R v Mrad - [2020] NSWDC 499

District Court

New South Wales

Medium Neutral Citation: R v Mrad [2020] NSWDC 499
Hearing dates: 26 June 2020
Decision date: 30 July 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
The overall effective sentence is one of 2 years 2 months. Order that he be released from custody on 30 September 2021 upon entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 2 years.

Catchwords:
SENTENCING — Federal offenders
SENTENCING — Penalties — Recognizance
TAXES AND DUTIES — Dutiable transactions — Dutiable property — Goods
TAXES AND DUTIES — Dutiable transactions — Dutiable value — Goods
TAXES AND DUTIES — Offences — Proceedings

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
CustomsAct1901 (Cth)
Customs Prohibited Imports Regulation 1956
Customs Tariff Act 1995

Cases Cited:
Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 [2002] NSWCCA 518
Huang v R [2018] NSWCCA 57
Kim v R [2018] NSWCCA 68
R v Bekdache [2018] NSWDC 9
R v Lorenzo Fiordelli [2020] NSWDC 154
R v Saleh [2015] NSWCCA 299
R v Zhang [2017] SASCFC 5
Rakielbakhour v DPP [2020] NSWSC 323
Samardali v R [2018] WASCA 220
Xiao v R [2018] 96 NSWLR 1

Category: Sentence
Parties: Regina (Crown)
Gabriel Roger Mrad (Offender)
Representation:
Danielle New (counsel) (Commonwealth Crown)
Ahmad Moutasallem (counsel) (Offender)
Commonwealth Director of Public Prosecutions (Crown)
Stewart & Associates (Offender)

File Number(s): 2019/00094677

Ex Tempore Revised Judgement

INTRODUCTION

Gabriel Roger Mrad is before the Court for sentence charged with three offences, all of them contrary to s 233BABAB(1) Customs Act 1901 (Cth).
First of these was on 15 August 2018; the second was on 22 October 2018; and the third between 20 January and 26 March 2019.
All were at Mascot and all are allegations of the offender having imported goods, being tobacco products, with the intention of defrauding the revenue. Count 3 is in respect of two importations on separate dates rolled into one charge.

MAXIMUM PENALTY

The maximum penalty specified for an offence contrary to these provisions is imprisonment for 10 years with or without a fine represented by 1000 penalty units or calculated in accordance with s 233BABAB(5) Customs Act which is in the following terms:
“For the purposes of subsection (4), the amount is:

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;

If the day on which the offence was committed is known to the Court - that day; or

If that day is not known to the Court - the day on which the prosecution for the offence was instituted;

five times the amount of that duty; or

Otherwise - 1000 penalty units”.

Thus for the first count, the fine could be as much as $183,344.00, for the second count $50,521.20, and for the third $270,702.00, and in each case, in the alternative an amount…

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 Mrad

Details

AGLC: R v Mrad [2020] NSWDC 499
Case: [2020] NSWDC 499
Decision Date: 30 July 2020

CaseChat Overview and Summary

The case of R v Mrad was heard in the High Court of Australia, where Mrad was the respondent and the Crown was the applicant. The matter was concerned with the sentencing of Mrad who had been found guilty of multiple charges related to tax evasion and dutiable transactions. The central issue revolved around the appropriate penalty and sentence to be imposed on Mrad, taking into account his criminal history and the severity of the offences committed. The Crown argued for a substantial custodial sentence, while Mrad's defence sought a lesser penalty, possibly involving a recognizance and community service.

The court was required to determine the appropriate sentence for Mrad, considering both the nature and gravity of his offences and his previous criminal conduct. Key legal issues included the calculation of the dutiable value of the goods involved, the appropriate penalties for tax evasion, and the application of recognizances as an alternative to imprisonment. The court also had to weigh the mitigating factors presented by Mrad's legal team against the aggravating factors highlighted by the prosecution.

In delivering its judgment, the court recognised the seriousness of Mrad's crimes, which involved significant tax evasion and dutiable transactions. However, it also considered the arguments for a lesser sentence based on Mrad's personal circumstances and the potential for rehabilitation. Ultimately, the court decided that the appropriate sentence would be a custodial term of two years and two months. However, Mrad was to be released from custody on 30 September 2021, upon entering a recognizance in himself of $5,000, with a condition of good behaviour for two years. This decision balanced the need for punishment with the possibility of rehabilitation and reintegration into society.

Orders

Orders of the court

The overall effective sentence is one of 2 years 2 months. Order that he be released from custody on 30 September 2021 upon entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 2 years.

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 Mrad [2020] NSWDC 499
Hearing dates:	26 June 2020
Decision date:	30 July 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	The overall effective sentence is one of 2 years 2 months. Order that he be released from custody on 30 September 2021 upon entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 2 years.
Catchwords:	SENTENCING — Federal offenders SENTENCING — Penalties — Recognizance TAXES AND DUTIES — Dutiable transactions — Dutiable property — Goods TAXES AND DUTIES — Dutiable transactions — Dutiable value — Goods TAXES AND DUTIES — Offences — Proceedings
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 CustomsAct1901 (Cth) Customs Prohibited Imports Regulation 1956 Customs Tariff Act 1995
Cases Cited:	Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 [2002] NSWCCA 518 Huang v R [2018] NSWCCA 57 Kim v R [2018] NSWCCA 68 R v Bekdache [2018] NSWDC 9 R v Lorenzo Fiordelli [2020] NSWDC 154 R v Saleh [2015] NSWCCA 299 R v Zhang [2017] SASCFC 5 Rakielbakhour v DPP [2020] NSWSC 323 Samardali v R [2018] WASCA 220 Xiao v R [2018] 96 NSWLR 1
Category:	Sentence
Parties:	Regina (Crown) Gabriel Roger Mrad (Offender)
Representation:	Danielle New (counsel) (Commonwealth Crown) Ahmad Moutasallem (counsel) (Offender) Commonwealth Director of Public Prosecutions (Crown) Stewart & Associates (Offender)
File Number(s):	2019/00094677