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District Court 24 March 2021

R v Razali

[2021] NSWDC 167

Drugs

Citation: R v Razali [2021] NSWDC 167
Court: District Court of New South Wales
Date: 24 March 2021
Judge(s): M L Williams SC DCJ

Background

The offender, a 29-year-old man, pleaded guilty to one count of producing tobacco leaf of 500 kg or more, contrary to s 308-125 of the Taxation Administration Act 1953 (Cth). The offence carries a maximum penalty of ten years imprisonment. The offender was working at a rural property at Dalton, New South Wales, for approximately two weeks during May 2020, earning $170 per day.

Police discovered an extensive tobacco cultivation operation at the property. The Crown acknowledged that the offender, along with his co-offender Mr Mohammad Shahudin, was not a principal in the operation. The excise duty foregone on the tobacco found at the property was approximately $3.1 million.

The offender had no prior criminal record. He pleaded guilty at an early stage, attracting a 25% discount on sentence in accordance with Commonwealth sentencing principles. He had already served approximately six months and 19 days in pre-sentence custody at the time of sentencing.

  • What sentence was appropriate for a non-principal participant in a large-scale illicit tobacco cultivation operation?
  • Whether any factors differentiated this offender's position from that of his already-sentenced co-offender, particularly regarding the principle of parity.
  • What weight, if any, should be given to the offender's apparent lack of engagement with the Sentence Assessment process as evidence of insufficient remorse.

Decision

The court's primary consideration was the parity principle, which requires that co-offenders in materially similar positions receive comparable sentences absent meaningful distinguishing factors. The court found that the comprehensive sentencing analysis, including objective seriousness and applicable principles, had already been set out in the co-offender's remarks in R v Shahudin [2021] NSWDC 163, and it incorporated that reasoning by reference rather than restating it in full.

The Crown identified one potential point of distinction: the offender's apparent failure to engage with the Sentence Assessment process, which the Crown argued reflected an absence of remorse. The court acknowledged this submission but did not treat it as a significant distinguishing factor.

More importantly, the court noted that this offender had served more than six months in pre-sentence custody, compared to approximately three months served by the co-offender. That additional time already served was treated as a meaningful factor weighing against imposing a more onerous outcome. Taking all matters into account, the court concluded that parity required the same sentencing outcome as was imposed on the co-offender.

Orders Made

  • The offender was convicted of the offence.
  • Pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), the court ordered the conditional release of the offender on the following conditions:
  • The offender enters into a recognisance in the sum of $100.
  • The offender is to be of good behaviour for a period of 12 months.

Key Takeaways

  • The parity principle in Commonwealth sentencing requires comparable outcomes for co-offenders in materially similar positions, absent meaningful distinguishing factors.
  • Where a co-offender has already been sentenced, the court will closely examine any asserted points of difference before departing from the sentence already imposed.
  • An offender's failure to engage with the Sentence Assessment process may be raised by the Crown as evidence of insufficient remorse, but the District Court here did not treat this factor as decisive in the parity analysis.
  • Significant additional pre-sentence custody, relative to a co-offender, can itself be a factor weighing against imposing a more burdensome sentence outcome.
  • A conditional release order under s 20(1)(a) of the Crimes Act 1914 (Cth) remained available even in a matter involving a large-scale illicit tobacco operation with excise liability of approximately $3.1 million, where the offender was a non-principal participant with no prior record and an early guilty plea.

Legislation and Cases Referenced

Legislation:
- Taxation Administration Act 1953 (Cth), s 308-125
- Crimes Act 1914 (Cth), s 20(1)(a)

Cases:
- R v Shahudin [2021] NSWDC 163