R v Bekdache - [2018] NSWDC 9

District Court

New South Wales

Medium Neutral Citation: R v Bekdache [2018] NSWDC 9
Hearing dates: 11 December 2017
Date of orders: 02 February 2018
Decision date: 02 February 2018
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is sentenced to imprisonment for 2 ½ years. He is to be released after serving 12 months of that sentence on a recognizance self in the sum of $5000 to be of good behaviour for the balance of the sentence.
Order the amount of $18,000 is forfeited to the Commonwealth

Catchwords: CRIMINAL LAW – Sentence – Import tobacco product with the intention of defrauding revenue – Loss to the Commonwealth – Comparison with tax evasion and Social Security fraud - Attempts to reduce tobacco consumption – Prior good character – Hardship to 3rd parties – Offer to pay duty evaded.
Legislation Cited: Customs Act
Customs Amendment (Smuggled Tobacco) Bill
Category: Sentence
Parties: The Crown
Mahamad Bekdache
Representation:
Counsel:
Mr G James QC – The offender
Solicitors:
Director of Public Prosecutions (Cth) – Crown
AHA Lawyers – The offender

File Number(s): 2016/323131

SENTENCE

The offender is to be sentenced for one offence of importing tobacco products with the intention of defrauding the revenue contrary to section 233BABAD(1) of the Customs Act 1901 (Cth). The maximum penalty for that offence is 10 year’s imprisonment and/or a fine of up to five times the duty that would have been payable.
The offender has caused a loss to the Commonwealth of almost $1,000,000, $947,894.40 to be more precise. That is a significant amount in anyone's language and a good indication that this offence was one of substantial objective gravity . A person who evaded personal income tax of $1,000,000 or defrauded social security of that sum would be regarded as a seriously dishonest criminal, but there is one aspect of what the offender did which arguably makes his conduct more serious - his evasion of the amount of duty payable came when he imported an addictive substance capable of causing harm to those who use it and to society generally.
True it is that this substance can be bought quite legally at an enormous number of locations throughout Australia, but it is undeniable that of recent times the Federal Government has made substantial efforts to reduce tobacco consumption in this country, including by imposing substantial duty on the importation of tobacco, duty which the offender avoided paying though his illegal endeavours.
As the now former MP David Feeney noted during debate on the Customs Amendment (Smuggled Tobacco) Bill, the charging of a duty on tobacco imports has two objectives. Firstly, as with personal income tax for example, the duty is a source of revenue. But there is a second purpose too – the reduction of tobacco consumption because of the harm it causes.
The offender managed to obtain a contact in China. He communicated with that contact in order to organise the importation of more than a tonne of tobacco in a shipping container. He…

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 Bekdache

Details

AGLC: R v Bekdache [2018] NSWDC 9
Case: [2018] NSWDC 9
Decision Date: 02 February 2018

CaseChat Overview and Summary

In the matter of R v Bekdache, the defendant was charged with importing tobacco products with the intention to defraud the revenue. The case was heard in the relevant Australian court, where the primary issue was to determine the appropriate sentence for the defendant's actions. The defendant had imported tobacco products into Australia without paying the necessary duties, intending to sell them and profit from the sale. The court had to consider various factors in determining the sentence, including the loss to the Commonwealth, the nature of the offence in comparison to other serious offences like tax evasion and Social Security fraud, the defendant's attempts to reduce tobacco consumption, the defendant's prior good character, the potential hardship to third parties, and the offer to pay the evaded duty.

The court took into account the severity of the offence, noting that the defendant had knowingly imported goods without paying the required duties, resulting in a significant financial loss to the Commonwealth. The court compared the offence to other serious crimes, such as tax evasion and Social Security fraud, and found that the offence carried a similar level of seriousness. The court also considered the defendant's efforts to reduce tobacco consumption, which was seen as a positive aspect, but not enough to mitigate the seriousness of the offence. The defendant's prior good character was taken into account, as was the potential hardship to third parties, such as the defendant's family. The court also considered the defendant's offer to pay the evaded duty, which was seen as an attempt to rectify the situation.

After weighing all the relevant factors, the court sentenced the defendant to imprisonment for 2 ½ years. The court determined that the defendant should serve 12 months of the sentence before being released on a recognizance of $5000, with the condition that the defendant must be of good behaviour for the remainder of the sentence. The court also ordered that the sum of $18,000 be forfeited to the Commonwealth. This sentence reflects the court's view that the defendant's actions were serious and warranted a significant punishment, while also taking into account the various mitigating factors presented during the trial.

Orders

Orders of the court

The offender is sentenced to imprisonment for 2 ½ years. He is to be released after serving 12 months of that sentence on a recognizance self in the sum of $5000 to be of good behaviour for the balance of the sentence.

Order the amount of $18,000 is forfeited to the Commonwealth

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Bekdache [2018] NSWDC 9
Hearing dates:	11 December 2017
Date of orders:	02 February 2018
Decision date:	02 February 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment for 2 ½ years. He is to be released after serving 12 months of that sentence on a recognizance self in the sum of $5000 to be of good behaviour for the balance of the sentence. Order the amount of $18,000 is forfeited to the Commonwealth
Catchwords:	CRIMINAL LAW – Sentence – Import tobacco product with the intention of defrauding revenue – Loss to the Commonwealth – Comparison with tax evasion and Social Security fraud - Attempts to reduce tobacco consumption – Prior good character – Hardship to 3rd parties – Offer to pay duty evaded.
Legislation Cited:	Customs Act Customs Amendment (Smuggled Tobacco) Bill
Category:	Sentence
Parties:	The Crown Mahamad Bekdache
Representation:	Counsel: Mr G James QC – The offender Solicitors: Director of Public Prosecutions (Cth) – Crown AHA Lawyers – The offender
File Number(s):	2016/323131