Samardali v The Queen - [2018] WASCA 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SAMARDALI -v- THE QUEEN [2018] WASCA 220
CORAM:   MAZZA JA
MITCHELL JA
PRITCHARD JA

HEARD:   21 MAY 2018
DELIVERED          :   31 MAY 2018
PUBLISHED           :   12 DECEMBER 2018
FILE NO/S:   CACR 252 of 2017
BETWEEN:   MANTHER SAMARDALI
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number            :   IND 1038 of 2017

Catchwords:

Criminal law - Appeal against sentence - Importing goods with the intention of defrauding the revenue - Possessing goods knowing that the goods were imported with intent to defraud the revenue - Molasses tobacco - Attempting to hinder a public official in the performance of the official's functions as a public official - Falsifying emails - Alleged express error - Whether sentencing judge erred in stating the maximum fine available for count 1 and count 2 - Whether alleged error is material - Alleged implied errors - Whether sentences were manifestly excessive as to type and length - Whether total sentence infringed the first limb of totality principle - Whether non‑parole period infringed the first limb of the totality principle

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s16A(2), s 17A, s 20(1)(b)
Criminal Code Act 1995 (Cth), s 11.1(1), s 149.1(1)
Customs Act 1901 (Cth), s 233BABAD(1), s 233BABAD(2), s 233BABAD(5)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Mr P J Urquhart

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director Of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Fernandez v The State of Western Australia [2009] WASCA 227
Harding v The State of Western Australia [2015] WASCA 27
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hussein v The Queen [2016] VSCA 212
Markarian v The Queen [2005] HCA 25; [2005] 228 CLR 357
Pollock v The Queen [2012] WASCA 30
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113
Young v The Queen [2016] VSCA 149

REASONS OF THE COURT:

This appeal against sentence was heard on 21 May 2018.
On 31 May 2018, we made the following orders:
1.The appeal is allowed.
2.The sentences imposed by Stevenson DCJ on 24 November 2017 are set aside.
3.In lieu thereof this Court imposes the following new sentences:
a)Count 1 - 15 months' imprisonment to commence on 24 November 2017.
b)Count 2 - 3 months' imprisonment to commence on 24 November 2017.
c)Count 3 - 3 months' imprisonment to commence on the expiry of the sentence imposed on count 1.
4.For the avoidance of doubt, the total effective term of imprisonment is 18 months' imprisonment to commence on 24 November 2017.
5.The appellant shall be released under s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 9 months of the term of imprisonment imposed by this Court calculated from 24 November 2017 upon the appellant entering into a recognisance of $5,000 to be of good behaviour for 9 months.
The court said that it would publish its reasons at a later date. What follows are our reasons for these orders.

The charges

The appellant was charged on indictment in the District Court with three offences:[1]
Count 1
On or about 10 October 2016, at Perth, the appellant imported goods, being tobacco products, with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) (Customs Act).
Count 2
On or about 21 October 2016, at Perth, the appellant had goods in his possession, being tobacco products, knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act.
Count 3
Between 20 October 2016 and 21 October 2016, at Perth, the appellant attempted to commit an offence against s 149.1(1) of the Criminal Code (Cth), namely, knowing that Andrew Watson was a public official, attempted to hinder the said official in the performance of the official's functions as a public official, the said functions being functions as a Commonwealth public official, contrary to s 11.1(1) of the Criminal Code (Cth).
[1] WAB 58.
On 24 November 2017, the appellant was convicted of all three charges on his pleas of guilty.[2] He was sentenced to 2 years 8 months' imprisonment on count 1, 14 months' imprisonment and a fine of $10,000 on count 2, and 6 months' imprisonment on count 3. The sentences of imprisonment on counts 1 and 3 were ordered to be served cumulatively and the sentence of imprisonment on count 2 was ordered to be served concurrently with the sentence imposed on count 1. His Honour imposed a non‑parole period of 18 months.[3]
[2] ts 6.
[3] ts 53 ‑ 54.
Thus, the total effective sentence was a fine of $10,000 and a term of immediate imprisonment of 3 years and 2 months, with a non‑parole period of 18 months. His Honour ordered that the custodial sentences commence on 24 November 2017.[4]
[4] ts 53 ‑ 54.
The appellant appealed to this court on four grounds. Ground 1 alleged that the individual sentences were manifestly excessive as to type and length. Grounds 2 and 3 alleged, in effect, that the total effective sentence and the non‑parole period infringed the first limb of the totality principle. Ground 4 alleged that the learned sentencing judge erred in stating the maximum fine available for counts 1 and 2.[5]
[5] WAB 6.

