Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sowaid v R [2011] NSWCCA 177 Hearing dates: 28 July 2011 Decision date: 08 August 2011 Before: Basten JA at 1, Simpson J at 2, Garling J at 49 Decision: 1. Grants the applicant an extension of time within which to seek leave to appeal against her sentence. 2. Grants leave to appeal. 3. Dismiss the appeal. Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - verdict following jury trial - two counts doing an act with intention of dishonestly causing a loss to a Commonwealth entity - importation of tobacco - false declarations made to avoid customs duty payable - offences premeditated and committed for financial gain - family hardship - exceptional circumstances not established - no error in assessment of objective gravity - application for extension of time allowed - leave granted - appeal dismissed Legislation Cited: Crimes Act 1914 Criminal Code Cases Cited: Markovic v R; Pantelic v R [2010] VSCA 105 Mokhaiver v R [2011] NSWCCA 10 R v Luong [2000] NSW CCA 139 R v Tiki (CCA, NSW, 24 August 1994, unreported) R v Togias [2001] NSWCCA 522; 128 Crim R 23 Category: Principal judgment Parties: Nada Sowaid (Applicant) Regina (Respondent) Representation: Counsel Hament Dhanji SC (Applicant) Neil Adams (Crown) Solicitor Warren F Ball & Co (Applicant) Commonwealth DPP (Respondent) File Number(s): 2009/15207; 2009/112220 Decision under appeal Citation: [2010] NSWDC 193 Date of Decision: 2010-09-03 00:00:00 Before: King DCJ File Number(s): 2009/15207; 2009/112220 Judgment 1BASTEN JA : This matter was heard on 28 July 2011. The applicant required an extension of time within which to file her application for leave to appeal against sentence. At the completion of the hearing, the Court made orders in the terms set out by Simpson J at [3] below. I agree with her Honour's reasons. 2SIMPSON J : The applicant sought an extension of time in which to file an application for leave to appeal against the severity of sentences imposed upon her in the District Court, following her conviction, after jury trial, of two counts of doing an act with the intention of dishonestly causing a loss to a Commonwealth entity. By s 135.1(3) of the Criminal Code each offence exposed the applicant to a maximum penalty of imprisonment for five years. 3At the conclusion of the hearing of the application on 28 July 2011, the court made the following orders: 1. Grants the applicant an extension of time within which to seek leave to appeal against her sentence. 2. Grants leave to appeal. 3. Dismiss the appeal. 4. The Court reserves it reasons. 4What follows are my reasons for joining in those orders. 5On 3 September 2010, King DCJ sentenced the applicant to two terms of imprisonment of 2 years and 6 months, specifying that the first was to commence on 3 September 2010, the second on 3 March 2011. The aggregate sentence was therefore of 3 years. His Honour directed that the applicant be released on 2 July 2012, after serving 1 year and 10 months, on certain conditions (giving security of $5,000, and entering into a recognizance to be of good behaviour). The facts 6As part of the sentencing process following the applicant's conviction, King DCJ stated the facts he found to have been proved in the trial, consistent with the jury's verdict. The facts found are not in issue. Both offences were committed between 20 October 2008 and 22 January 2009 in Sydney. 7The applicant was the sole director and shareholder of a company called Haz Management Pty Limited, the business of which was to import and distribute molasses tobacco and charcoal. These were substances used in water pipes (hookahs) for smoking. The applicant and her husband also had an interest in a cafe in Auburn, where hookahs were used by customers. The applicant supplied molasses tobacco for the their use. She also proposed to supply, by wholesale, to other retailers. 8In the period covered by the charges, the applicant imported from Dubai two containers containing both molasses tobacco and charcoal. Customs duty is payable to the Australia Customs and Border Protection Service ("ACBPS") on molasses tobacco. ACBPS is a Commonwealth entity. No duty is payable on charcoal. 9The applicant falsely declared to the ACBPS that the containers contained only charcoal, and did not declare the molasses tobacco content. Each container in fact held, besides a quantity of charcoal, 9,000 kilograms of molasses tobacco, concealed between layers of charcoal. The customs duty payable on that quantity was $2.95 million. The total loss of customs duty to ACBPS was $5,960,034.76. 10Prior to the importation the applicant dealt with the Dubai firm from whom she purchased the goods. She gave instructions to that firm concerning labelling and health warnings necessary to be included on the packaging. 11The applicant was the contact person representing Haz Management in the importation, and the liaison with the ACBPS. She took a number of steps in the process of the importation. In respect of each shipment, she created a false document, a "manufacturers declaration", stating (falsely) that each shipment contained only charcoal. She lodged the false document with the Australian Quarantine and Inspection Service ("AQIS") and, using the document, applied for an import permit. She liaised with a customs clearance agency and AQIS for delivery of the container. The applicant's husband took delivery of the content of the containers. The applicant intended to use the molasses tobacco in the cafe business, for sale to customers, and by wholesale to others. 