Al Am Ali v R

1. [1]

   BEECH-JONES CJ AT CL: In joining the orders made on 19 November 2021 dismissing the appeal I was satisfied that no lesser sentence was warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3)). I reached that state of satisfaction regardless of whether the consideration of whether to make an Intensive Correction Order in resentencing was determined having regard to the sentencing objectives in s 16A of the Crimes Act 1914 (Cth) or s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (see R v Pullen [2018] NSWCCA 264 at [86] to [89]). I otherwise agree with the reasons of Davies J.

2. [2]

   DAVIES J: On 19 November 2021 at the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal but dismissing the appeal. Reasons were to be provided later. These are my reasons for joining in the orders of the Court.

3. [3]

   The applicant pleaded guilty to possessing 1974 kilograms of tobacco knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for this offence is ten years’ imprisonment and/or a fine (calculated in accordance with s 233BABAD(5)), which in this case was in the order of $9.8 million.

4. [4]

   The applicant, with three others charged with the same offence and, in some cases, with additional offences, came for sentence before Judge North in the District Court on 25 February 2021. On 9 April 2021 his Honour sentenced the four offenders. The sentence imposed on the applicant was a sentence of 24 months’ imprisonment commencing 11 February 2021 and expiring 10 February 2023. His Honour directed that the applicant be released at the expiration of 12 months, on 10 February 2022, upon the applicant entering a recognizance in the sum of $1,000 without surety to be of good behaviour for the balance of the term.

5. [5]

   The applicant now seeks leave to appeal against the sentence on one ground only as follows:

6. [6]

   In those circumstances, it is not necessary to consider the sentences imposed on the co-offenders.

The offending

1. [7]

   The following is an executive summary of the detailed facts dealing with the offending. It is taken from the sentencing judge’s Remarks on Sentence (ROS).

The sentence proceedings

1. [8]

   The Crown provided detailed written submissions which included the provision of a substantial table of comparative cases. Written submissions were provided by counsel for each of the other offenders but not on behalf of the applicant. Each of the counsel for the offenders made oral submissions, followed, in each case, by oral submissions in response by the Crown.

2. [9]

   In the Crown’s written submissions, the Crown submitted that the only appropriate sentence for three of the offenders including the applicant was a term of full-time imprisonment. In relation to one of the offenders, Mohamad Masri, the Crown submitted that a sentence of imprisonment was appropriate, but did not oppose a submission that a full-time custodial sentence was not the only appropriate penalty for that offender.

3. [10]

   In a section of the Crown’s submissions under the heading “Setting the sentence”, the Crown said this:

4. [11]

   In his oral submissions, counsel for the applicant said this:

5. [12]

   Both in his written and oral submissions, counsel for Ali Khalil, another of the offenders, submitted that an intensive correction order (ICO) would be appropriate for his client, and counsel for Mr Masri made a similar submission in his written submissions.

Remarks on Sentence

1. [13]

   Having set out the facts relating to the offending, his Honour then considered the roles of each of the offenders to make findings of objective seriousness. In the case of the applicant, his Honour found that he was an active and trusted participant in regard to the tobacco products, he was more than a driver or passenger, and that the objective seriousness of his offence fell midway between midrange and low range for an offence of this type.

2. [14]

   His Honour next dealt with subjective aspects in relation to each of the offenders, and then dealt with issues of parity. Finally, his Honour dealt with the sentence to be imposed upon each of the offenders.

3. [15]

   Earlier in his ROS, his Honour had noted the Crown’s submissions that the only appropriate sentence for the offenders, Ali, Khalil and Kanssan was full-time imprisonment, and in relation to Mr Masri, his Honour noted that the Crown said that there might be alternatives to full-time custody.

4. [16]

   The sentencing judge said, in relation to all of the offenders:

5. [17]

   When his Honour came to sentence the applicant, he said this:

Applicant’s submissions

1. [18]

   The applicant submitted that the sentencing judge made no reference to any submissions made by his counsel and, in particular, made no reference to the submission made in relation to the imposition of an ICO.

2. [19]

   The applicant drew attention to what had been said by this Court in Blanch v R [2019] NSWCCA 304 and Wany v DPP [2020] NSWCA 318. He submitted that in the light of the submissions made on his behalf, the sentencing judge was required to consider the manner in which the sentence of imprisonment should be served.