The facts

The offences concern molasses tobacco. Molasses tobacco is commonly consumed via a water pipe or shisha. The appellant is not licensed to sell tobacco products.[6] It was accepted by the sentencing judge that molasses tobacco was consumed by the appellant, his family and friends as part of their culture.[7] At the sentencing hearing, defence counsel tendered a number of photographs showing the appellant and others, on social occasions, apparently smoking molasses tobacco in this manner.[8] Defence counsel explained that 50 to 100 g of tobacco might be placed in a shisha at any one time.[9]
[6] ts 51.
[7] ts 46.
[8] WAB 129 ‑ 132.
[9] ts 26.
With respect to count 1, the appellant was responsible for importing from China, via a sea container, 194 kg of molasses tobacco with intent to evade the payment of customs duty and GST. The amount of duty and GST evaded was $162,960.88.[10] The appellant paid $25.00 per kg for the molasses tobacco.[11] The molasses tobacco was in 1 kg bags bearing Chinese writing and pictures of mushrooms. The bags were secreted in a number of boxes containing kitchen cabinets. There were 194 such bags in the consignment.[12] The sea container landed in Fremantle on 10 October 2016. It was unpacked and inspected by officers of the Australian Border Force (ABF). The 194 kg of molasses tobacco was seized before the appellant could take delivery of it.[13]
[10] At the relevant time, the duty payable on water pipe tobacco (the molasses content is irrelevant) was $763.20 per kg, not including GST; appeal ts 69. The GST component was $76.32; see letter CDPP to court dated 25 May 2018.
[11] ts 17.
[12] ts 10 ‑ 11.
[13] ts 10, 51.
In respect of count 2, on 21 October 2016, ABF officers executed a search warrant at the appellant's home in the suburb of Stirling. During the search, ABF officers found nine 1 kg packets of molasses tobacco in a wardrobe in the appellant's bedroom. A further kilogram of molasses tobacco was found in a freezer in the garage.[14] Defence counsel explained that the appellant had purchased the molasses tobacco for $185 per kilogram from two stores in Canberra and New South Wales.[15]
[14] ts 11.
[15] ts 16 ‑ 17.
The appellant appreciated that, by reason of the price he paid, the molasses tobacco had been imported into Australia without paying the necessary duties.[16]
[16] ts 18.
With respect to count 3, during the search on 21 October 2016, the appellant told an ABF officer that the molasses tobacco the subject of count 1 had been accidentally put in the shipping container. He produced an email which appeared to support his story. ABF officers quickly realised, as a result of searching the appellant's computer, that the appellant's statement was false and that he had concocted the email.[17]
[17] ts 11 ‑ 12, 44.

The appellant's personal circumstances

The appellant is a person of prior good character. He had no previous criminal record. A number of character references which were tendered to the sentencing judge spoke highly of the appellant. Since his arrival in Australia in 1983, he has been gainfully employed and has lived in a pro‑social way. He is married and supports his wife and five children. His Honour accepted that the appellant fully accepted responsibility and was genuinely remorseful for his offending. He now realises and has insight into the seriousness of what he did. His Honour found that, upon the appellant's release from prison, he would live a pro‑social life and that his prospects of rehabilitation were high. His Honour accepted that at the time of the commission of the offences, the appellant was in financial difficulty and had mental health issues. He accepted that these were motivating factors for their commission.[18]
[18] ts 48 ‑ 49.

