AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 January 2019

R v Mourad

[2019] NSWDC 38

Fraud & dishonesty
SENTENCING MULTIPLE OFFENCES GUILTY PLEA NO PRIOR CRIMINAL HISTORY UNLIKELY TO REOFFEND SPECIFIC AND GENERAL DETERRENCE

Citation: R v Mourad [2019] NSWDC 38
Court: District Court of New South Wales
Date: 11 January 2019
Judge: M L Williams SC DCJ

Background

The offender was the sole director of a business selling hookah smoking products. Between April 2015 and May 2016, he arranged the importation of Molasses tobacco on two separate occasions while falsely declaring to Customs that the shipments contained no tobacco. The offending caused total revenue losses of approximately $1.21 million in unpaid duty.

The first importation involved 1,449 kilograms of Molasses tobacco, defrauding the revenue of $961,730. The second involved 375 kilograms imported under a false name, evading a further $251,880 in duty. Both shipments were accompanied by falsified documentation and packaging designed to conceal their tobacco content.

The offender pleaded guilty to two counts under s 233BABAD(1) of the Customs Act 1901 (Cth), each carrying a maximum penalty of ten years imprisonment. He had no prior criminal history and had spent no time in custody since his arrest in August 2016.

  • Whether the objective seriousness of the offending, combined with the need for general and specific deterrence, required a fulltime custodial sentence.
  • What weight to give the offender's guilty plea, expressions of remorse, personal circumstances, low risk of reoffending, and psychological evidence in mitigation.
  • Whether an Intensive Corrections Order was an appropriate alternative to fulltime imprisonment.
  • How to apply the sentencing principles for serious revenue fraud offences, as summarised in R v Zhang (2017) 265 A Crim R 113.

Decision

The court found the offending to be seriously aggravated. The offender had known from the outset that his conduct was illegal, as evidenced by a text message he sent in May 2015. Despite being spoken to by Border Force officers in September 2015, he went on to commit a second, more sophisticated course of offending the following year, using a false identity. The court characterised the claimed financial and emotional motivations as scarcely credible, noting there was no evidence of genuine financial hardship and that the offender had access to significant personal funds.

The court accepted that the offender was genuinely remorseful, had a low risk of reoffending, and had the support of a close family. Evidence from a clinical psychologist confirmed anxiety and depression, which had worsened since arrest. The court also accepted the utilitarian value of the early guilty plea. However, these mitigating factors were not sufficient to displace the need for a custodial term.

Citing R v Kopa (2004) 145 A Crim R 159, Commissioner of Taxation v Cocaj [2004] QCA 69, and R v McKay [2007] NSWSC 275, the court affirmed that deliberate large-scale revenue fraud calls for significant custodial sentences. The court noted that such offending is difficult to detect, the potential rewards are substantial, and real deterrence requires actual imprisonment rather than a community-based order. The court rejected the proposal for an Intensive Corrections Order.

The sentencing framework under Part 1B of the Crimes Act 1914 (Cth) was applied, including the requirement under s 16A to impose a sentence of appropriate severity, and the requirement that imprisonment not be imposed unless no other sentence is suitable. Despite the availability of community-based dispositions, the court concluded that fulltime custody was unavoidable given the nature and scale of the offending.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of three years imprisonment was imposed, commencing 11 January 2019 and expiring 10 January 2022.
  • After serving two years, the offender is to be released on a recognisance of $100, subject to good behaviour for one year and supervision by Community Corrective Services.
  • Indicative sentences: two years and six months on each of Counts 1 and 2.

Key Takeaways

  • Deliberate large-scale revenue fraud involving false documentation and repeat offending will ordinarily attract fulltime custody, even where the offender has no prior convictions, pleads guilty, and demonstrates genuine remorse.
  • Under the sentencing framework in R v Zhang, relevant factors include the offender's role, the sophistication of the scheme, the period of offending, the quantity of goods imported, the amount of duty evaded, use of false identities, and the extent of personal financial gain.
  • General deterrence carries particular weight in tobacco importation fraud because the offending is difficult to detect and the financial rewards can be substantial, making community-based orders an inadequate response in serious cases.
  • Mitigating factors such as psychological illness, family responsibilities, low reoffending risk, and an early guilty plea remain relevant to the length of the sentence, but the District Court held they did not justify a non-custodial disposition on the facts here.
  • Where a defendant continues offending after a warning from regulatory authorities, that conduct significantly undermines claims that the offending arose from temporary financial or emotional pressure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Part 1B and s 16A
- Customs Act 1901 (Cth), s 233BABAD(1)

Cases:
- Commissioner of Taxation v Cocaj [2004] QCA 69
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v Kopa (2004) 145 A Crim R 159
- R v McKay [2007] NSWSC 275
- R v Saleh [2015] NSWCCA 299
- R v Zhang (2017) 265 A Crim R 113
- Samardali v The Queen [2018] WASCA 220
- Xiao v R [2018] NSWCCA 2
- Young v The Queen [2016] VSCA 149