Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 Hearing dates: 15 September 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Before: Bell P at [1] Walton J at [2] Bellew J at [3] Decision: Abbas Elzein (1) Leave to appeal against sentence granted. (2) Appeal dismissed. Ahmad Elzein (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof, Ahmad Elzein is sentenced as follows: (i) in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 1), 16 months' imprisonment commencing on 26 August 2020 and expiring on 25 December 2021; (ii) in respect of the offence of possessing goods, being tobacco products, knowing that the goods were imported, with intent to defraud the revenue (referred to in this judgment as Ahmad count 2), 20 months' imprisonment commencing on 26 November 2020 and expiring on 25 July 2022; (iii) in respect of the offence of conspiracy to dishonestly cause a loss to the Australian Border Force (referred to this judgment as Ahmad count 3), 24 months' imprisonment commencing on 26 June 2021 and expiring on 25 June 2023. (5) The total effective sentence is one of 2 years and 10 months imprisonment commencing on 26 August 2020 and expiring on 25 June 2023. (6) Pursuant to ss 19AH(1)(b) and 19AC(1) of the Crimes Act 1914 (Cth), the Court directs that the respondent Ahmad Elzein be released on 25 July 2022, without giving security, on the condition that he will be of good behaviour for a period of 11 months to date from 25 July 2022. Bilal Doughan (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof Bilal Doughan is sentenced as follows: (i) in respect of jointly committing an offence by entering into an agreement to import tobacco products with intent to defraud the revenue (referred to in this judgment as Doughan count 1), 15 months' imprisonment commencing on 26 August 2020 and expiring on 25 November 2021; (ii) in respect of jointly committing an offence by entering into an agreement to possess goods, namely tobacco products, knowing that the goods were imported, within intent to defraud the revenue (referred to in this judgment as Doughan count 2), 22 months' imprisonment commencing on 26 November 2020 and expiring on 25 September 2022; (iii) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released on 25 December 2021, upon giving security in the sum of $100.00 without surety, on a recognizance to be of good behaviour for a period of 9 months. Catchwords: CRIMINAL LAW – Sentence – Appeal – Where the three applicants were involved with a number of other persons in offending involving evading excise duty payable on tobacco products – Complicated and difficult sentence proceedings involving complex facts, numerous offenders and a multiplicity of different charges – Where two of the applicants advanced specific submissions as to their respective prospects of rehabilitation – Where third applicant advanced specific submissions as to the disposition of the matters by way of an Intensive Correction Order – Where none of those submissions were considered by the sentencing judge – Necessity to engage with specific submissions made and provide adequate reasons – Error established – Applicants resentenced – Objective seriousness of the offending – Substantial amounts of duty involved – Need for general deterrence – Effects of lengthy delay in the finalisation of proceedings – 3 year delay between date of arrest and sentence hearing – 9 month delay between sentence hearing and passing of sentence – Latter period of delay brought about by the effects of the Covid-19 pandemic on listing arrangements in the District Court – Prospects of rehabilitation – Parity considerations Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth) Customs Act 1901 (Cth) Law Enforcement (Controlled Operations) Act 1997 (NSW) Cases Cited: Aboud v R [2021] NSWCCA 77 Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Blanch v R [2019] NSWCCA 304 FL v R [2020] NSWCCA 114 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Karout v R [2019] NSWCCA 253 Lai v R [2021] NSWCCA 217 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Mifsud v Campbell (1991) 21 NSWLR 725 Mourtada v R [2021] NSWCCA 211 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 Pettitt v Dunkley [1971] 1 NSWLR 376 Pickard v R [2011] SASCFC 134 Postiglione v The Queen (1987) 189 CLR 295; [1997] HCA 26 R v Amati [2019] NSWCCA 193 R v Delcaro (1989) 41 A Crim R 33 R v Fangaloka [2019] NSWCCA 173 R v Hawkins (1989) 45 A Crim R 430 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Saleh [2015] NSWCCA 299; (2015) 257 A Crim R 212 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33 Sharma v R [2017] NSWCCA 85 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stanford v R [2007] NSWCCA 73 Taylor v R [2020] NSWCCA 46 Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 Van Zwam v R [2017] NSWCCA 127 Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Abbas Elzein – Applicant Ahmad Elzein – Applicant Bilal Doughan – Applicant Regina – Respondent Representation: Counsel: Abbas Elzein – B Walker SC and A Djemal Ahmad Elzein – B Walker SC and A Djemal Bilal Doughan – P Lange Crown – D Jordan