Assi v R; Jomaa v R

1. [1]

   MEAGHER JA: I agree with Beech-Jones J that leave to appeal should be granted to each applicant and that each of the appeals should be dismissed for the reasons his Honour gives.

2. [2]

   GARLING J: I agree with the orders proposed by Beech-Jones J, and with his Honour’s reasons for those orders.

3. [3]

   BEECH-JONES J: This is an application for leave to appeal from sentences imposed on the two applicants for committing various offences relating to the importation or agreed importation of tobacco in respect of which the proper amount of excise duty was either not paid or not intended to be paid. The main complaint of each applicant is that they have a justifiable sense of grievance arising out the sentence imposed on the other. For the reasons that follow I do not accept either contention.

Background

1. [4]

   On 26 August 2020 the applicant, Yehia Assi (“Assi”), was sentenced by his Honour Judge Hunt to a term of imprisonment of 24 months and 3 weeks for one offence of conspiring with others, including the other applicant, Mouhammed Jomaa (“Jomaa”), with the intention of dishonestly causing a loss to a third party, namely the Australian Border Force, contrary to s 135.4(3) of the Criminal Code (Cth). Pursuant to s 19AC(1) of the Crimes Act 1914 (Cth) his Honour made a recognizance release order the effect of which is that Assi may be released after serving 15 months and 3 weeks of his sentence. In sentencing Assi, his Honour took into account two further offences included in a document prepared in accordance with s 16BA(1) of the Crimes Act 1914 as set out in the table below (a “s 16BA document”).

2. [5]

   On 25 September 2020, Jomaa was sentenced by Judge Hunt to a term of imprisonment of 26 months for the offence under s 135.4(3) of the Crimes Act 1914. His Honour made a recognisance release order the effect of which is that Jomaa may be released after serving 17 months imprisonment. In sentencing Jomaa his Honour took into account three further offences included on a s 16BA document.

3. [6]

   The principal offences committed by each of Assi and Jomaa arose out of what was referred to as the “Dubai conspiracy”. The offences committed by each applicant, their maximum penalties, their co-offenders and the sentences imposed were as follows:

4. [7]

   Although the applicants’ co-offenders were also involved in the Dubai conspiracy and the importation described as the “Oporto conspiracy”, they were involved in other criminal conduct and their roles in the various offences were much greater than those of each applicant. Accordingly, they received much longer sentences. Given that and that no part of any party’s argument concerning parity relates to those offenders it is not necessary to address their circumstances.

Factual Background

1. [8]

   In light of the parity ground that each applicant raises, it is necessary to describe the factual circumstances of the offending and the findings made by his Honour in relation to each of the two offenders. The following is taken from a number of statement of facts that were tendered at the sentencing hearing.

2. [9]

   In August 2014, an investigation was commenced by the Polaris Joint Waterfront Taskforce (“JWTF”) into various persons employed in the waterfront sector and their alleged involvement in the illicit importation of drugs and tobacco products. The JWTF investigators engaged an undercover operative (“UCO”) and supplied the majority of the tobacco products used in the investigation including the cigarettes the subject of the Dubai conspiracy.

3. [10]

   The UCO met the conspirator Kadouh in October 2014 and then Abbas El Zein and Ahmad El Zein in April 2015. The UCO told Abbas El Zein that he had $2,000,000 worth of cigarettes which he proposed to import and sought the assistance of two “brokers” to “land the containers”. Abbas El Zein introduced him to three “brokers”, two of whom were Assi and Jomaa. Assi was employed as an operations manager/truck driver by a freight forwarding business that specialised in international air and sea cargo movement. Jomaa was described as an “experienced licence customs broker”. Thereafter, the UCO and the conspirators pursued the arrangements to receive and transport two containers of cigarettes from Dubai. In the end result, two 20-foot containers arrived in Sydney on 25 September 2015, each of which contained 230,000 packets of 20 cigarettes, being container “580” and container “770”. Excise duty of $2,438,441.60 was payable on each container.

