Citation: R v Shahudin [2021] NSWDC 163
Court: District Court of New South Wales
Date: 15 March 2021
Judge(s): M L Williams SC DCJ
Background
The offender, a Malaysian national, came to Australia with his girlfriend in early 2019 and worked in various roles before COVID-19 reduced his employment opportunities. Through a contact on a WhatsApp forum, he was offered casual work that turned out to involve a tobacco plantation on a rural property near Dalton, New South Wales.
Federal officers executed a search warrant at the property on 14 May 2020, discovering the offender alongside two co-offenders. Officers found kilns, irrigation equipment, and other machinery associated with tobacco production, as well as over 2,000 kilograms of tobacco leaf. At the current excise rate of $1,309 per kilogram of dried tobacco, the potential excise revenue forgone was approximately $3.1 million.
The offender was charged with producing tobacco leaf of 500 kilograms or above, contrary to s 308-125 of the Taxation Administration Act 1953 (Cth), an offence carrying a maximum penalty of 10 years' imprisonment. He pleaded guilty and was sentenced in March 2021.
Legal Issues
- What was the appropriate sentence for a federal offender convicted of large-scale illicit tobacco production, having regard to objective seriousness, general deterrence, and the offender's personal circumstances?
- What weight should be given to mitigating factors including a guilty plea, remorse, good character, limited culpability, and time already served in pre-sentence custody?
- Whether a non-custodial outcome was within the sound range of sentencing discretion for this offender's level of involvement.
Decision
His Honour accepted that the offender genuinely did not know tobacco growing was an illegal enterprise. He was a smoker who had purchased tobacco commercially and assumed it was legally grown. He was recruited at a low level, transported to and from the worksite, paid in cash, and performed manual labour such as cutting plants and moving crates. The plantation was already well advanced before he arrived, and he had no supervisory or organisational role.
The court found the offender to be a diligent and industrious young man who had been unwittingly drawn into illegal work through poor English and unfamiliarity with Australian law and customs. There was no criminal history, a favourable Sentencing Assessment Report, and strong evidence of genuine remorse. The offender had spent almost four months in pre-sentence custody at Parklea Correctional Centre.
Williams SC DCJ balanced the need for general deterrence, denunciation, and the significant excise duty at stake against the offender's low-level role, personal circumstances, and strong mitigating factors. The Crown referred to R v Kopa & Istogu (2004) 145 A Crim R 287, but acknowledged that both offenders in that matter had higher culpability and were nonetheless dealt with by non-custodial sentences. The Crown also conceded that a non-custodial outcome was within a sound discretionary range.
Taking into account the time already served in custody, his Honour concluded that a further term of imprisonment was not appropriate. The offender was convicted and released on a conditional release order without the court passing a further sentence, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth).
Orders Made
- The offender was convicted of the offence.
- Pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), the offender was conditionally released without a further sentence being passed.
- The offender entered into a recognisance in the sum of $100.
- The offender was to be of good behaviour for 12 months.
Key Takeaways
- A low-level, unknowing participant in an illicit tobacco operation may receive a non-custodial outcome under s 20(1)(a) of the Crimes Act 1914 (Cth) where significant mitigating factors, including genuine ignorance of the illegality, are established.
- Under s 20(1)(a) of the Crimes Act 1914 (Cth), a federal court may convict an offender and release them on a conditional release order without passing a custodial sentence, even for offences carrying a maximum of 10 years' imprisonment.
- Time spent in pre-sentence custody weighed materially in the sentencing exercise and supported a non-custodial outcome in the specific circumstances of this case.
- The potential consequences of deportation for a foreign national offender are not a factor that can be taken into account in the federal sentencing process, as the court confirmed here.
- Where comparable authorities involve offenders with greater culpability and yet attracted non-custodial sentences, that outcome may inform the appropriate sentencing range for a lower-culpability offender charged with the same offence.
Legislation and Cases Referenced
Legislation
- Taxation Administration Act 1953 (Cth), s 308-125
- Crimes Act 1914 (Cth), Part 1B; s 20(1)(a)
Cases
- R v Kopa & Istogu (2004) 145 A Crim R 287