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Court of Criminal Appeal 9 August 2021

Assi v R; Jomaa v R

[2021] NSWCCA 181

Fraud & dishonesty
SENTENCING TWO APPLICANTS CUSTODIAL SENTENCES IMPOSED REJECTED CRIMES ACT 1914 (CTH) S 16A(2)(FA)(II)

Citation: Assi v R; Jomaa v R [2021] NSWCCA 181
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2021
Judge(s): Meagher JA, Garling J, Beech-Jones J

Background

Two applicants, an operations manager at a freight forwarding business and a licensed customs broker, were recruited by an undercover operative into a conspiracy to import large quantities of cigarettes from Dubai without paying excise duty. Each played a role in creating false shipping documents to disguise the contents of separate containers, deceiving the Australian Border Force. Each negotiated a fee of $80,000 for their involvement.

Both applicants were sentenced in the District Court by Judge Hunt in 2020. The freight forwarding operations manager received 24 months and 3 weeks imprisonment, with a recognizance release order after 15 months and 3 weeks. The licensed customs broker received 26 months imprisonment, with a recognizance release order after 17 months. Each applicant also had additional offences taken into account on a separate document under s 16BA of the Crimes Act 1914 (Cth).

Each applicant sought leave to appeal his sentence, with the central ground being a parity complaint: each contended that the sentence imposed on the other created a justifiable sense of grievance about his own sentence. The customs broker also raised a discrete ground concerning whether the sentencing judge had properly applied s 16A(2)(fa)(ii) of the Crimes Act 1914 (Cth) in relation to his professional status.

  • Whether the sentence imposed on the customs broker gave the operations manager a justifiable sense of grievance, or vice versa, so as to amount to a failure of parity
  • Whether the sentencing judge made a finding, and if so whether it was open, that the customs broker's professional status as a licensed customs broker was a relevant factor under s 16A(2)(fa)(ii) of the Crimes Act 1914 (Cth), which requires consideration of whether an offence involved a abuse of a position of trust or authority
  • If a ground of appeal was made out for the customs broker, whether a lesser sentence was nevertheless warranted in law

Decision

The Court (Beech-Jones J, with Meagher JA and Garling J agreeing) granted leave to appeal to both applicants but dismissed both appeals.

On the parity ground raised by the operations manager, the Court rejected the contention that his sentence was too high relative to that imposed on the customs broker. The Court found that the differences in sentence were explained by legitimate distinctions in the offending. The customs broker had received a payment of $20,000 before arrest (a factual dispute resolved against him at sentencing), held a professional licence that he exploited, and had an additional offence on his s 16BA document relating to assisting an unrelated molasses tobacco importation. Those factors justified a modestly longer sentence for the customs broker.

On the discrete ground raised by the customs broker, the Court accepted that the sentencing judge had not clearly articulated a finding under s 16A(2)(fa)(ii) that the customs broker's professional status constituted an abuse of a position of trust or authority. That ground was technically made out. However, applying s 6(3) of the Criminal Appeal Act 1912, the Court conducted an independent sentencing exercise and concluded that no lesser sentence was warranted in law, having regard to all relevant findings and parity considerations arising from the sentences imposed on co-offenders including the operations manager. Accordingly, the customs broker's appeal was also dismissed.

The Court noted that the success of the customs broker on his discrete ground raised a potential conundrum: if that ground led to a lower sentence for the customs broker, the operations manager's parity complaint would need to be revisited by reference to the lower figure. However, because the independent exercise produced no lesser sentence, that conundrum did not arise and it was not necessary to reconsider the operations manager's parity ground in light of any revised sentence.

Orders Made

In respect of the customs broker (Jomaa):
- Leave to appeal granted from the sentence imposed in the District Court on 25 September 2020
- Appeal dismissed

In respect of the operations manager (Assi):
- Leave to appeal granted from the sentence imposed in the District Court on 26 August 2020
- Appeal dismissed

Key Takeaways

  • Parity in sentencing does not require identical sentences. Where co-offenders differ in relevant respects, including professional status, the payments actually received, and the number and nature of additional offences, a modest difference in outcome will not generate a justifiable sense of grievance.
  • Under s 16A(2)(fa)(ii) of the Crimes Act 1914 (Cth), a sentencing court must make a clear finding as to whether an offence involved the abuse of a position of trust or authority. A failure to articulate that finding can constitute error even where it may have been open on the facts.
  • In dismissing the customs broker's appeal despite a ground being technically made out, the Court of Criminal Appeal applied s 6(3) of the Criminal Appeal Act 1912, which directs that an appeal be dismissed where no lesser sentence is warranted in law, even when a sentencing error has been identified.
  • Where the Court of Criminal Appeal conducts an independent sentencing exercise following a finding of error, it remains obliged to apply parity principles with reference to the sentences of co-offenders, including any co-offender who is also an appellant.
  • The interdependence of parity arguments across multiple appellants can create procedural complexity. Here, the Court noted that a reduced sentence for one appellant could have required revisiting the other's parity ground, but that issue did not ultimately arise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including ss 16A(2)(fa)(ii), 16BA, 19AC(1)
- Criminal Code (Cth), ss 135.4(3), 144.1(1), 400.5(1)
- Customs Act 1901 (Cth), s 233BABAD(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lowe v The Queen (1984) 154 CLR 606
- House v R (1936) 55 CLR 501
- DS v R [2014] NSWCCA 267
- Turnbull v R [2019] NSWCCA 97
- R v Taouk (1992) 65 A Crim R 387