R v YZ (a pseudonym)

[2025] NSWDC 98

District Court

New South Wales

Medium Neutral Citation:

R v YZ (a pseudonym) [2025] NSWDC 98

Hearing dates:

17 March 2025

Date of orders:

28 March 2025

Decision date:

28 March 2025

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

In respect of Sequences 1,7, and 8, taking into account the Sequence 5 matter and after deducting 25% for the pleas of guilty, the Offender is sentenced to an aggregate term of imprisonment of three (3) years to commence on 28 January 2025 and expire 27 January 2028.

The Offender is to be released on 27 January 2026, upon him entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) himself in the sum of $100, without security, for a period of two (2) years. That recognizance is to be subject to conditions.

Catchwords:

CRIME – Commonwealth offences – Tobacco offences – Customs and excise – Proceeds of crime – General deterrence for offences concerning the possession of tobacco which has not been subject to excise duty – General deterrence is a significant factor

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 7, s 8

Crimes Act 1914 (Cth) s 16, s 16A, s 16BA, s 17, s 17AC, s 19AC, s 20

Criminal Code Act 1995 (Cth) s 400.9

Customs Act 1901 (Cth) s 233BABAD

Taxation Administration Act 1953 (Cth) Sch 1 Cl 308

Cases Cited:

Alchikh v R [2007] NSWCCA 345

Bae v R [2020] NSWCCA 35

Bugmy v The Queen (2013) 249 CLR 571

Dungay v R [2020] NSWCCA 209

Green v R (2011) 244 CLR 462

Hoskins v R [2021] NSWCCA 169

Huang and Siu v R [2007] NSWCCA 259

Kim v The Queen [2016] VSCA 238

Lloyd v R [2022] NSWCCA 18

McGregor v R [2024] NSWCCA 200

Moiler v R [2021] NSWCCA 7

R v Butler [2024] NSWCCA 133

R v De La Rosa (2010) 79 NSWLR 1

R v De Simoni (1981) 147 CLR 383

R v El Hani [2004] NSWCCA 162

R v Jiao [2015] NSWCCA 95

R v Kopa; Ex parte DPP (Cth), R v Istogu; Ex parte DPP (Cth) [2004] QCA 100

R v Lin [2014] NSWCCA 254

R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253

R v Saleh [2015] NSWCCA 299

R v Zhang (2017) 265 A Crim R 113; [2017] SASCFC 5

Totaan v R [2022] NSWCCA 75

Category:

Sentence

Parties:

Rex (Crown)
YZ (a pseudonym) (Offender)

Representation:

Counsel:
W Bruffey (Crown)
S Boland (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Australian Criminal and Family Lawyers (Offender)

File Number(s):

2023/34354; 2023/286849

Publication restriction:

Pursuant to s. 7 of the Court Suppression and Non-publication Orders Act 2010 ('CSNPO Act'), and upon the grounds set out in ss. 8(1 )(c) of the CSNPO Act, the following is prohibited from publication:

a. any information that reveals, or tends to reveal, the Offender’s or the Co-offenders’ names.

b. any topic or fact referred to in any redacted portions of this judgment.

This judgment has been redacted. The unredacted version is to be treated by the parties consistently with the above orders.

