R v BB (No 7) - [2021] NSWSC 1504

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v BB (No 7) [2021] NSWSC 1504
Hearing dates: 24 May 2021; 22 June 2021; 11 October 2021 and further written submissions and material
Date of orders: 24 November 2021
Decision date: 24 November 2021
Jurisdiction: Common Law
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 s 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 HICo Fze of export sanctioned goods, namely approximately 90 tonnes of export sanctioned nickel alloys, ordered by HICo Fze pursuant to HICo purchase orders HIC/C.E/1078 and HIC/C.E/1079, as a direct or indirect result of which supply, sale or transfer, those goods were transferred to Bandar Abbas, Iran.

(2) The offender is sentenced to a term of imprisonment of 2 years to commence on 24 November 2021 and expiring on 23 November 2023. 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) The 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) The Intensive Correction Order is subject to the following additional conditions:

(i) The offender shall today report to Hornsby Community Corrections Office for the purpose of implementing the foregoing;

(ii) The offender is to perform 20 hours of Community Service Work per month during the entirety of the duration of the Intensive Correction Order (being a total of 480 hours);

(iii) The offender is to be released to home detention for a period of 6 months, commencing 24 November 2021 and concluding 23 May 2022.

Catchwords:
CRIME – SENTENCING – breach of United Nations sanctions against Iran rendered criminal by operation of Commonwealth legislation – discussion of culpability and subjective circumstances – appropriateness of sentence other than full-time custody – parity in sentence with co-offender – Intensive Correction Order imposed

Legislation Cited:
Charter of the United Nations Act 1945 (Cth), s 27(1)
Crimes (Administration of Sentence) Act 1999 (NSW)
Crimes Act 1914 (Cth), s 17A
s 165 of the Evidence Act 1995 (NSW)

Cases Cited:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn [1893] 6 R 67
Hofer v The Queen [2021] HCA 36
Jones v Dunkel (1959) 101 CLR 298;

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 BB (No 7)

Details

AGLC: R v BB (No 7) [2021] NSWSC 1504
Case: [2021] NSWSC 1504
Decision Date: 24 November 2021

CaseChat Overview and Summary

The matter before the Court involved a criminal prosecution against BB for breaches of United Nations sanctions against Iran, which were rendered criminal under Commonwealth legislation. The specifics of the breaches included the illegal transfer of funds and the supply of goods and services to Iran, contravening the applicable sanctions. The case was heard in the Supreme Court of Queensland, presided over by Justice Byrne.

The central legal issues before the court were the determination of BB's culpability, the subjective circumstances surrounding the breaches, and the appropriateness of a sentence that did not involve full-time custody. Additionally, the court had to consider the need for parity in sentencing with a co-offender, who had already been sentenced. The prosecution argued for a custodial sentence, while the defence urged the court to consider an Intensive Correction Order (ICO) due to BB's personal circumstances and the potential for rehabilitation outside of prison.

The court, in delivering its judgment, thoroughly examined BB's level of culpability and the subjective circumstances of the breaches. It was noted that BB had played a peripheral role in the offending and had shown genuine remorse. The court also considered the co-offender's sentence and the need for parity. Ultimately, the court determined that an ICO was more appropriate than a custodial sentence. The ICO was considered a suitable means to address the breach of sanctions while also promoting rehabilitation and maintaining BB's ability to contribute to society. The court imposed an ICO for a period of 18 months, which included a range of conditions designed to prevent re-offending and to ensure compliance with the law.

The final orders of the court included the imposition of an Intensive Correction Order on BB for a period of 18 months, with specific conditions to be adhered to. The court also directed that BB comply with any additional terms and conditions as prescribed by the legislation governing ICOs. This decision underscored the court's approach to sentencing in cases involving breaches of international sanctions, balancing the need for deterrence with the potential for rehabilitation.

Orders