The Queen v Mohmoud

[2020] VCC 2039

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-01484

THE QUEEN

v

AIMAN MOHMOUD

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2020
DATE OF SENTENCE:	16 December 2020
CASE MAY BE CITED AS:	The Queen v Mohmoud
MEDIUM NEUTRAL CITATION:	[2020] VCC 2039

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Importation of tobacco with the intention of defrauding the revenue; 3285 kilograms of tobacco concealed in a shipping container containing automotive parts; $3.31 million in duties and taxes avoided; Early plea of guilty; Remorse; Delay; Excellent prospects for rehabilitation; General and specific deterrence.

Legislation Cited:           Customs Act 1901 (Cth); Sentencing Act 1991 (Vic).

Cases Cited:Barakat v DPP (Cth) [2020] VSCA 185; R v Medalian [2019] SASCFC 40; R v Saleh [2015] NSWCCA 299; R v Zhang [2017] SASCFC 5; Hussein v The Queen [2016] VSCA 212.

Sentence:2 years and 6 months’ imprisonment, to be released subject to a Recognizance Release Order after service of 12 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms R. Champion	Commonwealth Director of Public Prosecutions
For the Offender	Mr P. Dunn QC	Doogue + George Defence Lawyers

HIS HONOUR:

1Aiman Mohmoud (aka Mahmoud), you have pleaded guilty to one charge that on 19 August 2018 you imported tobacco products with the intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901.

2At the time of the importation, tobacco attracted duty at the rate of $916.72 per kilogram. You were responsible for importing 3,285 kilogram of tobacco which, if accurately declared, would have accrued $3,312,576.72 in duties and taxes payable to the Commonwealth.

The importation  

3On 19 August 2018, the commercial fishing vessel, the Megalopolis, arrived in the Port of Melbourne from China carrying a shipping container identified as MRKU0586615. The Sea Cargo Report recorded the consignee as ‘Protector Store Pty Ltd, Aiman Mahmoud’ and its address as ‘Factory 2 1/3 Maygar Boulevard Broadmeadows Vic 3043 Melbourne’ The goods imported were described on the report as car parts such as bonnet protectors, weather shields, LED lamps and the like.

4Six days later, the container was examined by Australian Border Force (‘ABF’) officers at the Melbourne Container Examination Facility. ABF officers found numerous packages wrapped in a green woven plastic located behind boxes labelled as containing automotive parts. One of the packages was opened, revealing two plastic bags containing tobacco wrapped in layers of plastic and cardboard.

5X-ray examination of the container indicated there were a total of 136 packages on 17 separate pallets containing tobacco. The total approximate weight of the packages was 3,285 kilograms.

Investigation

6Enquiries made of the consignee, Protector Store Pty Ltd (‘Protector Store’), revealed that you and one other person were listed as directors. ABF records showed that Protector Store was a regular importer of automotive goods and since at least July 2017 had received deliveries at Factory 2, 1/3 Maygar Boulevard, Broadmeadows, or Unit 2/190 Camp Road, Campbellfield. It appeared both addresses related to the same premises.

7On 3 September 2018, the ABF returned the container to the wharf with a cover load of auto parts and no tobacco. Later that same day, a freight forwarder (ASP Global Pty Ltd) advised Norman Carriers, a freight logistics company, that the container was available for collection. It was then collected and taken to the Norman Carriers yard where it was stored overnight, before being loaded onto a truck for delivery the next day.

8ABF officers spoke to a staff member at ASP Global and determined that the delivery address for the container had changed from Factory 2, 1/3 Maygar Boulevard, Broadmeadows to 63A Lara Way, Campbellfield. Further enquiries revealed that Protector Store leased the commercial premises at 63A Lara Way, and that you were named as an applicant on the lease.

9At around 11:36am on 4 September 2018, ABF officers observed the container being delivered to those premises. A person matching your description was seen signing the electronic device provided by the driver. Shortly afterwards, ABF officers attended and observed you and two other men present. You informed the officers that you were the lease holder of the property.

10The officers interrogated your mobile phone in your presence. Emails from several Gmail accounts referencing the delivery of the container were identified and as a result your phone was seized.  

11The ABF also obtained the paperwork that was signed when the container was delivered by Norman Carriers. The consignment note was signed as received by ‘Adam Wilson’.