4. [11]

   Jomaa assisted in the importation of container 770. According to the agreed facts, he “created and agreed to arrange for the submission of false shipping documents onto the secure Border Force database known as the Integrated Cargo System” (“ICS”). This included creating a commercial invoice and a packing declaration that falsely represented the contents of the shipping container as golf bags to avoid excise duty. Jomaa negotiated a fee of $80,000 from the UCO for his role. There was a dispute over whether by the time he was arrested he had been paid an initial amount of $20,000 but, as noted below, this issue was resolved against him. The receipt of that sum by Jomaa constituted the offence under s 400.5(1) of the Code included on his s 16BA document.

5. [12]

   Assi assisted in the importation of container 580 principally by the creation of false shipping documents. For example, he created a packing list and a commercial invoice that falsely represented the contents of the shipping container as waterproofing material. These false documents were provided to Assi’s partner who was the sole Director and manager of his employer. She held a customs depot licence under the Customs Act 1901 to store imported products subject to customs control and which permitted her to have access to the ICS. The information in the false documentation was loaded onto the ICS yielding an assessment of excise duty, although Mr Assi denied that he provided the documents to his partner. Assi negotiated a fee of $80,000 with an upfront amount of $20,000 payable before the importation. At the time of his arrest the balance had not been paid. The receipt of $20,000 by Assi constituted the offence under s 400.5(1) of the Code included on his s 16BA document.

6. [13]

   As the above table makes clear, one of the offences included on the s 16BA document for Assi concerned the “Oporto conspiracy”. According to the agreed facts, this conspiracy was formed at a meeting at an Oporto restaurant on 1 July 2015 attended by Assi and three others. The conspirators discussed how Assi could assist the import into Australia of 15 boxes containing 750 packets of cigarettes so as to avoid excise duty. Assi participated in a number of meetings about the proposed importation before he was arrested on 30 September 2015 prior to the cigarettes being smuggled into Australia.

7. [14]

   In relation to Jomaa’s s 16BA document, on 29 January 2015 a consignment arrived in Sydney from Beirut. The accompanying documents falsely stated that the consignment contained garments but it in fact contained 80.5kg of molasses tobacco. The principal behind the importation was another offender who coincidentally was also named Mouhammed Jomaa (the “principal offender”). The agreed facts record that Jomaa assisted the principal offender “by advising him in a series of conversations, including telephone calls, where they referred to the consignment in code, in relation to [c]ustoms procedures, knowing that [the principal offender] was falsely declaring the molasses tobacco in order to avoid excise duty”. The amount of duty avoided was $47,303.41. Jomaa’s conduct in assisting the principal offender was the offence of aid and abet attempt to import goods with intent to defraud contrary to s 233BABAD(1) of the Customs Act included on his s 16BA document.

8. [15]

   The agreed facts also record that on 10 April 2014 an import declaration was lodged by Jomaa in his capacity as a customs broker. It was purported to have been created by an Egyptian business known as “Alnada Company” via the ICS (“Alnada”). The import declaration asserted that a particular consignment contained 1500kg of “tea leaves, loose” worth $3903.20 whereas it actually contained mallow leaves being an edible green vegetable harvested as food source. Jomaa and the principal offender became aware of the falsity of the import declaration. The principal offender amended the import declaration to refer to mallow leaves and falsified a letter from Alnada which purported to record that the mallow leaves did not represent a quarantine risk. Jomaa provided the false document to the Department of Agriculture knowing that it was false. Jomaa’s conduct constituted the offence of making false documents to influence the exercise of a duty or function of a public official contrary to s 144.1(1) of the Code which was included in his s 16BA document.