The sentencing remarks

It is unnecessary to refer at length to the sentencing remarks because, apart from the error alleged in ground 4, no issue is taken with them.
His Honour had regard to the mandatory sentencing considerations in s 16A(2) of the Crimes Act 1914 (Cth) (Crimes Act) insofar as they were known and relevant.
As to the seriousness of the appellant's overall offending, while the sentencing judge accepted that it was, to a degree, 'amateurish',[19] he found that the appellant was the principal organiser and beneficiary of the offending. Had the appellant successfully completed the importation the subject of count 1, he would have obtained 194 kg of molasses tobacco, an unknown proportion of which would have been sold to friends, family and other users.[20] As his Honour put it:[21]
[The appellant is] to be sentenced on the basis that some, although it is an indeterminate amount, would have been sold or supplied by [him] for commercial gain.
[19] ts 47.
[20] ts 45 ‑ 46.
[21] ts 46.
As to count 2, his Honour found that the appellant appreciated that what he did was illegal in that he obtained a product, appreciating that duty had not been paid.[22]
[22] ts 46.
As to count 3, his Honour said that the appellant had, in effect, attempted to pervert the course of justice.[23]
[23] ts 47.
His Honour referred to a number of cases which emphasised the need for a court, when sentencing for serious revenue offences, to give particular weight to general deterrence.[24] His Honour accepted that the need for personal deterrence in the present case was 'lower than otherwise might be required'.[25]
[24] ts 51 ‑ 53.
[25] ts 53.
Relevantly to ground 4, his Honour stated that the maximum fine for count 1 was $814,684 and for count 2 was $41,976.[26] It is accepted that the maximum fine for count 1 was $740,304 and the maximum fine for count 2 was $38,160.[27]
[26] ts 44 - 45.
[27] WAB 21.

General appellate principles

This court can only intervene if a sentencing judge makes an express or implied material error of fact or law. An allegation that a sentence is manifestly excessive or that the total effective sentence infringed the first limb of the totality principle depends upon establishing an implied error. The appellant must demonstrate that the sentence is unreasonable or plainly unjust. Because the discretion conferred on a sentencing judge is of fundamental importance, this court may not substitute its opinion for that of the sentencing judge merely because it would have exercised the discretion differently.
In determining whether a sentence is manifestly excessive, it is necessary to examine the sentence from the perspective of the maximum penalty for the offence, the standard of sentencing customarily observed with respect to that offence, the place that the criminal conduct occupied in the scale of seriousness of offences of that kind and the personal circumstances of the offender.
The first limb of the totality principle requires that the total sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally.
In considering whether an implied error has been made, regard is had to comparable cases. In R v Pham,[28] the High Court restated how comparable cases are to be treated in the sentencing of Federal offenders. Part 1B of the Crimes Act does not specifically provide that, in sentencing Federal offenders, judges are to take into account current sentencing practices. This obligation arises as a matter of common law.[29] An Australia‑wide approach is taken to the sentencing of Federal offenders to ensure consistency across the States and Territories.[30] The reasons for this are twofold. First, they can and should provide guidance as to the identification and application of relevant sentencing principles. Second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or an impugned sentence. This does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of an appropriate exercise of the sentencing discretion.[31]
[28] R v Pham [2015] HCA 39; (2015) 256 CLR 550.
[29] Pham [23].
[30] Pham [19] ‑ [20].
[31] Pham [26] ‑ [27].
The High Court re‑emphasised the following:[32]
(1)Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2)The consistency that is sought is consistency in the application of the relevant legal principles.
(3)Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4)Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5)For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6)When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7)Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle. (footnotes omitted)
[32] Pham [28].
It is convenient to deal first with ground 4 and then to deal with grounds 1, 2 and 3 together.