3. [20]

   The applicant submitted that when his Honour should have been considering whether an ICO should have been made, he was obliged to consider the terms of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ( “the Sentencing Act”) .

4. [21]

   The Crown conceded that error occurred, and that the ground of appeal had been made out, particularly in the light of this Court’s decision in Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246.

Determination

1. [22]

   In Mourtada v R [2021] NSWCCA 211, Basten JA discussed the extent to which the provisions of Part 1B of the Crimes Act 1914 (Cth) pick up the procedural requirements of the Sentencing Act in relation to the imposition of an ICO. His Honour identified some difficulties at [16], but in relation to the requirement to apply s 66 of the Sentencing Act in deciding whether to make an ICO, he said at [20]:

2. [23]

   A similar view was taken by the Crown in the present case. In the absence of detailed argument about whether the requirements of s 66 are picked up where an ICO is being considered for a Commonwealth offence, it should be accepted for present purposes, in the light of the Crown’s approach, that the sentencing judge was required to consider the matters identified in s 66 if he had been contemplating making an ICO.

3. [24]

   In Mourtada, the sentencing judge gave consideration to whether an ICO should be imposed; he simply made no mention of s 66 when reaching his decision about the matter. The issue in the present case involves an anterior error; despite submissions made on the applicant’s behalf about the imposition of an ICO, the sentencing judge made no reference to that in his ROS.

4. [25]

   In Abbas Elzein, Bellew J said (Bell P and Walton J agreeing):

5. [26]

   Precisely the same position obtains in the present case. The sentencing judge failed to engage with the submission of the applicant’s counsel that consideration should be given to an ICO. In that way, it follows that no consideration was given to the requirements of s 66 of the Sentencing Act.

6. [27]

   Accordingly, the ground of appeal is made out, and the Crown’s concession in that regard is properly made.

Resentencing

1. [28]

   The applicant submitted that, bearing in mind the time the applicant has spent in custody pending the hearing of the appeal, any further sentence of imprisonment should be served in the community by way of an ICO.

2. [29]

   The Crown submitted that there was no challenge to the factual matters found by the sentencing judge, and that regard should be had to those findings in the resentence exercise. The Crown submitted that parity was a relevant consideration.

3. [30]

   In resentencing the applicant the Court is required to consider the matters in s 16A of the Crimes Act.

4. [31]

   The nature and circumstances of the offending and the course of conduct have been set out above. The following matters are significant:

5. [32]

   I agree with the sentencing judge that the applicant was an active and trusted participant in regard to the possession of the tobacco products. I consider that the objective seriousness of the offending falls midway between mid range and low range.

6. [33]

   The amount of duty evaded was $1,970,512.32 and GST of $197,051.22.

7. [34]

   Although the applicant did not give evidence at the sentence proceedings, I am prepared to find that he is remorseful in the light of what he said to the psychologist Mr Chafic Awit, and Mr Awit’s assessment of him in that regard.

8. [35]

   The plea was entered at the earliest opportunity. It is appropriate in the circumstances to allow a discount of 25% for the utilitarian value of the plea.

9. [36]

   General deterrence is an important consideration in matters involving the defrauding of the revenue. Both the author of the Sentencing Assessment Report (SAR) and Mr Awit assessed the applicant as being a low risk for reoffending. At the time of the present offending he had no prior offences, although since the present offending he has subsequently received two separate Community Correction Orders for supplying a small quantity of a prohibited drug and for dishonestly obtaining property by deception. It would appear from what he said to Mr Awit, that these offences were committed arising out of his drug habit at the time. Specific deterrence has some importance, despite his low risk of reoffending.

10. [37]

    I have already made reference to the other offences in respect of which the applicant has been convicted.

11. [38]

    The applicant has some health problems including disc bulging and disc protrusion at the C4/5 and C5/6 level, seemingly following an accident where a lift door closed on him. I note that he also appears to have problems with sleep apnoea and hypertension.

12. [39]

    The psychologist’s report provides information about the applicant’s background. He was born in Tripoli in Lebanon in 1979. Lebanon was ravaged by civil war from 1975 to 1990, and he experienced significant trauma during that time. He spent nights living underground to avoid the war. A number of people he knew including family members were killed during the war.