Sentencing Judge’s Finding concerning the offences

1. [16]

   The sentencing proceedings for Jomaa and Assi were heard at the same time as the other co-offenders. Those proceedings occupied four hearing days. The sentencing judgment took over three days for his Honour to deliver. On the first day that the judgment was delivered, his Honour set out the facts concerning the offences. On the second day, his Honour addressed some of the sentencing principles applicable to all the offenders including Jomaa and Assi. The balance of that day and the third day addressed the contested facts concerning the offences and each offender’s subjective case. At the end of the third day his Honour sentenced Assi and the co-offenders other than Jomaa who secured an adjournment to 25 September 2020 to provide medical evidence. Jomaa was sentenced on that day.

2. [17]

   In his sentencing judgment, Judge Hunt recited the facts surrounding the offences committed by the applicants and their co-offenders. His Honour also made findings in respect of the disputed matters.

3. [18]

   In relation to Assi, his Honour found that, with the Dubai conspiracy, he “was a willing, knowledgeable participant and integral to the agreement to defraud Customs”. His Honour found that he produced fraudulent documents that were of an “amateurish standard”. His Honour found that they were provided on a USB stick and that Mr Assi was paid $20,000 upfront as part of the negotiated fee of $80,000.00. His Honour was not satisfied beyond reasonable doubt that Assi used his wife to further the offence although his Honour accepted that Assi provided the UCO with her email address.

4. [19]

   His Honour referred to three meetings attended by Assi. Thus, his Honour found that on 8 September 2015 Assi met the UCO and Abbas El Zein. During the meeting the UCO handed Assi a typed document that the UCO had created which included the container number and what was to be reported as its contents. During that meeting Assi was handed $20,000 in cash as a “deposit”.

5. [20]

   His Honour also found that:

6. [21]

   His Honour found that “[o]n 22 September 2015 [Assi] met Abbas El Zein at Punchbowl and gave him the fraudulently created packing list for the container and a fraudulently created commercial invoice”. His Honour observed that “[a]lthough Assi does not fall in the same category as Jomaa as having breached particular duties that arise by somebody who is a licensed broker, it is clear he had some involvement broadly in the Customs and importation system that meant that he was able to assist the other co-conspirators and certainly did so”.

7. [22]

   In relation to the Oporto conspiracy, his Honour found that Assi “had an important, albeit not critical role and that he engaged himself in the negotiations with [the co-conspirators] in an attempt to receive financial reward”, although that reward “would have been relatively modest given the number of conspirators involved”.

8. [23]

   In relation to Mr Jomaa’s offending, his Honour found:

9. [24]

   His Honour also found that Jomaa committed the offence concerning the importation of molasses for financial reward although his Honour could not quantify the amount of the reward. His Honour found that the offence under s 144.1(1) of the Code included on his s 16BA document involved a breach of his obligations as a broker and “that offence will place some upward pressure on the sentence for the Dubai conspiracy but not as much” as the offence on the s 16BA document concerning the importation of molasses.

Other aspects of the sentencing judgment

1. [25]

   Two further aspects of so much of the sentencing judgment as concerns Assi and Jomaa should be noted.

2. [26]

   First, as noted, his Honour set out the various sentencing principles that were engaged by each of offenders’ cases. The sentencing principles or factors relevant to Jomaa and Assi that his Honour noted were the potential injury or loss resulting from the offences being the effect on the revenue of the Commonwealth (s 16A(2)(e)), the necessity to take into account any contrition they have demonstrated (s 16A(2)(f)) and their pleas of guilty (s 16A(2)(g). For each of Jomaa and Assi his Honour allowed a discount of 17.5% on account of their pleas. His Honour also noted the necessity to address general deterrence as well as their character and antecedents.

3. [27]

   Further, in relation to Jomaa, his Honour found that, by reason of his position as customs broker, the factor specified in s 16A(2)(fa)(ii) of the Crimes Act 1914 was established and was taken into account on sentencing. This aspect of his Honour’s judgment is the subject of ground 2 of Jomaa’s appeal and is addressed below. His Honour also addressed parity as between all the offenders and specifically as between Jomaa and Assi. This aspect of his Honour’s judgment is the subject of ground 1 of both of their appeals.