Ground 4 - error in stating maximum penalty

At the relevant time, the maximum sentence for count 1 was 10 years' imprisonment and/or a fine. The maximum amount of the fine is calculated either by way of penalty units or the amount of duty evaded, depending upon whether the amount of duty evaded is able to be quantified: s 233BABAD(5) of the Customs Act. The amount of duty evaded on counts 1 and 2 was quantifiable. The Crown informed the sentencing judge that, based on the duty evaded, the maximum fine for count 1 was $814,584.40 and for count 2 was $41,976. No issue was taken with these figures and his Honour accepted that they were correct.
However, the Crown erred in its calculation of the maximum fine based on the duty that was evaded. It impermissibly included GST in the calculation of duty evaded. The correct maximum fine for count 1 was $740,304 and for count 2 was $38,160. In this court, the respondent accepted that the error alleged in ground 4 had been made out to the extent that, his Honour overstated the maximum fine on count 1 by $78,096.40 and on count 2 by $3,816.
The real issue to be decided is whether the error was material.
The starting point is s 31 of the Criminal Appeals Act 2004 (WA), which, relevantly, provides:
31. Appeal against sentence etc., decision on
(1)This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against -
(a)the sentence imposed or any order made as a result of -
(i)a conviction on indictment; or
(ii)a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;
(b)a refusal by a superior court to make an order that might be made as a result of such a conviction.
[(2)deleted]
(3)Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.
(4)The Court of Appeal may allow the appeal if, in its opinion -
(a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or
(b)in the case of an appeal referred to in subsection (1)(b), an order should have been made.
(5)If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -
(a)may instead impose a new sentence that is either more or less severe; or
(b)may send the charge back to the court that imposed the sentence to be dealt with further.
(6)If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -
(a)may make any order that should have been made; or
(b)may send the charge back to the court that refused to make the order to be dealt with further. (emphasis added)
As subsection 31(4)(a) expressly provides, this court may only allow an appeal against sentence if it forms the opinion that a different sentence should have been imposed. As Mazza JA observed in Harding v The State of Western Australia,[33] not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene.[34] An express error that did not affect, or was incapable of affecting, the sentence imposed is not a material error and does not enliven this court's jurisdiction.[35]
[33] Harding v The State of Western Australia [2015] WASCA 27.
[34] Harding [73].
[35] Harding [73]; Fernandez v The State of Western Australia [2009] WASCA 227 [9] ‑ [10].
The maximum penalty for an offence is an important sentencing consideration. As Gleeson CJ, Gummow, Hayne and Callinan JJ pointed out in their joint judgment in Markarian v The Queen,[36] the maximum penalty is no mere formality. It is an important sentencing yardstick that almost always requires careful attention.[37]
[36] Markarian v The Queen [2005] HCA 25; [2005] 228 CLR 357.
[37] Markarian [30] - [31].
However, while it may be accepted that an error as to the maximum penalty will, generally speaking, be a material error, there will be cases where the error is not material. This appeal is one such case.
His Honour did not err in his statement of the maximum term of imprisonment for the offences in counts 1 and 2. His Honour's error was only as to the maximum fine. As to the extent of the error, it was modest: his Honour overstated the maximum available fine on each count by 10%. In respect of count 1, the appellant received a term of immediate imprisonment and no fine was imposed. It is most unlikely that his Honour had in mind the imposition of a fine with respect to count 1, given the seriousness of the offending in count 1. We are satisfied that there is no risk that his Honour would have imposed any different penalty on count 1 had his Honour been aware of the correct maximum fine for the offence.

With respect to the penalty on count 2, his Honour imposed a $10,000 fine in addition to sentencing the appellant to 14 months' immediate imprisonment. As the penalty that was imposed included a fine, an error as to the maximum available fine is potentially more significant. However, given the modest overstatement of the maximum available fine by his Honour, it is highly unlikely that such a misstatement had any effect upon the sentence imposed on count 2.
In these circumstances, we are unpersuaded that his Honour's error was material to the exercise of the sentencing discretion.
Leave to appeal on ground 4 is refused.

Grounds 1, 2 and 3 - alleged implied errors

Submissions

It was submitted on behalf of the appellant that his Honour erred as to the type and length of sentence imposed and as to the total effective sentence. Further, the appellant submitted that if an immediate custodial sentence was the only appropriate sentence, his Honour erred as to the length of the non‑parole period.[38] Counsel submitted that the individual offences, and the overall offending, was 'at the lower end of the range of seriousness'.[39] Further, the sentences were inconsistent with the outcomes in other cases.[40]
[38] Appeal ts 58.
[39] Appeal ts 58.
[40] Appeal ts 58 - 59.
In addition, the appellant's counsel pointed to the appellant's early plea of guilty; his favourable personal circumstances; his excellent prospects of rehabilitation; his acceptance of responsibility and genuine remorse; and that the need for personal deterrence was lower than in other cases.[41]
[41] Appeal ts 63.
It was submitted on behalf of the respondent that the individual sentences, the total effective sentence and the non‑parole period were appropriate. In support of this submission, counsel for the respondent pointed to the significant amount of duty which was avoided; the need for general deterrence; that the appellant was 'the sole beneficiary' of the operation; the efforts the appellant made to avoid detection; that the offending is of a type which is extremely difficult to detect; and that there was a 'certain level of sophistication to [the offending]'.[42]

Disposition

[42] ts 73 - 74, 76 - 77.

