R v Medalian

Case [2019] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MEDALIAN

[2019] SASCFC 40

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)

23 April 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH

Application for permission to appeal against sentence by Commonwealth Director of Public Prosecutions – where respondent pleaded guilty to the Commonwealth offence of smuggling tobacco with the intent to defraud the revenue – where respondent sentenced to a period of imprisonment on a home detention order under the Sentencing Act 2017 (SA) s 71 before release on a recognizance release order under the Crimes Act 1914 (Cth) s 19AC – whether sentence authorised by law – whether sentence manifestly inadequate.

Held, per Bampton J (Kourakis CJ and Parker J agreeing), granting permission and allowing the appeal – the sentence was not authorised by law, respondent resentenced.

Customs Act 1901 (Cth) s 108, s 203, s 233BABAD; Criminal Law (Sentecncing) Act 1988 (SA) s 33BB; Crimes Act 1914 (Cth) Pt IB Div 4, Pt IB Div 5, s 19AC, s 20, s 20AB; Sentencing Act 2017 (SA) s 71, s 72, s 96; Correctional Services Act 1982 (SA) Pt 4 Div 7, referred to.
R v Tran [2019] SASCFC 5; Hili v The Queen (2010) 242 CLR 520; Atanackovic v The Queen (2015) 45 VR 179; R v Kopa; Ex parte Director of Public Prosecutions (Cth); R v Istogu; Ex parte Director of Public Prosecutions (Cth) (2004) 206 ALR 197; R v Pham (2015) 256 CLR 550, applied.
R v Saleh (2015) 257 A Crim R 212; R v Zhang (2017) 265 A Crim R 113, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"recognizance", "sentencing order"

R v MEDALIAN
[2019] SASCFC 40

Court of Criminal Appeal:  Kourakis CJ, Bampton and Parker JJ

  1. KOURAKIS CJ:    I would allow the appeal and join in the sentencing orders proposed by Bampton J for the reasons given by her Honour.

  2. BAMPTON J:      Mohammad Taghi Medalian pleaded guilty on the eve of his trial in the District Court to the offence of smuggling tobacco with the intent to defraud the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) (“the Customs Act”).  The maximum penalty for this offence is 10 years’ imprisonment and/or a fine of $3,627,072.003 or otherwise 1,000 penalty units.

  3. On 18 May 2018, Mr Medalian was sentenced to two years’ imprisonment reduced by “10% reduction and a bit of rounding down of the sentence” to one year and nine months.[1]  The sentencing Judge ordered that Mr Medalian…

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R v Medalian [2019] SASCFC 40
Case
[2019] SASCFC 40
Decision Date

CaseChat Overview and Summary

The Commonwealth Director of Public Prosecutions sought permission to appeal against a sentence imposed on Mr Medalian, who had pleaded guilty to defrauding the Commonwealth by smuggling tobacco. The dispute concerned whether the sentence, which involved a period of imprisonment on a home detention order followed by release on a recognisance release order, was authorised by law and whether it was manifestly inadequate. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Bampton J, and Parker J.

The central legal issues before the court were whether the sentencing judge had applied the correct legal principles in imposing the sentence and whether the sentence imposed was so inadequate as to warrant interference on appeal. Specifically, the court had to determine if the combination of a home detention order and a subsequent recognisance release order was a lawful sentencing disposition for the offence of defrauding the Commonwealth under the relevant Commonwealth legislation.

Bampton J, with whom Kourakis CJ and Parker J agreed, found that the sentence imposed was not authorised by law. The court reasoned that the sentencing judge had erred by applying state sentencing provisions in a manner that was inconsistent with the Commonwealth’s sentencing framework for the offence. The court noted that the offence carried a maximum penalty of 10 years imprisonment, a significant fine, or both, and that the amount of duty evaded was substantial. In resentencing, the court considered the gravity of the offence, the amount of revenue defrauded, Mr Medalian's lack of prior offending, his good character, and his compliance with the home detention order.

