the maximum specific amount advanced by the prosecutor, the quantum was consistent with the prosecutor’s submission taken in context.
Delay
Counsel for the applicant argued that the sentencing judge did not give sufficient weight to the delay between the date of the offence on 8 April 2003, the issue of the charges in April 2004 and the final hearing in November 2006.
The applicant, (who was initially charged with both the offence under s 117D(1) and a charge of possession under s 117C(1) of the Act), entered pleas of not guilty to both charges.
The charge and summons were issued on 29 April 2004 in the Melbourne Magistrates’ Court and, at a filing hearing on 17 May 2004, were adjourned for a committal mention on 22 July 2004. At the committal mention, leave was granted for the cross-examination of two witnesses at a contested committal hearing listed for 17 February 2005.
At the committal hearing, the charges were amended to replace the word ‘knowing’ with ‘knowing or being reckless as to whether’. One witness was cross-examined. The applicant was committed to stand trial in the County Court.
At a case conference on 27 April 2005, the matter was listed for trial on 1 September 2005, with an estimated duration of three days. At a directions hearing on 4 August 2005, the trial date was confirmed, but on 19 August 2005, the matter was listed and the applicant sought that the trial date be adjourned, due to inability to pay the legal costs and concerns about his wife’s pregnancy.
A mention on 3 October 2005 was adjourned (apparently because the applicant had changed his solicitors) to 14 October 2005, at which date the applicant’s legal representative indicated that the matter had been resolved on the basis that the Crown would accept a plea of guilty to the charge of unlawful possession. The trial date was vacated and a plea hearing was listed for 29 March 2006. On 29 March 2006, however, the applicant did not wish to plead guilty. The matter was therefore listed for trial on 13 November 2006. At a directions hearing on 9 October 2006, the trial date was confirmed.
On 13 November 2006, the applicant pleaded guilty to one count, and the plea proceeded before the learned sentencing judge, who heard submissions.
Appropriate weight must be accorded lengthy delay which cannot be attributed to the offender,[2] and to efforts at rehabilitation during the relevant period. As his counsel conceded, the applicant’s conduct, although not wholly responsible for the delay, contributed to it, as adjournments were granted to accommodate his requests on 19 August, necessitated by his change of representation, and his change of mind about a proposed plea of guilty. Allowing that the applicant was entitled to defend the charge, save for the adjournments granted to accommodate his requirements, the sentencing would have taken place as scheduled on 1 September 2005.
[2]R v Cockerell [2001] VSCA 239, [10]; R v Tiburcy [2006] VSCA 244, [25] and [28].
Fine not manifestly excessive
The sentencing judge took into account, to an appropriate extent, the lengthy period of delay and the absence of any subsequent offending. The applicant’s previous good character and his plea on the basis of recklessness were also, in my view, properly taken into account. His Honour recognised the applicant’s subsidiary role in the unlawful conduct and his consequent lower culpability. As the learned sentencing judge observed, however, the offence is prevalent and serious. The courier’s function is frequently an essential step in a process calculated to defraud the Commonwealth of excise. General deterrence was therefore of paramount importance.
Allowing for mitigating factors, as the sentencing judge did, there is no indication of any undue extremity in his approach and, in terms of Cranssen v R,[3] the fine is in no way out of proportion to the impropriety of his conduct or the kind of penalty which would suffice as a deterrent.
[3](1936) 55 CLR 509.
Conclusion
In my opinion, leave to appeal should be refused.
NETTLE JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
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