In our opinion, the individual sentences on the three counts were manifestly excessive as to length, but not type. We are also of the opinion that the total effective sentence (including the non‑parole period) infringed the first limb of the totality principle.
The maximum sentences of imprisonment available on counts 1 and 2 was 10 years' imprisonment and on count 3 was 2 years' imprisonment.
As to count 1, consistently with the sentencing judge's unchallenged findings of fact, there was a degree of premeditation, planning, pre‑concert and organisation in the importation of the molasses tobacco. Although the quantity imported was, as will soon become apparent, nowhere near as great as in other cases that have come before intermediate courts of appeal, it was nevertheless substantial. The appellant went to some lengths to avoid the detection of the molasses tobacco by the ABF. While it is not possible to say how much of the product would have been sold or supplied for commercial gain, or how much would have been used by the appellant, his family and associates, the appellant committed the offence, in part, to make money. The amount of duty and GST the appellant sought to evade, being $162,960.88, was considerable.
Count 2 is plainly less serious than count 1. Count 2 involved a much smaller quantity of molasses tobacco, and its commission did not involve the premeditation and organisation evident in the commission of count 1. Further, the amount of duty evaded was much less than in count 1.
As to count 3, the appellant lied to the investigating officers and concocted emails to support the lie. However, once the investigating officers examined the appellant's computer, his deception became obvious. It was an amateurish attempt to deceive the ABF.
In relation to the sentences imposed on counts 1 and 2, the court's attention was directed to six cases, namely R v Zhang;[43] Hussein v The Queen;[44] Young v The Queen;[45] R v Saleh[46] and R v Zerafa.[47]
[43] R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113.
[44] Hussein v The Queen [2016] VSCA 212.
[45] Young v The Queen [2016] VSCA 149.
[46] R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212.
[47] R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265.
In Zhang, the offender and his partner were involved in a large‑scale operation over a six‑month period, in which large quantities of cigarettes were imported into Australia without paying the required duty. The scheme involved consignments of cigarettes and tobacco using the postal service. The method used was posting consignments to multiple post office boxes. Some, but not all, of the post office boxes were in false names.[48] The three most serious offences (counts 4, 5 and 6), involved 615 separate parcels, 695,560 cigarettes and 50.15 kg of tobacco, with the total revenue evaded being $463,365.67.[49] The offender was 24 years of age at sentencing; was a first offender; had good prospects of rehabilitation; and was contrite and had cooperated with the authorities. He was sentenced to a total effective sentence of 4 years 8 months' imprisonment with a non‑parole period of 2 years.[50] He appealed on various grounds, including that some of the sentences were manifestly excessive and that the total effective sentence infringed the totality principle.[51] All of the grounds relied upon failed, and the appeal was dismissed.[52]
[48] Zhang [9].
[49] Zhang [13] - [16].
[50] Zhang [5].
[51] Zhang [6].
[52] Zhang [1] ‑ [2], [121].
In Hussein, the offender pleaded guilty to attempting to possess tobacco products, knowing that the products were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act.[53] The offender was one of a number of people involved in the importation of a shipping container said to contain ceramic toilets with plastic seats. Customs officers examined the shipping container and found 340 bales of tobacco leaf, weighing 17,009 kg. The total duty sought to be evaded was $7,597,069.80, together with GST of $759,706.98, making a total of $8,356,776.78.[54] Although the offender was not the importer of the tobacco, he nevertheless played a significant role in liaising with the importer, unpacking the goods and renting trucks in which the tobacco was to be transported.[55] The offender was 36 years of age when he was sentenced. After committing the offence the subject of the appeal, he was convicted of other offences concerning the tobacco products.[56] The offender was sentenced to 2 years 6 months' imprisonment, to be released after serving 12 months upon entering a recognisance pursuant to s 20(1)(b) of the Crimes Act in the sum of $5,000.[57] Leave to appeal on the ground that the sentence was manifestly excessive was refused.[58]
[53] Hussein [1].
[54] Hussein [9].
[55] Hussein [23] ‑ [24].
[56] Hussein [16], [20].
[57] Hussein [2].
[58] Hussein [4].
In Young, the offender was found guilty after trial of one count of possessing tobacco products, knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act, and one count of attempting to possess tobacco products, knowing that they had been imported with intent to defraud the revenue (counts 2 and 3 respectively).[59] On count 2, the offender was sentenced to 12 months' imprisonment and on count 3, 18 months' imprisonment. The sentence on count 3 was, in effect, ordered to be served partly cumulatively with the sentence on count 2. The offender was sentenced to 24 months' imprisonment to be released on recognisance after serving 15 months.[60] Count 2 concerned the importation with intent to defraud the revenue of approximately 9 million cigarettes, and the amount of duty that had been evaded was in the order of $3 million. With respect to count 3, the offender attempted to import 22,969 kg of frozen tobacco in 823 boxes.[61] The offender was, at the time of sentencing, 67 years of age, with no prior convictions and was a person of prior good character.[62] The offender sought to appeal on the basis that the total effective sentence, in substance, infringed the totality principle.[63] Leave to appeal on this basis was refused.[64]
[59] Young [1].
[60] Young [2].
[61] Young [109].
[62] Young [111].
[63] Young [4].
[64] Young [134].