4. [28]

   Second, his Honour addressed the personal circumstances of each offender. In relation to Assi, his Honour noted that he had a conviction for using a false statement in a statement of affairs in 2012 for which he undertook a community service order and in 2015 for disposing of property with intent to defraud for which he received a conditional release order under s 10 (of the Crimes (Sentencing Procedure) Act 1999)). However, his Honour noted a number of good character references tendered on behalf of Assi. His Honour noted the effect of a psychologist’s report who assessed him as having a “low risk of recidivism”, below average intelligence and depression due to the currency of the proceedings. The same report noted that Assi’s first language is Arabic and although he spoke English he had “no ability [to] read, write and fully comprehend in English”.

5. [29]

   In relation to Jomaa, his Honour found that he had low prospects of reoffending”. His Honour noted that Jomaa expressed regret for his offending and “acknowledged that he held a position where his integrity was expected to be paramount”. His Honour regarded his partial admissions as being able to be “taken into account as some level of cooperation with law enforcement authorities”. Even though his expression of remorse and personal history was not given on oath, given that they were supported by other evidence his Honour stated that he was “in a position to accord that material some weight”. Otherwise, his Honour took into account various statements as to his good character, his lack of any criminal antecedents and the poor health of his wife who is dependent on him for care and for looking after their children. His Honour also noted and gave weight to a diagnosis of Jomaa as having an “adjustment disorder with anxiety and depression” and that a psychiatrist assessed him as having “good prospects for rehabilitation”.

Ground 1 of each appeal: Parity

1. [30]

   The sole ground of Assi’s appeal is that a “legitimate sense of grievance arises on the part of the applicant given the sentence imposed upon Mohammed Jomaa”. Ground 1 of Jomaa’s appeal is that the “applicant has a justifiable sense of grievance in light of the sentence imposed.”

2. [31]

   The parity principle holds that there should not be a “marked disparity” between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance” in one of them (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J; [1984] HCA 46). The application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences or, as in this case, are sentenced for the same offence but have different offences included in a document prepared under s 16BA. Instead, the application of the principle is governed “by considerations of substance rather than form” (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]). In DS v R [2014] NSWCCA 267 at [39] (“DS”) the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows:

3. [32]

   As noted, Judge Hunt addressed parity in his reasons. Thus, in sentencing Jomaa, his Honour stated:

4. [33]

   The written submissions filed on behalf of Jomaa embraced these findings. They also accepted that his role as a licensed customs broker increased the objective seriousness of the primary offence but only “slightly”. However it was submitted that there were four differentiating factors between the two cases that warranted a conclusion that Jomaa should receive “a lesser sentence than Mr Assi, or at the very least a sentence no more severe”, namely his (i) good character in that Mr Jomaa had no prior convictions whereas Mr Assis did; (ii) his subjective case being the impact on his family; (iii) the extra-curial punishment that Mr Jomaa suffered as noted in the above extract; and (iv) a comparison of the gravity of the offences included on their respective s 16BA documents.

5. [34]

   Save for in one important respect, the submissions made on behalf of Assi were the mirror image of Jomaa’s submissions. Hence, the submissions emphasised Jomaa’s breach of trust as a licensed customs broker and contrasted that with the unsophisticated documents produced by Assi. It was contended that the offences included on Jomaa’s s 16BA document were “cumulatively, no less serious than those of [Assi] having regard to the number of offences, their maximum penalties and their objective seriousness” and described Assi as “having only a limited record for offences of dishonesty and was at some real intellectual disadvantage.” So far as extra curial hardship was concerned, the submissions noted that, despite the loss of his customs broking licence, Jomaa was able to obtain employment as a customs certifier whereas Assi had not worked as a truck driver for three years.