JUDGMENT

Offences

1. The Offender has pleaded guilty to and is being sentenced for the following offences.

Seq	Offence	Description	Max Penalty
H93178274
1	1 x Sch 1 Cl 308 - 10(1)Taxation Administration Act 1953 (Cth)	On or about [REDACTED], the Offender possessed tobacco in Australia, it being reasonable to suspect that none of the following circumstances exist: excise duty has been paid or is not payable because of an exemption under a law of the Commonwealth and customs duty has been paid or is not payable because of an exemption under a law of the Commonwealth, and the weight of the tobacco was 500 kilograms or above.	5 years’ imprisonment or the greater of the following or both: (a) 1,000 penalty units (being $222,000); (b) the amount mentioned in s 308-10(2) of the Taxation Administration Act 1953 (Cth) multiplied by 5 (being $4,994,816.40)
H79212463
7	1 x s 233BABAD(2) Customs Act (Cth)	On [REDACTED] in New South Wales, the Offender had goods in his possession, being tobacco products, knowing that the goods were imported with intent to defraud the revenue.	10 years’ imprisonment or the greater of the following or both: (a) 1,000 penalty units (being $222,000); (b) the amount mentioned in s 233BABAD(5a) multiplied by 5 (being $52,343,420.85)
8	1 x s 400.9(1) Criminal Code (Cth)	On [REDACTED] in the State of New South Wales, the Offender dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and at the time of dealing the value of the money or property was $100,000 or more. ($740,810 of Australian currency)	Imprisonment for 3 years, or 180 penalty units ($56,340), or both.
Sequence 5 on H 79212463: On a s 16BA schedule and attached to Sequence 8 above
5	1 x s 400.9(1) Criminal Code (Cth)	On [REDACTED] in the State of New South Wales, the Offender dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and at the time of dealing the value of the money or property was $100,000 or more. ($200,000)	Imprisonment for 3 years, or 180 penalty units ($56,340), or both

The Facts

2. The parties have agreed as to extensive facts for the purpose of this sentence. The facts as agreed are, to say the least, comprehensive, but perhaps overly detailed. I think they can be summarised as follows.

H93178274 (Sequence 1)

3. The Offender was the driver of one of two parked trucks, parked back-to-back in [REDACTED]. On approach by New South Wales Police, the Offender and Co-offender, [REDACTED], fled the scene. The truck that the Offender was driving contained 632,200 tobacco cigarettes, weighing 666kg, as well as hookah tobacco and vapes. No excise duty had been paid on any of the tobacco. The amount of duty payable on that tobacco was $998,963.28.

H79212463 (Sequences 7 and 8 – 16BA; Sequence 5)

4. More than a year later in [REDACTED], the Offender dealt with the proceeds of crime, namely $200,000 in cash (Sequence 5 on a s 16BA schedule attached to Sequence 8). In September 2023, the Offender's home was the subject of a search and $740,810 of cash was seized, which money is reasonably suspected to be the proceeds of crime (Sequence 8). A second search of the Offender’s storage unit and truck uncovered 5683kg of tobacco products, including cigarettes and looseleaf tobacco. That tobacco was possessed by the Offender knowing that it was imported with intent to defraud the revenue. The revenue that was payable on that tobacco was $10,468,684.17 (Sequence 7).

Co-offenders

5. [REDACTED] were Co-offenders in relation to the offence on [REDACTED]. [REDACTED] was a Co-offender only in relation to the Sequence 5 matter.

6. [REDACTED] pleaded guilty to a cl 308 - 10 offence and was sentenced in the Local Court. On appeal to the District Court, he was sentenced to an 18-month Community Corrections Order.

7. [REDACTED] pleaded guilty to a cl 308 - 10 offence and was sentenced in the District Court to 12 months’ imprisonment but was directed to be released upon entering into a recognizance without surety in the sum of $500 pursuant to s 20(1)(b).

8. [REDACTED] was charged and sentenced solely for an offence contrary to s 400.9(1) in relation to the $200,000 given to him in August 2023 (Sequence 5). He was sentenced in the District Court to 9 months’ imprisonment commencing on 12 September 2024 and to be released on 5 December 2024 upon entering a recognizance in the sum of $100 without surety and to be of good behaviour for 12 months pursuant to s 20(1)(b) of the Crimes At 1914 (Cth). As he had already spent time in custody, he was immediately released.

9. To the extent that the offences for which the Offender is to be sentenced constitute a failure to surrender revenue in the form of taxation, it seems clear enough that [REDACTED], and perhaps [REDACTED], were closer to the source of that criminality than the Offender, or to put it another way, the Offender was lower down some notional hierarchy.

10. [REDACTED] supplied 666kg of tobacco to the Offender on [REDACTED]. [REDACTED] himself left 1867.54 kilograms of tobacco in his own truck during this incident (after having fled the scene).

11. [REDACTED] concluded that [REDACTED] “played an integral role in the transport of the tobacco products… even accepting a level of grandiosity or embellishment in the Offender’s comments.” [REDACTED] had no criminal convictions.