13. [40]

    The applicant studied computer engineering in Lebanon and subsequently accounting in Romania. He came to Australia in 2005. His qualifications were not recognized without further study being undertaken here. Although he commenced those studies at Sydney University, he was forced to drop out because of the high cost. He has worked in various areas in Australia including cabinet making, labouring, packaging, in a company that supplied airlines with food, and in a hire car position. He sustained a workplace injury when working in packaging and eventually received a lump sum payment from the WorkCover Insurance Scheme. He subsequently worked in a car dealership and then casually as an Uber driver.

14. [41]

    He was introduced to cocaine in 2016 shortly after receiving his lump sum payment for the work injury. He became addicted quite quickly, and his use of it continued until his arrest for the present offending in May 2019.

15. [42]

    Relations with his wife became strained when he was not working because of his work injury. He then had to admit to his wife that he had spent more than half of his lump sum payment on illicit substances. He eventually lost all his money and became heavily in debt due to his addiction.

16. [43]

    He married his wife in 2006 and they separated at the end of 2017. They have three children. When he was released from custody in July 2019 he returned home. The relationship was initially strained but then began to improve.

17. [44]

    Mr Awit diagnosed the applicant as suffering from extremely severe depression and extremely severe anxiety in the lead up to the period of the offending. That assessment was made on the basis of the Depression, Anxiety Stress Scale 21 (DASS21). Mr Awit said that those results were consistent with a diagnosis on the DSM-5 of Generalised Anxiety Disorder and Major Depressive Disorder. Mr Awit considered that there was a psychological link between the applicant’s condition and the offence for which he was sentenced. That link came from his ongoing impaired decision-making ability during the period of the offending.

18. [45]

    The applicant told the author of the SAR that his main motivation in becoming involved in the offending was to supplement his income and to fund his drug habit.

19. [46]

    I have also noted the affidavit of his wife which generally referred to his position as her husband and the father of their children. She made reference to his workplace injury and to the subsequent growing apart between them which led to their separation. She spoke very positively of his relationship with the children, although noting that that was affected during the time when it is apparent he was heavily involved in the use of illicit drugs.

20. [47]

    Mr Awit proposed a treatment plan involving cognitive behaviour therapy and drug counselling. Mr Awit said that if the treatment plan was followed it should greatly assist with the applicant’s rehabilitation. Taking that into account and also the insight which the applicant appears to have into his drug use and offending, disclosed in both the SAR and the psychologist’s report, I consider that his prospects of rehabilitation are reasonable.

Sentence

1. [48]

   In sentencing for a Commonwealth offence, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. The applicant was involved in organised criminal activity and in doing so committed a serious offence. His role was a significant one, and he involved himself for the purposes of supplementing his income and funding his drug habit. No sentence other than a sentence of imprisonment is appropriate.

2. [49]

   I would not alter the sentence of imprisonment for two years imposed by the sentencing judge. The question is whether, in all the circumstances, that sentence should be served in the community by an ICO.

3. [50]

   In my opinion, a combination of factors tells against that course. First, the applicant is due to be released on a recognizance in less than three months. Secondly, any ICO imposed could not extend beyond the date of the existing sentence, which is only 15 months hence. Associated with that consideration is that it is necessary for an assessment report to be obtained, and evidence obtained from a Community Corrections officer, before a final decision can be made about the imposition of an ICO: s 69 of the Sentencing Act. The existing SAR, being nine months old, would need to be reviewed. The Court is aware that such reports ordinarily take a minimum of six weeks.

4. [51]

   The result would be that if an ICO was to be imposed, that sentence could not be imposed prior to February 2022, and in those circumstances the period of the ICO would be limited to 12 months or thereabouts. Although a sentence of 12 months imprisonment (however served) would be entirely inadequate, I accept that where an offender has already served a period of fulltime custody, the length of the sentence to be served by way of an ICO may be reduced to take account of the time served: Mandranis v R [2021] NSWCCA 97 at [55] to [62]; R v Edelbi [2021] NSWCCA 122 at [80].

5. [52]

   Finally, and significantly, in circumstances where the applicant is being released on a recognizance on 10 February 2022, the imposition of an ICO would be a more severe punishment than has already been imposed. On the other hand, no basis is shown for bringing forward the date the applicant is to be released on a recognizance. Nor was such an outcome suggested on behalf of the applicant.

6. [53]

   In all the circumstances, no lesser sentence is warranted than was imposed on the applicant by Judge North on 9 April 2021.

7. [54]

   WILSON J: I joined the orders earlier made by the Court for the reasons expressed by Davies J. I also agree with the further observations of Beech-Jones CJ at CL.