6. [35]

   In addition, Assi’s written submissions sought to advance a contention that his moral culpability for the principal offence was reduced on account of his actual or possible entrapment by the UCO. The submissions note that it was submitted to Judge Hunt that he was “lured” into the agreement by the UCO and complain that the sentencing judge only “briefly addressed the submissions put by various offenders they were entrapped or enrolled in the enterprise by virtue of the activities of the UCO”. The submissions contend that his Honour did not address a proposition extracted from the judgment of Badgery-Parker J in R v Taouk (1992) 65 A Crim R 387 at 404 (Taouk”) to the effect that where “there is a real possibility that but for the assistance, encouragement or incitement offered by police officers” the offender would not have committed the crime then there is a question as to “whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability”.

7. [36]

   Judge Hunt did not just “briefly” address the contention that at least some of the offenders were “entrapped”, or at least enticed, to commit the principal offence by the UCO. Instead, his Honour addressed it in detail as follows:

8. [37]

   Judge Hunt attributed this submission concerning entrapment to “various offenders”. Those offenders included Abbas El Zein and Ahmad El Zein. Their Counsel submitted to his Honour that their “introduction [into the conspiracy] came as a direct result of the strategy [of the UCO and his superiors] and the authorities setting up an opportunity for this to occur”. However, it is unclear whether the reference to “various offenders” also included Assi. The only relevant submission put on his behalf was the contention that the $20,000 was “paid to him at that time in an effort to induce him to finally do something to show that he was participating in this importation”. However, if that was meant to be a submission that he was entrapped or lured into the conspiracy then it was equally applicable to Jomaa because, before Judge Hunt, Jomaa’s Counsel adopted the submission of Assi’s Counsel in relation to the payment of $20,000 because “Mr Jomaa is in much the same position”.

9. [38]

   In considering this complaint, it is to be remembered that Assi does not raise a separate ground of appeal about Judge Hunt’s assessment of his moral culpability. Instead, he seeks to deploy the possibility that he was entrapped as something that somehow distinguishes his circumstances from that of Jomaa. However, in the above extract his Honour positively found that the offenders were not entrapped by the UCO into doing something they would not otherwise do but did find themselves participating in a conspiracy to import a larger amount of tobacco that they might otherwise have by reason of the UCO’s conduct. Critically, for the purposes of this ground of appeal, that finding was equally applicable to both Assi and Jomaa with the consequence that it adds nothing to any differentiation between the two. Otherwise, his Honour referred to Taouk and to the fact that they committed other offences without the involvement of the UCO can be taken as excluding the possibility of their being entrapped into a conspiracy to dishonestly cause a loss per se (as opposed to causing a loss corresponding to the large amount of tobacco imported).

10. [39]

    There remains to consider the competing submissions about parity. In the passage set out above (at [32]), Judge Hunt recognised the greater objective seriousness of Jomaa’s participation in the Dubai conspiracy by reason of his status as a licensed customs broker but held that was partially offset by Assi’s (limited) criminal record and an assessment that the matters on Jomaa’s 16BA document are “slightly less serious” than those on Assi’s s 16BA document. Each of those assessments was not only “open” to his Honour; they were, with respect, correct. The other factors referred to in the submissions of Jomaa and Assi on this topic were correctly addressed by his Honour.

11. [40]

    Both the head sentence and the non-parole period imposed by his Honour on Jomaa were 1 month and 1 week longer than that imposed on Assi. That relatively modest difference in sentence must be assessed in a context whereby the overall sentences imposed were relatively modest and were otherwise very lenient given the criminality involved. Overall, this is not a case where “the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending” such that appellate intervention is required (DS at [39]). Instead, the disparity in the sentence was completely justifiable and justified. It was certainly not ’gross’, ’marked’ or ’glaring’ (DS at [39]).

12. [41]

    Subject to considering the balance of the issues in the appeal, this is sufficient to dispose of ground 1 of each appeal.

