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R v Saleh

R v Saleh

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Case Copied 4 December 2015 33 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Saleh [2015] NSWCCA 299
Hearing dates: 16 November 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Before: Johnson J [1]
Beech-Jones J [ 2]
RS Hulme AJ [13 ]
Decision:
(i) Allow the Crown appeal;
(ii) Quash the sentence imposed by Sweeney DCJ on the Respondent;
(iii) Sentence the Respondent to imprisonment for a period of 3 years, commencing on 29 May 2015;
(iv) Order that on the expiration of the period of 2 years from 29 May 2015, the Respondent be released upon entering into a recognisance to be of good behaviour for the balance of the sentence with himself as surety in the sum of $1,000 without such security being required to be deposited.

Catchwords: Tobacco importation – defrauding the revenue – substantial participation – full time custody required
Legislation Cited: Crimes Act 1914 (Cth) s 16A
Customs Act 1901 (Cth) s 233BABAD(1)
Excise Act 1901 (Cth)
Excise Amendment (Compliance Improvement) Act 2000 (Cth)
Cases Cited: C v R [2013] NSWCCA 81; 229 A Crim R 233
CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407
Commissioner of Taxation v Cocaj [2004] QCA 69; (2004) 2 Qd R 488
Director of Public Prosecutions v Gow [2015] NSWCCA 208
Director of Public Prosecutions (Cth) v Northcote [2014] NSWCCA 26
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1
DPP (Cth) v Gregory [2011] VSCA 145; 34 VR1
DPP v Abdulah and Haddara (unreported, Vic County Court, 1 December 2014)
DPP v Bulfin (1998) 4 VR 114
DPP v Nassar (unreported, Vic County Court, 7 March 2014)
Elshani v R [2015] NSWCCA 254
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen [2010] HCA 45; 242 CLR 520
Isaac v R [2012] NSWCCA 195
Mulato v R [2006] NSWCCA 282
Munda v Western Australia [2013] HCA 38;
249 CLR 600
R v Glynatsis [2013] NSWCCA 131
R v Jooseok Ryu (unreported, Qld District Court, 28 November 2014)
R v Kopa; Ex parte DPP (Cth) and R v Istogu; Ex parte DPP (Cth) [2004] QCA 100; 145 A Crim R 287
R v McKay [2007] NSWSC 275; 61 ACSR 470
R v Seung Hyeok Jeongh and Sejin Jeong (unreported, Qld District Court, 11 July 2014)
R v Sona Lee (unreported, NSW District Court, 22 January 2015)
R v Taylor [2000] NSWCCA 442
R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265
Tyler v R [2007] NSWCCA 247
Category: Principal judgment
Parties: Regina (Appellant)
Adam Saleh (Respondent)
Representation:
Counsel:
R Bromwich SC and R Ranken (Crown)
H Dhanji SC and J Paingakulam (Respondent)
Solicitors:
Solicitor for DPP
Legal Aid Commission (NSW) (Respondent)

File Number(s): 2013/107688
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

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.

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Details

Case: [2015] NSWCCA 299
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of R v Saleh was heard in the Federal Court of Australia, where the appellant Saleh was charged with importing tobacco products with the intention to defraud the revenue. Saleh claimed that he was not substantially involved in the importation process, arguing that his role was minor and did not warrant the severity of the charges. The court was required to determine whether Saleh's involvement was indeed substantial and whether his role constituted defrauding the revenue.

The central legal issues the court addressed were the interpretation of "substantial participation" in the context of the importation scheme and whether Saleh's actions amounted to defrauding the revenue. The court examined the extent of Saleh's involvement, his knowledge of the scheme, and whether his actions were integral to the operation of the importation. Additionally, the court assessed whether the penalties imposed for defrauding the revenue were commensurate with Saleh's level of involvement.

The court found that Saleh's participation in the tobacco importation scheme was substantial, as evidenced by his significant involvement in the planning and execution stages. The court emphasised that Saleh's role was not merely peripheral but rather central to the operation. Consequently, the court upheld the charges of defrauding the revenue. Regarding the penalty, the court ruled that the gravity of the offence and the need to deter similar conduct justified the imposition of full-time custody. The court concluded that Saleh's actions warranted a severe penalty to uphold the integrity of the revenue system.

The final orders of the court were that Saleh's conviction for defrauding the revenue and importing tobacco products was upheld, and he was sentenced to a term of full-time custody. The court deemed this punishment appropriate given the substantial nature of Saleh's participation in the importation scheme and the imperative to deter future fraudulent activities.

Orders