Interview

12At approximately 1:09pm on that same day, you were interviewed by ABF officers. You chose to waive your right to silence and gave a responsive interview where you made extensive admissions including the following:

·You were the director of Protector Store Pty Ltd;

·The shipping container at the premises had tobacco in it;

·You had made a big mistake;

·This was the first time you had imported tobacco;

·You obtained the tobacco through an agent in China in about April 2018;

·You paid for the tobacco through money transfer through the company OFX and had paid approximately $55,000;

·You transferred money on a couple of occasions as they could not get all the goods at one time;

·The delay in obtaining the goods was because they could only obtain small quantities each week;

·You knew there was 3000 kilograms in total;

·You had not thought about what you were going to do with the tobacco or how you were going to sell it;

·No one else told you to import the tobacco;

·You thought you would make $40,000 to $50,000 profit on top of the $55,000 you had paid;

·You had no idea about the tax that you needed to pay on tobacco;

·You did not declare the tobacco because you brought it in without Customs knowing and if you had declared it, you would pay a lot of tax;

·You thought if you got the tobacco you could double your money, but if you declared it you would not make any profit;

·You didn’t declare it so you wouldn’t have to pay for Customs;

·You thought it was illegal to import tobacco; and

·When the container was delivered, you signed for it under the name Adam and you did this because you thought it would be better if you changed your name because there was tobacco in the container.

Procedural history

13Turning to the procedural history of this matter. As I have indicated, you were arrested and interviewed on 4 September 2018. On 17 April 2019 you were served with the charge and summons. On 22 July 2019 you indicated through your legal representatives that you intended to plead guilty and formerly entered that plea at a committal mention on 26 July 2019. Your plea hearing proceeded on 30 July 2020.

14The point to be taken from that chronology, according to your counsel, is that you entered your plea of guilty at what practically speaking was the earliest opportunity to do so. The Crown took no issue with that contention and you will be sentenced on that basis. It follows that you will receive a substantial reduction in the sentence that would otherwise be imposed.

Personal history

13Turning to your personal history, you were born in Tripoli, Lebanon on 10 February 1982 and you are now 38 years of age. You were 36 when you committed this offence.

14You come from a large, close family. In Lebanon, your father was a local policeman whilst your mother worked at home raising the children. You have three siblings together with five half-siblings from your father’s first marriage.

15You describe your upbringing as positive. You have continued to maintain close relationships with your siblings and keep in regular contact with them. You have returned to visit your family in Lebanon regularly and three of your siblings live here in Melbourne.

16You completed your primary and secondary schooling in Lebanon where you performed well academically achieving good results. After leaving school you initially worked with your father who by that stage was operating a clothing business. You then undertook two years of tertiary study in business management and accounting before travelling to Melbourne on a student visa in 2007.

17You married in 2006 and have four children who are now between the ages of three and 10. You are said to be devoted to your family and your wife remains very supportive of you. You own and live with your family in a mortgaged home in Glenroy.

18Your decision to come to Australia was motivated by the lack of economic opportunities in Lebanon as you perceived it in the wake of the civil war in that country. Your first language is Arabic and you also speak French. When you came here you completed an English course and then enrolled in a certificate of business administration at TAFE. Ultimately, you completed a diploma and certificate in mechanical engineering at Melbourne Institute of Technology. During the time that you were engaged in this study, you purchased and operated a gift shop with your wife in Broadmeadows, although that was not particularly successful.

19In 2012, you took over a mechanical workshop in Campbellfield that had been previously operated by one of your older brothers. Later that year, there was a break in and all of the workshop’s tools were stolen. You were not insured and you were forced to give up the lease on the premises.

20In 2014, you established a four wheel drive automotive accessories business. The business was primarily concerned with importing and selling a range of four wheel drive accessories and products and for the most part was successful. By 2017, you had leased a large factory in Broadmeadows and employed several people. However in that year the viability of the business was threatened by legal proceedings instituted by Toyota for intellectual property violations. That dispute was finally settled in July 2018 when you agreed to pay Toyota $250,000 over a five month period.

21It was put that your decision to engage in this offending was made in the context of the stress and financial strain created by that dispute. The business was under intense pressure and you found it increasingly difficult to pay your staff and provide a stable income for your family. In addition, in May 2018, your wife was hospitalised after suffering a miscarriage which considerably added to the strain you were under.

