R v Omar Elomar [2016] NSWDC 319

Citation: R v Omar Elomar [2016] NSWDC 319
Court: District Court of New South Wales
Date: 5 August 2016
Judge: Tupman DCJ

Background

The offender was a freight forwarder and proprietor of a registered cargo business who became part of a criminal syndicate importing large quantities of tobacco, cigarettes, and counterfeit cigarettes through Port Botany, Sydney. He appeared for sentence after pleading guilty to two Commonwealth offences of dishonestly causing a loss to the Commonwealth, with a third similar offence taken into account on a schedule.

The offences involved a method known as "piggybacking." Australian Customs assigns lower-risk profiles to importers with consistent, properly documented importation histories. The offender exploited this system by falsely attributing the details of legitimately profiled, low-risk companies to containers he was involved in importing, disguising both the true importer and the true nature of the goods. Containers of tobacco or cigarettes were declared as ceramic tiles, wet paper towel, and glass and aluminium frames respectively.

The total loss of Customs duty across all relevant counts was $5,895,851. The offender had previous convictions for similar offences, which bore on the sentencing exercise.

Legal Issues

The appropriate sentence for two counts of dishonestly causing a loss to the Commonwealth contrary to s 135.1(3) of the Criminal Code, each carrying a maximum of five years imprisonment
Whether a third similar offence should be taken into account as a schedule offence under sentencing
How parity or relativity with co-offenders should be reflected in the sentence
The offender's role in the syndicate, his rehabilitation, and other relevant subjective factors
The adequacy and proper form of the Crown's "Statement of Facts" tendered on sentence

Decision

Tupman DCJ found that the offender had played a significant role in the commission of all three offences. The piggybacking scheme was sophisticated and the total duty evaded was substantial. The offender's prior convictions for similar conduct weighed against him, although his demonstrated rehabilitation and personal circumstances, including caring for his mother, were taken into account.

Questions of parity arose because the offender had spent limited time in custody on remand before being released on bail. The court noted that the co-offender Masri had served a lengthier period of actual custody, and that imposing a sentence resulting in less than 18 months of actual time in custody would be properly perceived as unfair by that co-offender. Despite accepting that the offender's rehabilitation would likely be undermined by a return to full-time custody, the court found it had no alternative but to impose a custodial sentence, noting that four weeks in custody had never been sufficient to reflect the seriousness of the criminality involved.

The court imposed aggregate sentences of two years and six months for each substantive count, with recognizance release orders of 18 months for each, commencing 27 June 2016. The third offence (sequence 19) was taken into account as a schedule offence when sentencing for both substantive counts.

Tupman DCJ also made pointed remarks about the Crown's tendering of a 20-page document described as a "Statement of Facts" but which was, in substance, a lengthy summary of circumstantial evidence relevant to proof of guilt rather than to sentencing. The court criticised this practice as adding unnecessary delay to proceedings, noting the District Court's severe listing backlogs and the hardship caused to unsentenced remand prisoners. The court called on both prosecution and defence practitioners to fulfil their duty as officers of the court by providing concise, focused summaries of no more than approximately three pages.

Orders Made

The offender convicted on sequences 17 and 18 (the two substantive counts)
Aggregate sentence of 2 years and 6 months imposed for each count, commencing 27 June 2016 and expiring 26 December 2018
Aggregate recognizance release order of 18 months for each count, commencing 27 June 2016 and expiring 26 December 2017
Recognizance in the sum of $500, with conditions of good behaviour and to come up for sentence if called on for any breach during the bond term
Sequence 19 taken into account as a schedule offence when sentencing for both counts
Indicative sentence for each substantive offence: 2 years

Key Takeaways

The District Court confirmed that parity with co-offenders is a live consideration even where an offender has demonstrated genuine rehabilitation: the sentence must not be one that a co-offender who served more custody would reasonably perceive as unfair.
A "piggybacking" importation scheme, which exploits Customs' low-risk profiling of legitimate importers to smuggle high-duty goods under false descriptions, was treated as a sophisticated and serious method of defrauding the Commonwealth of customs duty.
Prior convictions for similar offences are a significant aggravating factor; rehabilitation and caring responsibilities, while relevant, did not displace the need for actual custodial time in a case of this seriousness.
Tupman DCJ reiterated a long-standing judicial criticism of the practice of tendering voluminous evidence summaries as "statements of facts" on sentence after a guilty plea: once a plea is entered, the relevant document should be a concise, accurate summary of the offender's role and the key facts, not a rehearsal of the evidence assembled for trial.
Under s 135.1(3) of the Criminal Code, dishonestly causing a loss to the Commonwealth carries a maximum penalty of five years imprisonment; the aggregate sentencing mechanism under s 53A of the Crimes (Sentencing Procedure) Act 1999 was applied to the two substantive counts.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) ss 131.1(3), 135.1(3)
- Crimes Act 1914 (Cth) s 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A

Cases:
- Judgment of Judge Bozic in relation to co-offender Masri (unreported, referenced in the decision but not formally cited)