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Court of Criminal Appeal 27 October 2021

Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R

[2021] NSWCCA 246

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL ERROR ESTABLISHED APPLICANTS RESENTENCED O BJECTIVE SERIOUSNESS OF THE OFFENDING

Citation: Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 27 October 2021
Judges: Bell P, Walton J, Bellew J

Background

Three co-offenders, referred to throughout the judgment as Abbas, Ahmad and Doughan, were sentenced in the District Court in 2020 following guilty pleas to various Commonwealth offences arising from an investigation by the "Polaris Joint Waterfront Taskforce." The taskforce focused on illicit importation of goods, particularly tobacco products, through sea cargo terminals in New South Wales.

The charges included possessing imported tobacco products with intent to defraud the revenue, importing tobacco with intent to defraud, and conspiracy to dishonestly cause a financial loss to the Australian Border Force. The conspiracy count alleged an intended loss of approximately $4.87 million. Abbas faced five counts and a further offence taken into account on sentence; Ahmad faced three counts with two further offences taken into account; Doughan faced two counts with one further offence taken into account.

All three applied to the Court of Criminal Appeal for leave to appeal their sentences. The sentencing proceedings were described by the Court as "complicated and difficult," involving complex facts, numerous co-offenders, and a multiplicity of charges.

  • Whether the sentencing judge erred by failing to engage with specific submissions made by Ahmad and Doughan regarding their rehabilitation prospects
  • Whether the sentencing judge erred by failing to engage with Doughan's specific submissions about the possibility of an Intensive Correction Order (ICO)
  • Whether the delay between arrest and sentence, and between the sentence hearing and delivery of sentence, was properly accounted for
  • What sentences were appropriate on resentence, taking into account objective seriousness, general deterrence, rehabilitation, and parity with co-offenders
  • Whether the sentence imposed on Abbas should be reduced

Decision

The Court of Criminal Appeal found error established in the sentencing of all three applicants. The central error was the sentencing judge's failure to engage with specific submissions advanced on behalf of Ahmad and Doughan, particularly regarding their prospects of rehabilitation and, in Doughan's case, whether an ICO was an appropriate disposition. The obligation to provide adequate reasons requires a sentencing judge to address specific arguments put by the parties, and that obligation had not been met.

The Court also considered the effect of two distinct periods of delay: approximately three years elapsed between the date of arrest and the sentence hearing, and a further nine months passed between the conclusion of the hearing and the delivery of sentence. The latter delay was attributable to the impact of COVID-19 on District Court listing arrangements. Both periods were relevant to the sentencing exercise.

On the question of objective seriousness, the Court acknowledged the substantial amounts of excise duty involved and the need for general deterrence in offences of this kind. Parity between co-offenders was also a significant consideration in determining the appropriate sentences on resentence.

In Abbas's case, the Court granted leave to appeal but dismissed the appeal, accepting that no lesser sentence was warranted. In the cases of Ahmad and Doughan, the appeal was allowed, the original sentences were quashed, and reduced sentences were substituted.

Orders Made

Abbas Elzein:
- Leave to appeal granted
- Appeal dismissed

Ahmad Elzein:
- Leave to appeal granted
- Appeal allowed; District Court sentences quashed
- Resentenced to: 16 months (count 1), 20 months (count 2), and 24 months (count 3), with cascading commencement dates
- Total effective sentence: 2 years and 10 months commencing 26 August 2020
- To be released on 25 July 2022 on a good behaviour condition for 11 months (amended by court order of 26 April 2022)

Bilal Doughan:
- Leave to appeal granted
- Appeal allowed; District Court sentences quashed
- Resentenced to: 15 months (count 1) and 22 months (count 2), with cascading commencement dates
- Released on 25 December 2021 on a recognizance of $100 to be of good behaviour for 9 months

Key Takeaways

  • A sentencing judge must actively engage with specific submissions made by an offender, including submissions on rehabilitation prospects and the suitability of an alternative sentencing order such as an ICO. Failure to do so constitutes error that can ground a successful sentence appeal.
  • Where a defendant raises specific evidence or argument in support of a particular outcome, the sentencing judge's reasons must address that material. Generic reasons that pass over identified submissions without engagement are legally inadequate.
  • Delay in the finalisation of proceedings is a relevant sentencing consideration. The Court of Criminal Appeal treated two separate periods of delay differently: pre-hearing delay and the nine-month gap between hearing and judgment (caused by COVID-19 disruptions to court listings).
  • Parity between co-offenders required close attention in a case involving numerous participants sentenced across complex proceedings, reinforcing the principle that unjustifiable disparity between co-offenders can itself constitute appellable error.
  • In dismissing Abbas's appeal despite finding error in the overall sentencing exercise, the Court confirmed that not every identified error automatically produces a reduced sentence; the ultimate question remains whether a different sentence is warranted in law.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BABAD
- Criminal Code 1995 (Cth), ss 11.5, 11.2A, 135.4(3), 400.4
- Crimes Act 1914 (Cth), s 20(1)(b), ss 19AH, 19AC
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Mifsud v Campbell (1991) 21 NSWLR 725
- Pettitt v Dunkley [1971] 1 NSWLR 376
- Olbrich v The Queen (1999) 199 CLR 270
- R v Fangaloka [2019] NSWCCA 173
- Karout v R [2019] NSWCCA 253
- Aboud v R [2021] NSWCCA 77
- Mourtada v R [2021] NSWCCA 211
- Blanch v R [2019] NSWCCA 304
- R v Saleh [2015] NSWCCA 299
- R v Amati [2019] NSWCCA 193
- Lai v R [2021] NSWCCA 217