12. In [REDACTED], the Offender was supplied with tobacco by [REDACTED], who himself operated on behalf of someone referred to as “[REDACTED]”. [REDACTED] received $200,000 in relation to that supply and pleaded guilty to a single charge contrary to s 400.9 of the Criminal Code Act 1995 (Cth) (“Criminal Code”).

Pre-sentence custody/Bail conditions

13. The Offender was arrested on 8 September 2023. He remained in custody until 7 November 2023 when he was granted bail. He has spent 60 days in custody solely referable to Sequences 7 and 8.

14. Since 7 November 2023, he has been subject to restrictive bail conditions.

15. On behalf of the Offender, it has been submitted that these conditions may properly be characterised as constituting “quasi custody” and should be counted as if he was in actual custody for a discounted period.

16. The question is whether the conditions of bail “are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as “quasi-custody”.” Whether this test is satisfied is a question of fact for determination on a case-by-case basis: R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253 at [87]-[89] and [95]-[98] and R v Butler [2024] NSWCCA 133 (“Butler”) at [34].

17. I do not consider the terms of the bail that the Offender has been subject to fall into the category so as to be counted as some form of “quasi-custody." They are stringent, but to my mind are not so harsh and restrictive as to be treated as if in some sort of custody.

18. However, as was explained in Butler at [39], the significant period the Offender has spent with significant restrictions on his liberty are relevant to the amount of weight to be given to specific deterrence in this exercise.

General sentencing principles for tobacco matters

19. The Sequence 1 offence was introduced with effect from 25 August 2018. It is one of several new offences that are tiered according to the fault element and the quantity of tobacco involved. This offence has a threshold weight of 500kg, higher than the 5kg and 100kg threshold for offences cl 308 – 15 and cl 308 – 20 of the Taxation Administration Act 1953 (Cth) respectively. However, the mental element is one of “reasonable suspicion”, a lower mental element than offences against, e.g. cl 308 – 110, which carries a higher maximum penalty of 10 years’ imprisonment.

20. The Explanatory Memorandum to the Amending Bill made it clear that Parliament was concerned that the level of penalty then applicable did not provide sufficient deterrence for tobacco duty offences.

21. The sequence 7 offence was introduced in 2012 in a suite of reforms designed to reduce smoking in Australia and to introduce a penalty of imprisonment for tobacco smuggling. The clear purpose of the amending bill, as was made clear in the Second Reading Speech, was to curb the trade in illicit tobacco.

22. For all offences relating to the failure to pay duty on tobacco, the purpose of the legislation is twofold. Firstly, as to revenue raising, a failure to comply amounts to criminally depriving the Commonwealth of revenue it is legitimately entitled to. Secondly, there is a public health purpose, in that the significant duties imposed on tobacco are designed to make smoking a less attractive proposition for people, thus reducing their chances of becoming sick as a result of the well-known consequences of smoking tobacco.

23. Offences of this kind are notoriously prevalent and difficult to detect (R v Kopa; Ex parte DPP (Cth), R v Istogu; Ex parte DPP (Cth) [2004] QCA 100 at [20]). Accordingly, general deterrence is important.

24. In R v Zhang (2017) 265 A Crim R 113; [2017] SASCFC 5, the South Australian Court of Criminal Appeal, referred to R v Saleh [2015] NSWCCA 299, and enumerated several factors to be considered in sentencing for an offence of this kind.

General sentencing principles for money laundering

25. Sequences 8 and 5 are money laundering offences. Part 10.2 of the Criminal Code contains a series of offences varying in gravity according to the value of the money and the Offender’s state of mind.

26. All money laundering offences must be regarded as serious. Again, general deterrence plays an important role in sentencing for offences of this type: Huang and Siu v R [2007] NSWCCA 259; R v Jiao [2015] NSWCCA 95; R v Lin [2014] NSWCCA 254.

27. In Kim v The Queen [2016] VSCA 238, the Victorian Court of Appeal summarised the sentencing principles for money laundering offences.

Principles of federal sentencing

28. Ultimately, the Court must impose a sentence “that is of a severity appropriate in all the circumstances of the offence” (s 16A(1)). Section 16A(2) requires the Court to take into account the non-exhaustive list of factors in that subsection. A Court may only impose a sentence of imprisonment for a federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate (s 17A(1)). An aggregate sentence is available for Commonwealth offences: McGregor v R [2024] NSWCCA 200.