Saleh involved a Crown appeal against sentence. The offender pleaded guilty to aiding and abetting the importation of tobacco products with the intention of defrauding the Commonwealth of revenue, contrary to s 233BABAD(1) of the Customs Act.[65] Over a period of 12 days, the offender performed a number of tasks which aided the importation of 2,250 kg of loose tobacco which was concealed in a consignment of bamboo blinds. The amount of duty evaded was $996,997.50. The offender was to receive $3,000 for his work. It was accepted that he was not the principal behind the importation.[66] At the time he was sentenced, he was 35 years of age. He had a prior record of convictions. The sentencing judge made no finding as to the offender's prospects of reoffending.[67] At first instance, the offender was given a 20‑month suspended sentence upon a condition that he enter into a recognisance to be of good behaviour for that period. The Crown appeal, which included a ground that the sentence was manifestly inadequate, was upheld.[68] The case was the first time that s 233BABAD of the Customs Act had been considered by an appellate court.[69] The Crown appeal was allowed and the offender was sentenced to 3 years' imprisonment to be released on recognisance after serving 2 years.[70]
[65] Saleh [13] ‑ [14].
[66] Saleh [15] ‑ [17].
[67] Saleh [18], [20] ‑ [21].
[68] Saleh [15], [22].
[69] Saleh [36].
[70] Saleh [59].
In Zerafa, the offender was an accountant and a partner in a firm involved in a scheme to defraud the Australian Tax office.[71] He was convicted after a long trial of conspiracy to defraud the Commonwealth, contrary to s 86(1) and s 29D of the Crimes Act, and of conspiracy to dishonestly cause a risk of loss to the Commonwealth, contrary to s 135.4 of the Criminal Code (Cth).[72] The facts of the case did not involve the importation of tobacco. The case concerned a scheme where fraudulent claims were made by Australian companies for income tax deductions said to be business expenses.[73] The offender was involved in the scheme for more than seven years. The financial loss to the ATO was in excess of $5 million.[74] At first instance, the offender was sentenced on the offence contrary to s 86(1) and s 29D of the Crimes Act to 500 hours of community service work and, on the offence contrary to s 135.4 of the Crimes Act, to 3 years' imprisonment to be released on entering into a recognisance to be of good behaviour for 3 years. By the time the appeal was heard, the offender had completed the community service work and served 3 months of the suspended sentence.[75] The New South Wales Court of Criminal Appeal upheld the Crown's appeal, finding that the sentences imposed on the offender failed to reflect principles of general deterrence and the need to impose adequate punishment.[76] However, having regard to the fact that it was a crown appeal and that there had been substantial delay, the court did not interfere with the sentence of community service work, but it did set aside the sentence of imprisonment and impose a sentence of 3 years and 6 months' imprisonment with a non‑parole period of 2 years and 3 months.[77]
[71] Zerafa [36], [55].
[72] Zerafa [1].
[73] Zerafa [7].
[74] Zerafa [23], [82].
[75] Zerafa [67].
[76] Zerafa [85].
[77] Zerafa [101] ‑ [103].
We make these observations about the cases:
(1)Section 233BABAD was introduced in 2012. The rationale advanced by the Attorney General at the time was the need for penalties to provide a strong deterrent against illegal importation. In fact, the maximum penalty enacted of 10 years' imprisonment is a fivefold increase from an analogous provision in the Excise Act 1901 (Cth).[78]
(2)All of the cases cited emphasise the importance of general deterrence and the need to adequately punish offenders. This is consistent with the general approach taken in offences of frauds against the revenue. See, for example, Pollock v The Queen.[79]
(3)The cases referred to involve offending considerably more serious than the offending in the present case. Here, the quantity of molasses tobacco and the amount of duty that was evaded was much less than in the comparable cases. Yet the sentences that were imposed upon the appellant for counts 1 and 2 and the total effective sentence do not appear to reflect the less serious circumstances of the present case.
[78] R v Saleh [30] ‑ [32].
[79] Pollock v The Queen [2012] WASCA 30 [25].
The appellant's personal circumstances were favourable. Personal deterrence was not a matter of great weight and the appellant's prospects of rehabilitation were high. He pleaded guilty and he was genuinely remorseful. It appears unlikely that he will reoffend in the future.
As to count 3, general deterrence is, without doubt, an important matter. However, the commission of the offence was very short‑lived and, while the appellant concocted false emails, his deception was amateurish and was quickly and easily discovered.
Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the offence.
There were features of this offending which differentiate it from the comparable cases that were cited to this court, most notably, that the amount of molasses tobacco and the lost revenue was much less than in the other cases. Further, although there was an aspect of commerciality in the case, some of the molasses tobacco would have been used by the appellant, his family and friends in social situations consistently with his culture.
As to the appellant's challenge to the type of sentence imposed, namely imprisonment, we are satisfied that no sentence other than a term of imprisonment was appropriate, in all the circumstances. Acknowledging that this case was not as serious as the others to which counsel referred, it was serious nevertheless. The appellant imported and, in his home, had in his possession reasonably substantial amounts of molasses tobacco. The circumstances in which he committed counts 1 and 2 have already been described and do not need to be repeated. It is enough to say that they involved a substantial quantity of molasses tobacco and the loss to the revenue of a substantial amount of money. While not the most sophisticated offences of their type, they involved deliberate and persistent behaviour and were, at least to some extent, motivated by profit. Having regard to the primacy which must be given to general deterrence and the need for adequate punishment, immediate imprisonment was the only appropriate sentence to be imposed for counts 1 and 2. So too, count 3.
As to the appellant's challenge to the length of the sentences imposed, we are satisfied that the individual sentences and the total effective sentence were excessive as to their length. We are also satisfied that the non‑parole period imposed was excessive.
Leave to appeal should be granted on grounds 1, 2 and 3. Each of those grounds has been made out. Thus, the appeal must be allowed and the appellant resentenced.

