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District Court 22 September 2023

R v Tertsis

[2023] NSWDC 442

Fraud & dishonesty
CRIME SENTENCE COMMONWEALTH OFFENCE

Citation: R v Tertsis [2023] NSWDC 442
Court: District Court of New South Wales
Date: 22 September 2023
Judge: Bourke SC DCJ

Background

The offender, a Greek citizen, arrived in Australia in November 2019 and became involved in a scheme to import tobacco products without paying the applicable customs duty. He acted alongside at least two other men, one of whom recruited him and another who sourced the cigarettes through overseas contacts. The operation involved shell companies, bank accounts held in the names of absent co-conspirators, and false documentation submitted to customs brokers.

Two shipping containers were intercepted by Australian Border Force. Together, they held approximately 16 million cigarettes. The customs duty evaded across both containers totalled $17,904,800. The offender was directly involved in preparing for the arrival of the containers, arranging storage facilities, making payments, and unpacking the first container when it was delivered.

The offender pleaded guilty to a single charge under the Customs Act (Cth) 1901 of importing tobacco with the intention of defrauding the Commonwealth of revenue.

  • What sentence was appropriate for a single offence of importing tobacco with intent to defraud the Commonwealth, having regard to the offender's role, culpability, personal circumstances, and plea of guilty?
  • What discount should be applied to reflect the utilitarian value of the guilty plea in a Commonwealth matter?
  • What non-parole period was appropriate, having regard to the offender's isolation from family while serving his sentence in Australia?

Decision

Bourke SC DCJ assessed the offender's moral culpability as "fairly high." While the offender did not appear to be the organiser of the enterprise, he exercised meaningful control over company accounts, arranged storage, communicated directly with logistics providers, and was present at the unpacking of the first container. The scale of the fraud, involving nearly $18 million in evaded duty, weighed heavily in the assessment.

The court applied a 25% discount to the sentence to reflect the utilitarian value of the guilty plea. The judge noted that no fixed percentage applies in Commonwealth sentencing matters, but considered 25% appropriate in the circumstances. The court also found that no penalty other than imprisonment was appropriate under section 17A of the Crimes Act 1914 (Cth).

The offender's personal circumstances were taken into account, including the fact that he had no known prior criminal history and was assessed as a low risk of reoffending, giving him reasonable prospects of rehabilitation. His isolation from family and support networks in Greece, which made custody more difficult, was taken into account specifically in setting the non-parole period.

Although the court acknowledged that deportation was likely following release, it noted that this was not a matter it was entitled to give weight to in the sentencing exercise.

Orders Made

  • Head sentence of three years and three months imprisonment, commencing 14 September 2022 and expiring 13 December 2025.
  • Non-parole period of 18 months, expiring 13 March 2024.
  • The offender was formally convicted of the offence.

Key Takeaways

  • A guilty plea in a Commonwealth sentencing matter does not attract a fixed statutory discount; the District Court here considered 25% appropriate on the facts, reflecting the utilitarian value of the plea.
  • The court assessed the offender's moral culpability as fairly high despite his not being the apparent organiser, given his direct and sustained operational involvement across both importations.
  • Under section 17A of the Crimes Act 1914 (Cth), a court must be satisfied that no penalty other than imprisonment is appropriate before imposing a custodial sentence for a Commonwealth offence; that threshold was met here.
  • Isolation from family and support networks while serving a sentence in Australia can be a relevant factor in fixing the non-parole period, even where it does not reduce the head sentence.
  • The likely deportation of a foreign national upon completing a sentence is not a matter a sentencing court is entitled to weigh when determining the appropriate penalty.

Legislation and Cases Referenced

Legislation:
- Customs Act (Cth) 1901, s 233BABAD(1)
- Crimes Act 1914 (Cth), ss 16A(2), 17A

Cases:
- R v Zhang [2017] SASCFC 5
- R v Saleh [2015] NSWCCA 299