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13
Court of Criminal Appeal 4 December 2015

R v Saleh

[2015] NSWCCA 299

Also reported as (2015) 257 A Crim R 212
Fraud & dishonesty
TOBACCO IMPORTATION DEFRAUDING THE REVENUE SUBSTANTIAL PARTICIPATION FULL TIME CUSTODY REQUIRED

Citation: R v Saleh [2015] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 4 December 2015
Judges: Johnson J, Beech-Jones J, RS Hulme AJ

Background

The respondent pleaded guilty on 25 June 2014 to aiding and abetting the importation of tobacco products with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth). His involvement spanned 12 days in March 2013, and the tax sought to be evaded totalled just under $997,000. A co-offender, Mr Harmouche, was sentenced separately.

In the District Court, Sweeney DCJ imposed a suspended sentence on the respondent on 29 May 2015. The Crown appealed on the grounds that the sentence was manifestly inadequate and that the sentencing judge had made errors in characterising the seriousness of the offence and in applying the discount for the plea of guilty.

The Court of Criminal Appeal allowed the appeal by majority and resentenced the respondent to full-time imprisonment, though the three judges differed on the appropriate length of that sentence.

  • Whether the sentencing judge erred in characterising the respondent's offending as of "low, rather than moderate seriousness" for a s 233BABAD(1) offence
  • Whether the sentencing judge erred in her approach to the guilty plea discount
  • Whether the sentence imposed was manifestly inadequate
  • Whether a full-time custodial sentence was required, and if so, for what term
  • Whether the sentence should be backdated to the original sentencing date, given delays in the District Court proceedings
  • The proper application of s 16A(2)(p) of the Crimes Act 1914 (Cth) regarding the effect of a sentence on family members

Decision

The Court unanimously held that the sentencing judge's characterisation of the offending as "low" seriousness was not open to her. An offence under s 233BABAD(1) is fundamentally an offence against the revenue, and the scale of the enterprise here was substantial. The amount of tax sought to be avoided was close to $1 million, and the logistics of the importation were significant. Although the respondent participated as an aider and abettor over only 12 days and was not the principal behind the scheme, his involvement was described as "reasonably significant."

On the guilty plea discount, the Court did not find it necessary to determine whether the sentencing judge had erred on this point. Beech-Jones J noted that the approach in Tyler v R [2007] NSWCCA 247 remained applicable law in this Court and should be followed unless determined in an appropriate case to have been clearly wrong.

All three judges agreed that a full-time custodial sentence was required. The majority (Johnson J and Hulme AJ) considered that imprisonment for 3 years with a non-parole period of 2 years was warranted. Beech-Jones J dissented on the length, proposing 2 years with release after approximately 15 months, placing greater weight on two factors: the guidance to be drawn from comparable tax and revenue fraud cases involving aiders and abettors (rather than principals), and the hardship to the respondent's partner and five children under s 16A(2)(p) of the Crimes Act 1914 (Cth). Beech-Jones J maintained that s 16A(2)(p) applies according to its terms and is not confined to cases involving exceptional circumstances.

All members of the Court agreed that the sentence should be backdated to 29 May 2015, the date of the original District Court sentence. The Court noted significant delays in the District Court proceedings caused by the matter twice not being reached on listed dates, and that those systemic failures should not further disadvantage the respondent.

Orders Made

The majority orders (as reflected in the orders section provided) were:

  • The appeal be allowed
  • The sentence imposed on 29 May 2015 be set aside
  • The respondent be sentenced to imprisonment for 2 years commencing 29 May 2015 and expiring 28 May 2017, with release directed on 28 August 2016 upon entering into a recognizance to be of good behaviour until the expiry of the sentence

(Note: These orders reflect the minority position of Beech-Jones J as extracted. The majority of Johnson J and Hulme AJ proposed a 3-year term with a 2-year non-parole period from the same commencement date. The orders section provided corresponds to Beech-Jones J's proposed orders.)

Key Takeaways

  • Characterising a s 233BABAD(1) tobacco importation offence as "low" seriousness was not open to the sentencing judge where the tax evaded approached $1 million and the scale of the enterprise was substantial, even where the offender's role was that of an aider and abettor over a limited period.

  • A suspended sentence was manifestly inadequate for an offence of this nature and scale; the Court of Criminal Appeal confirmed that full-time imprisonment was required.

  • The Court identified and sought to correct a trend at first instance of not treating revenue fraud offences on this scale as sufficiently serious to warrant full-time custody, treating that trend as a relevant consideration in the exercise of the discretion to resentence.

  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), courts sentencing for federal offences must consider the probable effect of a sentence on the offender's family or dependants; Beech-Jones J, consistent with his earlier reasoning in Zerafa, reaffirmed that this provision applies according to its terms and is not limited to cases involving exceptional circumstances.

  • Where delays in District Court proceedings resulted from systemic failures rather than the conduct of the offender, backdating the fresh sentence to the original sentencing date was appropriate.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BABAD(1)
- Crimes Act 1914 (Cth), ss 16A, 20(1)(b)
- Excise Act 1901 (Cth)
- Excise Amendment (Compliance Improvement) Act 2000 (Cth)

Cases
- C v R [2013] NSWCCA 81
- CMB v Attorney-General (NSW) [2015] HCA 9
- Commissioner of Taxation v Cocaj [2004] QCA 69
- Director of Public Prosecutions v Gow [2015] NSWCCA 208
- Director of Public Prosecutions (Cth) v Northcote [2014] NSWCCA 26
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- DPP (Cth) v Gregory [2011] VSCA 145
- DPP v Bulfin (1998) 4 VR 114
- Elshani v R [2015] NSWCCA 254
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Hili v The Queen [2010] HCA 45
- Isaac v R [2012] NSWCCA 195
- Mulato v R [2006] NSWCCA 282
- Munda v Western Australia [2013] HCA 38
- R v Glynatsis [2013] NSWCCA 131
- R v Zerafa [2013] NSWCCA 222
- Tyler v R [2007] NSWCCA 247