Jomaa Ground 2: s 16A(2)(fa)(ii) obligation under law of the Commonwealth

1. [42]

   At the hearing of the application, Jomaa was granted leave to amend his notice of appeal to add an additional ground as follows:

2. [43]

   Section 16A(2)(fa) of the Crimes Act relevantly provides:

3. [44]

   Before Judge Hunt, the Crown initially submitted that this provision was applicable to Assi and Jomaa “especially… the latter”. However, in response to a defence submission it conceded “that the provision does not apply in this case”. However, the sentencing judge applied it to Jomaa stating as follows:

4. [45]

   This passage reveals error on the part of his Honour in that is clear that the s 16A(2)(fa)(ii) was not applicable to Jomaa by reason of his being a licensed customs broker or otherwise. Nothing about Jomaa’s status as a licensed customs broker meant that his conduct involved a failure to comply with an “obligation under a law of the Commonwealth …. about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence”.

5. [46]

   Consistent with its submissions at first instance, the Crown conceded that his Honour erred. However, the Crown did not concede that “that it was wrong for Honour to take into account on sentence that Jomaa was a licenced customs broker” and did not concede “that his Honour erred in the sentencing process, in that it is clear elsewhere in the Reasons on Sentence that his Honour did approach the particular qualification of Jomaa in a correct manner”. It follows from the above that it was correct for his Honour to take into account Jomaa’s status as a licensed customs broker in assessing the objective seriousness of his offending. I also accept that elsewhere in the judgment his Honour correctly took that circumstance into account. Nevertheless, the above passage reveals that the sentencing judge acted upon “upon a wrong principle” in concluding that the factor referred to in s 16A(2)(fa) was established (House v R (1936) 55 CLR 501 at 504 to 505). As the sentencing judge has acted upon a wrong principle then it follows that his Honour erred in the sentencing process. This Court “does not assess whether and to what degree the error influenced the outcome” but instead it must perform “its duty to exercise the [sentencing] discretion afresh” (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; “Kentwell”).

6. [47]

   I would uphold ground 2 of Jomaa’s appeal.

Exercise of Sentencing Discretion

1. [48]

   In Turnbull v R [2019] NSWCCA 97 at [44] to [46] (“Turnbull”), Simpson AJA (with whom Ierace J agreed, Wilson J not deciding) described the approach to the re-exercise of the sentencing discretion as follows:

2. [49]

   I will adopt this approach. In particular, in exercising the sentencing discretion afresh I will adopt Judge Hunt’s findings of fact, assessments of objective seriousness and the subjective case, discounts on account of pleas and assessment of other sentencing factors save for his findings on s 16A(2)(fa) and parity.

3. [50]

   Jomaa’s success on a discrete ground is capable of raising a conundrum. In particular, his success on ground 2 requires this Court embark on an independent exercise of the sentencing discretion so far as he is concerned. In exercising that discretion, this Court, like the sentencing judge, is obliged to have regard to parity principles especially as concerns the sentence imposed on Assi (Green at [37] to [45]). Further, even though Assi’s complaint about parity with the sentence imposed on Jomaa at first instance was rejected, if the result of the independent exercise of the sentencing discretion was to lead to a lower sentence for Jomaa then this Court would have to re-address Assi’s complaint about lack of parity by reference to that lower sentence.

4. [51]

   However, on the view I take this conundrum does not arise. Having regard to the findings noted in [49] as well as parity considerations arising from the sentences imposed on the co-offenders including Assi, I am satisfied that no lesser sentence is warranted in law for Jomaa (Criminal Appeal Act 1912, s 6(3)). It follows that I would dismiss his appeal (Kentwell at [43]). In light of that conclusion there is no occasion to reconsider Assi’s complaint about lack of parity between his sentence and that imposed on Jomaa.

Proposed Orders

1. [52]

   Accordingly, I propose the following orders: