R v Shahudin [2021] NSWDC 163

District Court New South Wales

Medium Neutral Citation: R v Shahudin [2021] NSWDC 163 Hearing dates: 15 March 2021 Date of orders: 15 March 2021 Decision date: 15 March 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Pursuant to s 20(1)(a) of the Crimes At 1914 (Cth) I order the conditional release of the offender, subject to the offender entering into a recognisance, self, in the sum of $100 and that the offender is to be of good behaviour for 12 months. Catchwords: SENTENCING — Federal offenders — Relevant considerations SENTENCING — Mitigating factors — Plea of guilty — Remorse — Good character — Unlikely to re-offend SENTENCING — Penalties — Recognisance SENTENCING — Relevant factors on sentence — Circumstances of offence — Co-offenders — Deterrence — General principles — Purposes of sentencing Legislation Cited: Crimes Act 1914 (Cth) Taxation Administration Act 1953 (Cth) Cases Cited: R v Kopa & Istogu (2004) 145 A Crim R 287 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Mohammad Shahudin (Offender) Representation: Ms I Thomas (Solicitor of for the Commonwealth Director of Public Prosecutions)

Mr P Townsend (Solicitor Advocate for the offender, Legal Aid NSW) File Number(s): 2020/144452

Judgment 1. Mohammad Shahudin is a Malay national who came to Australia with his girlfriend and worked for some time before the COVID19 pandemic restricted his employment opportunities. Somehow, he came to be offered a job through a person he described as an "agent" on a WhatsApp forum. The job involved the offender working on a tobacco plantation on a rural property near Dalton, which led to him being charged with an offence contrary to s 308‑125 of the Taxation Administration Act 1953 (Cth) of producing tobacco leaf of 500 kilograms or above which carries a maximum penalty of 10 years imprisonment. 2. Federal officers executed a search warrant at the farm on 14 May 2020. At the property they found the offender together with the co-offenders Ibrahim and Razali who are to be sentenced at a later date. 3. Officers located equipment to enable the production of a tobacco crop including kilns, irrigation equipment and other associated machinery. He made candid admissions in an interview after his arrest, saying that he arrived at the property on Monday. The "boss" took him there by car. He cleaned on Tuesday and on Wednesday he packed tobacco, which was grown on the farm. He was to be paid $170 a day in cash but he had not yet been paid and his friends got the same amount. He said he cut the tobacco plants with scissors and took them to the crates and then dragged the crates to the shed with a pulley. He had been to the property two or three times between the end of April and May. 4. There were two acres of plants but it was half full and he said he had cut maybe one acre. There were photographs of the plantation on his phone in the days leading up to the search warrant and the Crown acknowledges that his role seems to have been one of an essential worker but at a low level. 5. There was a total weight of more than 2,000 kilograms of tobacco leaf and at the current excise rate of $1,309 per kilo of dried tobacco the potential excise forgone on the tobacco was about $3.1 million. 6. He has no criminal record. There is a favourable Sentencing Assessment Report. He has given evidence affirming the truth of the history set out in the Sentencing Assessment Report and the Legal Aid Psychosocial Assessment Report. 7. In short, he and his girlfriend Olivia Laurent came to Australia in January 2019. They travelled and worked. He was born in the Perak State in Malaysia as the middle of three children. He comes from a stable family home. He studied at high school and had stable employment at various times in Malaysia. 8. I accept that he was unaware that tobacco growing was an illegal enterprise. He was a smoker himself and had purchased tobacco from shops and assumed it was legally grown. He was taken by three different cars from Leppington Station to the work site. His boss provided meals and accommodation and then he would be returned to Leppington Station at the end of the week. The plantation was already at an advanced stage when he arrived there. He said he worked there for three weeks until he got caught by police and it was at that time that he first realised there was something wrong with it. He said the boss did not get caught. 9. He spent almost four months in custody at Parklea Correctional Centre from 14 May until 10 September. He says that he is "very sorry that he had been doing an illegal activity and he is hoping to be able to graduate, gain skills and improve his English." 10. There is no history of substance abuse or criminality. He appeared to the reporter, and to me, to be a diligent and industrious young man who was unwittingly drawn into illegal work because of his poor English and unfamiliarity with Australian laws and customs. 11. I accept that he is very remorseful for his participation and although he expresses hopes to remain in the country to pursue employment and further study, I understand from Mr Townsend that he is on a criminal justice visa which may lead to him to being deported, but that of course, as the authorities demonstrate, is not a matter that I can take into account in the sentencing process. Since his release on bail pending sentence he has been working casually as a cleaner 12. What I must do under Part 1B of the Crimes Act 1914 (Cth) is to impose a sentence which is of a severity appropriate to all the circumstances of the offence, taking into account the objective seriousness of the matter, the need for general deterrence and denunciation, the significant quantity of excise potentially avoided had the scheme been successful, and the promised wages that he was to receive. I take into account his plea of guilty, his remorse and cooperation, and his prior good character. 13. In terms of supposedly comparable sentencing instances, the Crown points me to the matters of R v Kopa & Istogu (2004) 145 A Crim R 287which, as the Crown candidly acknowledged, both involved a higher level of culpability than this offender and those were both effectively dealt with by non-custodial sentences. 14. The Crown concedes that the sentencing options submitted by Mr Townsend are in a sound discretionary range although the Crown submits that the matter justifies a term of imprisonment to be dealt with in an appropriate fashion. 15. In my view the appropriate way to dispose of the matter is one which does not involve the imposition of a term of imprisonment bearing in mind the time that he has already spent in custody and I will release him on a conditional release order without passing sentence pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth). The orders that I make are: 1. The offender is convicted of the offence. 2. Pursuant to s 20(1)(a) Crimes Act 1914 (Cth), I order the conditional release of the offender, subject to the following conditions: 1. The offender enters into a recognisance, self, in the sum of $100. 2. The offender is to be of good behaviour for 12 months. 1. Under the Crimes Act 1914 (Cth) I have to ensure that he understands the sentence. Mr Interpreter, the sentence is, bearing in mind that he has spent more than three months in custody already, he is released on a good behaviour bond for a period of 12 months. 2. INTERPRETER: Okay. He understands, he said. 3. HIS HONOUR: Thank you, Mr Interpreter, for your assistance. 4. INTERPRETER: Thank you, your Honour. Note – These extempore remarks were revised without access to the court file.