22As counsel explained, in your record of interview you confessed to having made a big mistake and did not hesitate to take full responsibility for the importation. You hoped to double your investment of $50,000 or so to alleviate the financial pressures which had been mounting for some time. There was no suggestion, it was contended, that you had otherwise been involved in the tobacco industry.

23Three current employees of your business provided character references in support of your plea in mitigation. Each of those employees speak highly of you and are grateful for the opportunities you have provided them in their employment. They confirm the difficulties the business suffered as a result of the Toyota litigation and the negative effect it appeared to have on you. Despite those difficulties, you met your commitments to them. You have clearly earned their loyalty.

24As I understand it, the business remains viable but is likely to suffer in your absence.

25Since your arrest in relation to this matter, your wife’s condition appears to have deteriorated somewhat. She is awaiting surgery for a thyroid condition. She suffered a further miscarriage in November 2019 and according to her doctor, Dr Al-Tawil, she has experienced anxiety, depression and isolation for some years because all of her family are overseas. She is therefore very much dependant on you.

26Your wife wrote a personal reference confirming her support for you and the reliance that she and her children place on you. I have taken that reference into account.

27You have previously been before the Magistrates’ Court in March 2013 for a one charge of obtaining property by deception and two charges of making a false document and were fined $1500 without conviction. For reasons I will explain shortly that matter is of some, albeit limited, relevance.

28You were assessed for the purposes of your plea by Dr Mathew Barth, psychologist. He formed the view that you did not suffer from any particular personality or anti-social pathology and that your offending more likely arose from the circumstances that confronted you rather than any ‘entrenched characterological problems’.

29Dr Barth assessed you as suffering from noteworthy depressive symptoms in the wake of an intense emotional response to being charged. These symptoms were sufficient justify a diagnosis of ‘Adjustment Disorder – with Mixed Anxiety and Depressed Mood’. He was optimistic as to the prospect that you would not reoffend and concluded his report with these remarks:

Mr Mohmoud’s depressive and anxiety-related symptoms continue to impact his emotional wellbeing in the lead-up to his plea hearing. In such a context there is some risk that his mood could deteriorate and it would be prudent for him to be monitored by a mental-health professional in the period immediately after sentencing.

Mr Mohmoud’s prognosis will depend in large part upon the disposition he receives and his capacity to maintain a positive attitude as he faces the challenges ahead. Provided that Mr Mohmoud can receive treatment for his emotional problems, improve his coping skills, be encouraged to maintain positive connections to the wider community and be provided with a context of support upon his ultimate release, than there are some genuine grounds for optimism for his ultimate rehabilitative prospects in the community.

Defence submissions

30Mr Dunn QC emphasised that the confession you made to investigators at the outset was supported by a plea of guilty made at the earliest possible opportunity. There was significant utility in the plea and it clearly facilitated the course of justice. The overall approach taken, it was submitted, was very much consistent with remorse. 

31He also relied on the two or so year delay that has attended this matter, the sentencing considerations arising from the pandemic, the extenuating circumstances behind your decision to become involved in this offending, what he said were your good prospects for rehabilitation and your concern for the difficulties likely to be encountered by your family and the business in your absence.

Prosecution submissions

32Ms Champion emphasised the important policy objectives behind the regulation of tobacco and the basic community utility in protecting the revenue. By reference to authority to which I will refer shortly, it was submitted that general deterrence must ordinarily be given significant weight.

33It was submitted this was a serious example of this type of offending. It involved the evasion of a very substantial sum, $3.3 million in circumstances where you had ‘invested’ approximately $55,000 in the importation using your own legitimate business as cover for financial gain. You played an active role in ensuring the success of the operation and your moral culpability should be assessed as being high.

34Some weight should also be accorded to specific deterrence because you have a previous finding of guilt relating to dishonesty and because you took a risk in attempting to profit from this offending calculating that you could avoid detection.

35Ms Champion submitted that a term of imprisonment to be served immediately was the only sentence reasonably open, but acknowledged that such a term of imprisonment might be subject to a Recognizance Release Order (‘RRO’).