Section 16BA schedule

29. If as here, an offender both admits guilt in respect of the specified offence and wishes for the offence to be taken into account, the Court may, if it thinks fit, take into account that offence in passing sentence on the offences for sentence (s 16BA(2)).

Relevant sentencing factors (s 16A(2))

Nature and circumstances of the offending (s 16A(2)(a))

30. The Offender conducted a retail tobacconist business. The Offender’s role in relation to Sequence 1 was receiving and possessing 666kg of tobacco. The only available inference from the agreed facts is that the offending involved a significant degree of planning within the context of organised criminal activity. It is obvious that the Offender was involved in a criminal enterprise and was seeking to profit from the exercise. Indeed, he puts this explanation forward in mitigation.

31. The quantity equates to an avoided excise duty to the value of $998,963. That significant sum of money has been lost to the Commonwealth.

32. The financial gain the Offender himself expected would have been significant.

33. The sum of money the subject of Sequence 5 was double the threshold value of $100,000. That money was dealt with as part of a planned criminal activity with [REDACTED] concerning the sale and purchase of tobacco.

34. As to Sequences 7 and 8, a total of 5,683kg of tobacco is substantial. The quantum of the revenue lost was, to say the least, substantial, at $10,468,684.

35. Although there is no direct evidence of the place within the organised criminal operation the Offender occupied, the very large sum of money and the very large quantity of tobacco seized, indicates that the Offender had some sort of trusted role, but if placed on some sort of notional scale, probably towards the bottom. The Offender’s role was not limited to simply storing the tobacco. The text messages on the Offender’s phone indicate that the Offender was not a mere warehouseman or courier. Nor was his involvement in the criminal offending brief or unplanned, so much is clear from the temporal gap between Sequence 1 and Sequences 7 and 8. He had already been caught and charged for the Sequence 1 offence by the time he committed the Sequences 7 and 8 offences.

36. The Crown does not invite me to find that the Offender was involved in the actual importation or distribution of tobacco or rely on the messages as an aggravating factor on sentence. The Offender is not being charged with or to be sentenced on the basis of importation of the tobacco (R v De Simoni (1981) 147 CLR 383). However, I must have regard to the fact that the Offender’s culpability for possessing the tobacco is informed by the component of the charge that he knew that the tobacco was imported with the intent to defraud the revenue, and that lost revenue was significant.

37. I consider it to be entirely unhelpful to try and place the objective seriousness of the offending on some sort of notional scale described by reference to “low-range", “mid-range", et cetera. Rather, in my opinion, each of the tobacco offences is a serious example of that offending. True it is that, if placed in some notional hierarchy of the various criminals involved at various levels in getting the tobacco into Australia without paying duty, storing the tobacco, getting the tobacco to retailers so it could be sold, and distributing the proceeds, the Offender’s possession of the tobacco falls towards the very bottom of that hierarchy. If one was to try and equate the tobacco charges with possession of illicit drug charges, the Offender might be described as a low-level “warehouseman.” However, reminding myself that the charge is for possession only and is not for defrauding the Commonwealth by not paying the duty, the significant objective fact, which cannot be ignored, is the quantity of revenue lost to the Commonwealth, was, on any view of it, significant. The simple fact is the Offender was involved in the overall criminality that had as one of its goals and consequences, the non-payment of that revenue. Sequence 7 is obviously more objectively serious than Sequence 1 because, in the context of the history of Sequence 1, it cannot be sensibly suggested that Sequence 7 was some sort of one-off, out of character aberration.

38. As far as the proceeds of crime matters are concerned, again, the amount can only be described as significant.

Degree to which Offender has shown remorse and contrition; plea of guilty s 16A(f) & (g)

39. The guilty pleas were entered at the earliest opportunity which saved the community the expense of a trial: Bae v R [2020] NSWCCA 35 at [55].

40. The Crown submits, and I agree, that the assessment of the subjective value of the Offender’s pleas ought be tempered by the fact that the Offender’s pleas were entered in the face of what appeared to be overwhelming Crown cases.

