R v Mourad - [2019] NSWDC 38

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Mourad [2019] NSWDC 38
Hearing dates: 11 January 2019
Date of orders: 11 January 2019
Decision date: 11 January 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Aggregate term of imprisonment of 3 years, after serving two years he is to be released on condition that he enter into a recognisance: at [40].

Catchwords: SENTENCING – multiple offences – import tobacco product with intent to defraud the revenue – guilty plea – no prior criminal history – unlikely to reoffend –specific and general deterrence – custodial sentence
Legislation Cited: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Cases Cited: Commissioner of Taxation v Cocaj [2004] QCA 69
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
R v Kopa (2004) 145 A Crim R 159
R v McKay [2007] NSWSC 275
R v Saleh [2015] NSWCCA 299
R v Zhang (2017) 265 A Crim R 113
R v Zhang (2017) 265 A Crim R 113
Samardali v The Queen [2018] WASCA 220
Xiao v R [2018] NSWCCA 2
Young v The Queen [2016] VSCA 149
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown – CDPP)
Mohamad Mourad (Offender)
Representation:
Ms Cathcart (Crown)
Mr G Thomas (Counsel for the offender)

File Number(s): 2016/254384

Judgment

RS Hulme AJ said in R v Saleh [2015] NSWCCA 299:

“Pre‑meditated offending for the rewards or benefits that criminality may bring, is a calculated risk. As the cases mentioned show, the rewards are not infrequently enormous. The criminality is often difficult to detect and it is impossible to believe that many people do not get away with it. Accordingly it behoves the courts to ensure that penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend.”

Mohamad Mourad, was born in January 1986, has no criminal record, and has pleaded guilty to two offences under s 233BABAD(1) of the Customs Act 1901 (Cth), of importing tobacco products with intent to defraud the revenue. These offences carry maximum penalties of ten years imprisonment.
The first offence involved the import of 1449 kilograms of Molasses tobacco defrauding the revenue of $961,730, The maximum fine applicable was $4,808,000.
The second count related to 375 kilograms of the same substance, evading the payment of duty in the sum $251,880. The maximum fine applicable, in that instance was $1,259,000.
He spent no time in custody since his arrest in August 2016.
The offending arose out of his operation as the sole director of a business operating under the name of Ozzy Hookah Pty Limited, which specialised in the sale of items used to smoke Molasses tobacco. He arranged the import of goods on the basis that they did not contain tobacco.
In relation to the first count, between 29 April 2015 and 24 September 2015, he arranged for the import of 59 cartons which contained different flavoured Molasses tobacco. He provided documents…

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 Mourad

Details

AGLC: R v Mourad [2019] NSWDC 38
Case: [2019] NSWDC 38
Decision Date: 11 January 2019

CaseChat Overview and Summary

The appellant, Mourad, was convicted of importing tobacco products with the intent to defraud the revenue. The case was heard in the court of appeal. The primary issue before the court was the appropriate sentencing for the appellant, who had pleaded guilty to the charges and had no prior criminal history. The court had to balance the principles of specific and general deterrence with the likelihood of reoffending.

The court considered the appellant's guilty plea, lack of criminal history, and the likelihood of him reoffending as mitigating factors. However, the court also needed to ensure that the sentence reflected the seriousness of the offence and served as a deterrent to others. After weighing these factors, the court determined that a custodial sentence was necessary to achieve both specific and general deterrence. The court sentenced the appellant to an aggregate term of imprisonment of three years, with the condition that he would be released after serving two years on the basis of a recognisance.

The court's reasoning emphasised the importance of deterrence in cases involving the importation of goods with the intent to defraud the revenue. The sentence was designed to reflect the gravity of the offence while also considering the appellant's personal circumstances. The court concluded that the sentence met the objectives of punishment, including retribution, deterrence, and rehabilitation. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Aggregate term of imprisonment of 3 years, after serving two years he is to be released on condition that he enter into a recognisance: at [40].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Mourad [2019] NSWDC 38
Hearing dates:	11 January 2019
Date of orders:	11 January 2019
Decision date:	11 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Aggregate term of imprisonment of 3 years, after serving two years he is to be released on condition that he enter into a recognisance: at [40].
Catchwords:	SENTENCING – multiple offences – import tobacco product with intent to defraud the revenue – guilty plea – no prior criminal history – unlikely to reoffend –specific and general deterrence – custodial sentence
Legislation Cited:	Crimes Act 1914 (Cth) Customs Act 1901 (Cth)
Cases Cited:	Commissioner of Taxation v Cocaj [2004] QCA 69 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 R v Kopa (2004) 145 A Crim R 159 R v McKay [2007] NSWSC 275 R v Saleh [2015] NSWCCA 299 R v Zhang (2017) 265 A Crim R 113 R v Zhang (2017) 265 A Crim R 113 Samardali v The Queen [2018] WASCA 220 Xiao v R [2018] NSWCCA 2 Young v The Queen [2016] VSCA 149
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown – CDPP) Mohamad Mourad (Offender)
Representation:	Ms Cathcart (Crown) Mr G Thomas (Counsel for the offender)
File Number(s):	2016/254384