Resentencing

This court has all the material necessary to resentence the appellant.
The appellant is a Federal offender who must be sentenced in accordance with the provisions of pt 1B of the Crimes Act. When sentencing a Federal offender, a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence: s 16A(1) of the Crimes Act. A court must consider the factors set out in s 16A(2) of the Crimes Act if those matters are relevant and known to the court, although the list of factors is not exhaustive. Other common law principles of sentencing, including totality, apply in order to determine a sentence of a severity appropriate in all of the circumstances of the case.[80]
[80] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 528 [23] ‑ [25].
Division 4 of pt 1B of the Crimes Act governs the fixing of non‑parole periods or the making of a recognisance release order.
The appellant will be resentenced in accordance with these principles. We have already set out the maximum penalties for counts 1, 2 and 3. The primary sentencing considerations for offences of this type are deterrence, both general and specific, and the need to provide adequate punishment for the offence.
We will not repeat what we have said about the circumstances of the offences or the appellant's antecedents. We consider that the appellant pleaded guilty to the offences at an early stage in the proceedings, is remorseful, has very good prospects of rehabilitation and is unlikely to reoffend.
Having considered all of these matters, the sentences which were imposed on 31 May 2018 (including the period before the appellant was released on recognisance) are the appropriate sentences to be imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA
12 DECEMBER 2018