41. On behalf of the Offender, it is submitted that a finding that the Offender is remorseful and contrite is appropriate given his early pleas of guilty, [REDACTED], and his long-term compliance with strict bail conditions. Mr Borenstein records that the Offender feels “deeply ashamed” in relation to the offending conduct. That he should feel this way is to be expected – he was incarcerated following a lengthy and productive working career, after attempting to run his own small business, and in circumstances where his two children were at an age to understand the implications of their father’s predicament. He was arrested in front of his children.

42. In circumstances where the Co-offender [REDACTED] received a discount of 25% in relation to his pleas, I consider a 25% discount is appropriate.

43. [REDACTED]

44. [REDACTED]

45. I am satisfied that the Offender has objectively demonstrated real contrition and remorse.

Deterrent effect and need for adequate punishment (s 16A(2)(j)-(ja), s 16A(2)(k))

46. The fact that the Offender engaged in repeated instances of criminal offending in June 2022 and August to September of 2023 points to a need for specific deterrence. This is especially so given that Sequences 7 and 8 were committed while the Offender was the subject of a Community Corrections Order for recklessly dealing with the proceeds of crime. He was charged in relation to sequence 1 in January 2023 and those proceedings were before the Court when he committed Sequences 5, 7 and 8. Against that, however, is the finding of real contrition and remorse consequent in part of the time he has already spent in custody, which the Offender and his family found onerous. This weighs against the need for specific deterrence.

46. As to general deterrence, it is a weighty factor but there is a real question here as to whether the Offender is a suitable candidate to be used as an example for general deterrence because of his mental health condition and childhood disadvantage.

Character, antecedents etc (s 16A(2)(m))

48. The Offender is now [REDACTED] years old.

49. In 2006 he received a s 9 bond for making a false statement to obtain money. On 27 November 2022 he was sentenced to a Community Corrections Order for recklessly dealing with the proceeds of crime. He was on that CCO at the time he committed Sequence 7 and 8. This disentitles him to leniency. At the time of the Sequences 7 and 8 offending, he had already been apprehended and charged for the Sequence 1 offence.

Childhood disadvantage/Mental condition

50. The law recognises that an offender’s background of social deprivation may reduce their moral culpability. A causal link between childhood deprivation and the offending behaviour is not required: Lloyd v R [2022] NSWCCA 18; Hoskins v R [2021] NSWCCA 169.

51. However, in Dungay v R [2020] NSWCCA 209, N Adams J said (at [143]) that what are described as “Bugmy type principles” have perhaps less weight in crimes involving careful planning.

52. The past and current state of an offender’s mental condition may be relevant under s 16A(2)(m) (R v De La Rosa (2010) 79 NSWLR 1). An offender’s moral culpability may be reduced where the state of a person’s mental health contributes to the commission of the offence in a material way. It need not be the sole, direct, or precipitating cause but merely “a” cause (Moiler v R [2021] NSWCCA 73).

53. The Offender’s upbringing was characterised by profound dislocation and suffering. His experiences as a child in Iran, as a refugee travelling to Australia (ultimately by boat, which sank at sea, from which he was rescued), and his time in long-term immigration detention as a minor are detailed in the report of Mr Borenstein. That is the factual underpinning to his previous diagnosis of depression for which he was first medicated in 2016/2017, and for Mr Borenstein’s conclusion that he suffers from chronic PTSD.

54. Despite that background, the Offender has a strong history of legitimate employment. In 2020, after working for a number of well-known companies, he purchased a ‘mini mart’. Trade within that business was slow and he was soon struggling. He had [REDACTED] dependants ([REDACTED]), and was concerned to ensure that they should not experience deprivation which had featured so significantly in his own childhood. It was in those circumstances that a co-accused introduced him to the opportunity to sell duty-free tobacco illegally through the shop and the offending conduct commenced.

55. In all of the circumstances, I am satisfied that:

1. the Offender’s childhood gives rise to considerations described in cases like Bugmy v The Queen (2013) 249 CLR 571; and

2. the chronic PTSD suffered by the Offender was the backdrop and context, but not direct cause, for the offending conduct in that:

1. he had financial responsibility for three dependants;

2. he experienced significant financial difficulties after having purchased a small business;

3. he consequently felt acute concern that his own children might suffer deprivation, and this concern was seen through the prism of his own experiences as a child; and

4. a co-offender introduced him to the illegal tobacco trade, and the offending conduct was motivated by the circumstances set out at (a) – (c) above.