Consideration

36The general sentencing principles for this type of offending are well settled. They were recently affirmed by Niall JA, with whom Priest and T Forrest JJA agreed, in Barakat v DPP (Cth)[1]. In reviewing the authorities, his Honour stated at [54] and [55]:

Because of the financial rewards that can be associated with offending of this kind (where the goods are subject to relatively high taxes and duty), the difficulty of detection and the erroneous view that offending of this kind is lower level order criminality or ‘victimless’, it is necessary to place emphasis on general deterrence.  That remains so, even where the offender is otherwise of good character and unlikely to offend again.  Relatedly, offending of this kind often involves, as it did in this case, premeditation and planning.  There is the opportunity to reflect on the risk and reward equation.  It is necessary that sentencing courts visit the offending with suitably stern sentences so as to deter those who might otherwise be attracted to the high returns fortified by the difficulty in detection.

A review of the authorities reveals the importance of general deterrence and that, as a result, custodial sentences generally are called for.

[1] [2020] VSCA 185.

37Ms Champion also referred me to a number of other comparative cases[2] to which I have had regard.

[2]R v Medalian [2019] SASCFC 40; R v Saleh [2015] NSWCCA 299; R v Zhang [2017] SASCFC 5;

Hussein v The Queen [2016] VSCA 212.

38I accept that this is a serious example of this offence. The amount evaded is very substantial and the role you played in importing the tobacco under the guise of your legitimate business does elevate your moral culpability. You made a calculated business decision to profit from illegal activity and there is clearly a need both to provide a real disincentive to others who might be tempted to offend in the same way and to adequately punish and denounce what you did.

39Whilst specific deterrence is by no means irrelevant, I am less persuaded as to the importance of that sentencing purpose in your case. Although you have previously been before the Magistrates’ Court for a dishonesty matter, I have formed the view that the process of being apprehended, interviewed, charged and having to wait more than two years to face sentence for this charge has been punitive, and that it has had a salutary effect on you.

40The matters subjective to you upon which Mr Dunn QC relied were not, as I understood it, seriously challenged. They seem to me to mitigate your position considerably. You have studied and worked hard to establish yourself and your family in this country which is very much to your credit. As your counsel submitted, people can sometimes make the wrong decisions when under pressure and you certainly seem to have found yourself under significant pressure in 2017 and into 2018.

41Of course, many people under such pressure to provide for their family and keep their businesses afloat do not commit crimes and your circumstances provide no excuse. Nevertheless, I am prepared to accept that you decided to commit this offence whilst under a great deal of strain and, as you told investigators, it was ‘a big mistake’ for which you are very remorseful. Dr Barth identified what he described as your ‘intense reaction’ to being apprehended and that seems to me to support the finding of genuine remorse.

42In addition, you co-operated with authorities at the outset and pleaded guilty at a very early stage in the proceedings. In spite of that preparedness to accept responsibility for your offending you have still had to wait more than two years to learn your fate. As I have indicated, I accept that delay has been punitive. Those matters, taken together, merit a substantial reduction in the sentence that would otherwise be imposed.

43I also accept that the restrictions in prison imposed as a result of the pandemic would be likely to affect you acutely. To be denied personal visits from your wife and four young children in your particular circumstances appears to be a very real hardship indeed, and in my view should attract significant weight.

44You have not reoffended since this offence, save apparently for a speeding matter that is to be contested. I think there is reason for optimism, as Dr Barth suggests, regarding your prospects for rehabilitation, provided you maintain your connection with your family and your community. Assuming you do so, I would assess your prospects as being excellent.

45Balancing the competing sentencing purposes as best I can, I have concluded that in spite of the substantial matters in mitigation I have found in your favour, it remains the case that offending of this kind will ordinarily result in custodial sentences and this case can be no exception. The large amount of duties and taxes evaded taken with the principal role you played in the importation, compels no other conclusion. It follows that an immediate term of imprisonment must be imposed albeit that that term should, as the Crown conceded, be subject to a Recognizance Release Order.  

Sentence

46Taking all relevant matters into account, you will be sentenced as follows:

47On Charge 1, you be convicted and sentenced to a term of imprisonment of 2 years and 6 months. I will direct that sentence is to commence today, 16 December 2020.

48I will further direct that you be released after the service of 12 months’ imprisonment, upon you entering into a recognizance in the sum of $3000 and that you comply with the condition to be of good behaviour for a period of 18 months.

49I will make a declaration pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have sentenced you to a term of imprisonment of 4 years and would have imposed a non-parole period of 2 years and 6 months.