The Full Court granted permission to appeal, allowed the appeal, and set aside the original sentence. Mr Medalian was resentenced to two years imprisonment, reduced by 10 percent for his guilty plea, resulting in a sentence of one year, nine months, and 19 days, backdated to the original sentencing date. Given that Mr Medalian had already served nine months on home detention, the court ordered his immediate release on a recognisance release order for the full term of the resentenced term, with a condition of good behaviour.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would grant permission to appeal, allow the appeal on ground 1, and resentence Mr Medalian. BackgroundThe offending Mr Medalian travelled to Iran from 9 February to 9 March 2016. On 12 May 2016, Australian Border Force (“ABF”) officers examined a shipping container originating in Iran (“the container”), consigned to MedalCo, deliverable to Mr Medalian’s home address. The consignor was Mehrdad Medalian. The container’s import declaration stated its contents as sesame oil, rock candy, tomato concentrate, jam fruit jellies, food syrups, and pomegranate drink. There was no declaration of tobacco on the import declaration. The contents of the container were x-rayed, and due to anomalies, cartons labelled as Yasmin brand Wrapped Saffron Rock Candy Swizzle Sticks were opened to reveal concealed Al Fakher brand molasses tobacco. The total weight of the molasses tobacco in the container was 1,080 kilograms, having an approximate payable duty of $725,414.40. On 13 May 2016, ABF officers repacked the container, removing 720 kilograms of the tobacco and leaving 360 kilograms marked with a unique identifier, and arranged for the container’s onward delivery under observation. On 16 May 2016, search and seizure warrants were obtained for Mr Medalian’s home and work addresses pursuant to s 108 and s 203 of the Customs Act. At the consignee’s request to the delivery company, the container was ultimately delivered to Mr Medalian’s business address. On 17 May 2016, ABF officers observed the container being delivered to Mr Medalian’s business address. The officers observed Mr Medalian opening the container. The officers then executed their search and seizure warrants for Mr Medalian’s business address, finding Mr Medalian standing by the open container. Officers seized the tobacco and Mr Medalian’s iPhone. The warrants for Mr Medalian’s home address were also executed and a number of electronic items were seized. Mr Medalian gave an interview with the ABF officers at the time of the execution of the warrants on 17 May 2016. Mr Medalian’s iPhone was forensically examined and images of Al Fakher brand molasses tobacco and a note with the name and address of the Al Fakher head office in Iran were recovered. SMS and chat threads on the messaging application “Telegram” in Persian/Farsi were also recovered and translated to reveal:1A text message from Mr Medalian to an unknown person about the payment of $4,000 and stating Mr Arman Sakeat as his contact in Iran;2A Telegram chat between Mr Medalian and another person discussing the risk of packing “cigarettes as well”;3A Telegram chat between Mr Medalian and another person asking which brand of tobacco to buy;4A Telegram chat between Mr Medalian and another person where Mr Medalian states that he was robbed while purchasing tobacco in Mowlavi, Iran; and5A Telegram chat between Mr Medalian and another person about the purchase of tobacco. Mr Medalian was arrested on 2 June 2016 and charged with the offence of smuggling tobacco with the intent to defraud the revenue, contrary to s 233BABAD of the Customs Act:(1) A person commits an offence if: (a) the person imports goods; and (b) the goods are tobacco products; and (c) the person imports the goods with the intention of defrauding the revenue.…(4) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 10 years, a fine not exceeding the amount worked out under subsection (5), or both. …(5) For the purposes of subsection (4), the amount is: (a) if the Court can determine the amount of the duty that would have been payable on the goods if the goods had been entered for home consumption on:(i) if the day on which the offence was committed is known to the Court—that day; or (ii) if that day is not known to the Court—the day on which the prosecution for the offence was instituted; 5 times the amount of that duty; or(b) otherwise—1,000 penalty units.Analysis

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court was also referred to R v Zhang,[9] where Mr Zhang pleaded guilty to three counts of importing cigarettes and loose tobacco with intent to defraud the revenue. The importation of tobacco led to the evasion of $463,365.67 in duty. He was sentenced to four years and eight months, with a non-parole period of two years, for all offending. For the three counts of importing cigarettes and loose tobacco, Mr Zhang was sentenced to a head sentence of two years and seven months for his role as a principal in the offending committed over six months. This Court dismissed an appeal against the severity of the sentence. Mr Zhang was 24 years of age, had no priors and entered an early guilty plea. The Director pointed out that revenue avoided by Mr Zhang was substantially less than that avoided by Mr Medalian and did not involve travel overseas to source the product.[9] R v Zhang (2017) 265 A Crim R 113.Conclusion I would grant permission to appeal. I would allow the appeal on ground 1. I would set aside the sentence imposed on 18 May 2018 and resentence Mr Medalian. In resentencing, I bear in mind sentencing practices throughout Australia for similar offending. I note that the use of molasses tobacco is not common in Australia. The unique circumstances of this matter where Mr Medalian, has “served” nine months on the HDO and complied with the strict conditions of home detention, is a relevant matter in arriving at an appropriate sentence. I take into account Mr Medalian’s lack of prior offending, his otherwise good character, and his contribution to the community. The sentence I would impose to reflect the serious nature of the offending and Mr Medalian’s personal circumstances is a sentence of two years’ imprisonment reduced by 10 percent on account of his guilty plea. This results in a sentence of one year, nine months and 19 days backdated to 18 May 2018. Having regard to the fact that Mr Medalian has spent nine months since the date of sentence on strict conditions of home detention, in the particular circumstances of this matter, I would order that Mr Medalian be immediately released on a RRO pursuant to s 20(1)(b) of the Crimes Act for the term of the sentence I would impose. I would impose as a condition of the RRO that Mr Medalian be of good behaviour for the term of the RRO. PARKER J: I agree with the reasons of Bampton J and the orders that she proposes.

Ratio Decidendi

Legal Principle Established

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