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Court of Criminal Appeal 8 August 2011

Sowaid v R

[2011] NSWCCA 177

Fraud & dishonesty
CRIMINAL LAW VERDICT FOLLOWING JURY TRIAL IMPORTATION OF TOBACCO FAMILY HARDSHIP LEAVE GRANTED APPEAL DISMISSED

Citation: Sowaid v R [2011] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 8 August 2011
Judge(s): Basten JA, Simpson J, Garling J

Background

The appellant was the sole director and shareholder of a company that imported molasses tobacco and charcoal from Dubai. Between October 2008 and January 2009, she imported two containers, each holding 9,000 kilograms of molasses tobacco concealed beneath layers of charcoal. She made false declarations to the Australian Customs and Border Protection Service, claiming each container held only charcoal, on which no duty was payable.

The false declarations caused a total loss of approximately $5.96 million in customs duty. A jury convicted her of two counts of doing an act with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to section 135.1(3) of the Criminal Code, each carrying a maximum of five years' imprisonment.

In the District Court, King DCJ sentenced her to two consecutive terms of two years and six months (an aggregate of three years), with release on recognizance after one year and ten months. The appellant sought an extension of time to apply for leave to appeal against the severity of that sentence.

  • Whether the extension of time to file the application for leave to appeal should be granted
  • Whether King DCJ erred in assessing the objective gravity of the offences
  • Whether the sentencing judge gave insufficient weight to family hardship, particularly the medical condition of the appellant's young son, as a mitigating factor

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, but dismissed the appeal. Simpson J (with whom Basten JA and Garling J agreed) found no error in King DCJ's assessment of the objective seriousness of the offences. The offences were premeditated, committed purely for financial gain, and involved an extremely large amount of evaded duty. The appellant had the most significant possible role in the scheme, personally creating false documents and managing the import process.

On the family hardship ground, Simpson J confirmed that hardship to an offender's family will only justify a reduction in sentence in exceptional circumstances, going beyond what is ordinarily experienced when a parent is imprisoned. The medical evidence relating to the appellant's three-year-old son, who had suffered from a condition called immune thrombocytopenic purpura (a bleeding disorder), showed that by the time of sentencing the condition had already resolved. The remaining risk of recurrence was minimal, and the evidence fell well short of establishing exceptional circumstances.

The Court also considered whether the sentencing judge had been required to go further and give additional weight to general family distress. Simpson J held there was no evidentiary basis to conclude the appellant's imprisonment would be more burdensome than that of any other parent of young children. King DCJ had been conscious of the family impact and was not required to speculate beyond the evidence actually before him.

Orders Made

  • Extension of time to seek leave to appeal against sentence granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Family hardship as a mitigating factor in sentencing requires exceptional circumstances supported by evidence; the ordinary hardship a family experiences when a parent is imprisoned does not, of itself, warrant a sentence reduction.
  • No error was established in King DCJ's finding that offences involving approximately $5.96 million in evaded customs duty, committed by the person holding the most significant role in a premeditated scheme, warranted sentences of high objective gravity.
  • Under section 135.1(3) of the Criminal Code, each count of dishonestly causing a loss to a Commonwealth entity carries a maximum of five years' imprisonment; consecutive sentences may be imposed where multiple offences arise from separate acts.
  • Medical evidence about a child's health condition will not automatically attract mitigating weight: the Court of Criminal Appeal distinguished this case from earlier authority where very strong evidence of a serious ongoing condition had justified modest weight being given to family circumstances.
  • In dismissing the appeal, the Court confirmed that the "exceptional circumstances" test for family hardship, affirmed by both NSW and Victorian courts, continues to apply and requires a solid evidentiary foundation rather than inference or speculation.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 135.1(3)
- Crimes Act 1914 (Cth)

Cases
- Markovic v R; Pantelic v R [2010] VSCA 105
- Mokhaiver v R [2011] NSWCCA 10
- R v Luong [2000] NSWCCA 139
- R v Tiki (CCA, NSW, 24 August 1994, unreported)
- R v Togias [2001] NSWCCA 522; 128 Crim R 23