56. Mr Borenstein’s opinion, which I accept, is that the Offender’s conduct “represents poor decision making at a time when he described activation of symptoms of severe depression, anxiety and PTSD.” He entered “survival mode”, which was a key characteristic of his difficult upbringing. This finding is of particular importance given the significant weight that must ordinarily be given to the principle of ‘general deterrence’.

Third-party hardship

57. The Offender’s family will experience hardship in the event that he is incarcerated. His wife suffers serious physical and mental ailments and requires “a significant level of support and assistance”. Her mental condition deteriorated precipitously while the Offender was held on remand, and she has “no other family member [she] can rely upon for assistance.” The Offender also has a [REDACTED] and the Offender’s children are attached to him. The hardship they would experience should be reflected in the sentence imposed irrespective of whether the relevant hardship is “no different to that which would normally be expected.”: Totaan v R [2022] NSWCCA 75 at [92].

Prospects of rehabilitation

58. The Crown submits that the Offender’s prospects of rehabilitation are at best guarded, emphasising that the Offender committed Sequences 7 and 8 while the subject of a Community Corrections Order for dealing with proceeds of crime and a year after the Sequence 1 offending. He also had a prior offence of making a false statement to obtain money for which he received a s 9 bond.

59. On behalf of the Offender, it is submitted that at least the following four matters operate in support of the Offender’s prospects of rehabilitation: first, his lengthy history of legitimate employment; second, his genuine contrition; third, his total compliance with very strict bail conditions since November 2023; [REDACTED].

60. I consider the Offender has probably been rehabilitated as a consequence of his experience of being apprehended, charged, spending time in custody, and going through this sentencing procedure.

61. I think the prospects of him reoffending are low. He has probably been rehabilitated and the goal of specific deterrence achieved.

Setting the sentence

Sentences imposed in other cases

62. The parties were unable to assist me with any directly comparable sentences to be used as ‘yardsticks’ that might serve to illustrate the possible range of available sentences for these offences, let alone the combination of these offences.

63. The offence in cl 308 – 10 is a relatively new offence provision, having been introduced in 2018, and there are not yet any appellate-level comparatives. The Crown has instead provided a range of first instance decisions acknowledging the limitations of the sentences as comparatives. Those cases demonstrate a broad range of outcomes.

64. The offences in s 233BABAD(2) and s 400.9(1) are likewise infrequently prosecuted, and there is a limited body of intermediate appellate decisions to assist.

65. In the absence of a body of comparable intermediate appellate authority, the assessment of the appropriate sentence must be based upon general sentencing principles, and with regard to the guidepost of the maximum penalty provided by Parliament.

Parity

66. In properly applying the parity principle, a court must consider the objective circumstances of the offending, each offender’s role, and any subjective factors: Green v R (2011) 244 CLR 462.

67. It seems to me that parity has little part to play here. The circumstances both objective and subjective and the charges themselves as between Co-offenders are very different.

68. Relevant distinguishing features between this Offender and the Co-offenders for the purpose of parity or disparity are as follows:

1. The Offender is to be sentenced for the very serious offences of Sequences 7 and 8, for which [REDACTED] were not.

2. Sequence 7 carries a maximum penalty of 10 years imprisonment, whereas [REDACTED] were sentenced to a cl 308 – 10 offence with a 5-year maximum penalty;

3. The Offender was on a Community Corrections Order at the time of the offence. [REDACTED] were not subject to bail or court orders;

4. [REDACTED] did not have any relevant criminal antecedents, yet the Offender has a criminal history;

5. [REDACTED] criminal antecedents did not include recent offending, unlike the Offender;

6. [REDACTED] pleaded guilty to possessing 1,867kg of tobacco and [REDACTED] pleaded guilty to possessing 1,585kg of tobacco, whereas Sequence 1 relates only to 666kg;

7. There was a finding in the case of [REDACTED] to indicate that he had actual knowledge of the value and nature of the products;

8. [REDACTED] was found to have a “more significant role in the enterprise” beyond that of a “low-level courier”;

9. The Offender’s role in relation to Sequences 7 and 8 evinces a higher degree of criminality and place within the criminal hierarchy compared to the offences of 29 June 2022, of which [REDACTED] were Co-offenders;

10. [REDACTED] was charged and sentenced (albeit to a term of imprisonment) only in relation to the $200,000 the subject of Sequence 5.

Imprisonment

69. The Crown submission is that, having regard to the threshold in s 17A and the Offender’s conduct and circumstances of this case, a sentence of fulltime imprisonment is the only appropriate penalty.

70. If the sentence of imprisonment imposed in respect of a federal offence or two or more federal offences does not exceed 3 years, the Court must make a single recognizance release order in respect of that sentence and must not fix a non-parole period (s 19AC(1)) subject to s 19AC(4)). The Crown, however, submits that the aggregate term must exceed 3 years.

71. The Offender has submitted that the appropriate outcome is, pursuant to s 20(1)(b) in relation to each charge, a sentence structured as a prison sentence, backdated to ensure that he is not returned to gaol and is instead released on a recognizance and subject to supervision of a Community Corrections officer (s 20(1A)); or in the alternative; an Intensive Corrections Order (ICO).

Resolution

72. Due to the objective seriousness of the offences inherent in the significant value of excise avoided, the value of the proceeds of crime, and the significant need for general deterrence, I am satisfied that no sentence other than imprisonment is appropriate.

73. I have found this a difficult matter. There is very little guidance in the decided cases on the tobacco offences to allow me to do anything more than approach the matter by reference to general sentencing principles, and the instinctive synthesis of the relevant factors that involves. The Co-offender’s cases are so different in almost every way that parity has little part to play, nor do the Co-offender’s sentences themselves assist in arriving at an appropriate outcome.

74. In the Offender’s favour is the finding I have made as to real contrition and remorse, [REDACTED], together with my findings of rehabilitation and low prospect of reoffending, and his difficult upbringing.

75. On the other hand, these are very serious offences which carry significant penalties and there is an obvious and clear need for general deterrence. The community needs to understand that dealing in illegal tobacco is a high-risk criminal activity and that, whilst there may be short-term attractive rewards apparently available, the consequences of being caught, prosecuted, and sentenced will be severe. The amount of unpaid duty involved in Sequence 1 is nearly $1 million and the amount for Sequence 7 is more than $10 million. The Offender has a criminal record, some of the offences were committed whilst he was under supervision. The offending cannot be said to be a one-off. Whilst accepting that the Offender is not a particularly attractive candidate to be used as an example for general deterrence, and I have taken this into account, I still consider general deterrence to be a weighty factor.

76. The indicative sentences which I consider appropriate, after a 25% reduction for the early guilty pleas, are:

1. Sequence 1 – One year imprisonment.

2. Sequence 7 – Three years’ imprisonment.

3. Sequence 8, taking into account the Sequence 5 matter – One year imprisonment.

77. Taking into account the principles of totality, even though there is a significant temporal gap between the conduct making up sequence 1 and the subsequent conduct making up sequences 7, 8, and 5, I consider an appropriate aggregate term in custody to be 3 years.

78. That term will be backdated to take account of the 60 days already served.

79. I have decided that the Offender should be released on a Recognizance, pursuant to s 20(1)(b)(i), after the Offender serves a period of 10 months from now in custody, so that the total time he will have spent in custody is approximately 1 year.

Orders

80. In respect of Sequences 1,7, and 8, taking into account the Sequence 5 matter and after deducting 25% for the pleas of guilty, the Offender is sentenced to an aggregate term of imprisonment of three (3) years to commence on 28 January 2025 and expire 27 January 2028.

81. The Offender is to be released on 27 January 2026, upon him entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) himself in the sum of $100, without security, for a period of two (2) years. That recognizance is to be conditioned that the Offender will:

1. Be of good behaviour;

2. Be subject to the supervision of a probation officer appointed in accordance with the order; and

3. Obey all reasonable directions of the probation officer.

82. It is the Court’s intention that the Offender be released on the recognizance release order on 27 January 2026.

[REDACTED]

83. [REDACTED]

**********

Decision last updated: 28 March 2025