12Although the applicant gave evidence in the trial (which was plainly rejected by the jury, and largely rejected by the trial judge) she did not give evidence in the sentencing proceedings. The trial judge was satisfied that she was aware that duty was payable on the importation of molasses tobacco. That finding of fact is not in issue. She had given evidence to that effect in the trial. She was also aware, at least in September 2008, that a significant increase in the rate at which duty was payable had come into effect from 24 June 2008. The applicant's personal circumstances 13Before the court were a pre-sentence report, two medical reports concerning the applicant's (then) three year old son, dated November and December 2009, a number of character references, and an accountant's report showing the applicant's taxable income for the 2009-10 financial year was expected to be $30,780. 14The applicant was born in May 1977 and was 30 and 31 years of age during the offending period. She has no prior criminal record. She has six siblings to whom she is close. Her mother and sister receive support from her. She married her husband in 1995, and they have three children, ranging in age (at date of sentencing) from 13 to three years of age. She and her husband have operated the cafe to which I have referred above for many years, and this is their principal source of income. She is reported to have told the author of the pre-sentence report that she had little to do with Haz Management, and did not know of its activities. This history must be treated with scepticism, given the findings of fact made by King DCJ. 15The author of the pre-sentence report considered the applicant to be: " ... a loyal wife, mother and extended family member", whose focus in life appears to be her children and cafe business to the exclusion of any other enterprise. 16The medical evidence concerning the applicant's three year old son indicates that he has suffered from a condition called immune thrombocytopenic purpura ("ITP"). The reports suggest only modest cause for concern. The disorder is apparently one that causes bleeding and bruising, but is usually self-limiting, with spontaneous resolution within six months. By the time of the December report, the condition had indeed resolved. At that time there was small (1-2%) chance of recurrence, with the likelihood of spontaneous resolution again. These reports go no way towards providing a basis for moderating the sentence imposed. 17The references spoke unanimously of a loving, hard-working woman, who is a protective mother. They are consistent with character evidence called in the trial. The remarks on sentence 18As I have mentioned above, King DCJ made the necessary factual findings. These are not contested. Under the heading "Seriousness of the offences and role", his Honour said: 27. Objectively, the offences are each a very serious instance of offences contrary to s 135.1(3) of the Code as each involved a very substantial amount of duty, that is, more than $2.95 million. 28. The amount involved is not the only factor to be considered in establishing the seriousness of each offence. The seriousness may have been further elevated by any increase in the amount of intended loss, but the amounts actually involved are already very substantial. 29. ... Had the importation not been detected the tobacco could have been distributed at a price reflecting the costs and the duty, although unpaid, or at an unfair advantage to other competitors by reducing the price to reflect in part that the duty had not been paid. In either event the financial advantage to be obtained would have been very substantial. 30. The offender's motive for the offence could only have been pure financial greed. 31. The offender could not have had a more significant role in the commission of the offences ... " 19His Honour considered the medical reports concerning the applicant's son and said: 42. Hardship to the family or dependants of a person being sentenced should only reduce the sentence being imposed in circumstances where they are extreme and go beyond the sort of hardship that occurs when an offender is imprisoned in the ordinary course. There is no evidence to establish that the personal circumstances of the offender or her family are exceptional such as to render a custodial sentence inappropriate, if a custodial sentence is otherwise appropriate. A custodial sentence would of necessity impact on the family but such an impact would not be outside the range of the impact to be normally expected. 20He referred then the character evidence in the trial, and to the references. Of these he said: 44. ... They confirm that the offender is well regarded in the community. The value of the references is partly diminished in that, in general, they do not indicate that the offender has acknowledged guilt rather than informed the referees that she has been convicted. 21He accepted that the applicant had no prior convictions and is a person of prior good character. 22He found that the offences were premeditated and engaged in over a period of months during which they were planned and carried out by a series of acts to achieve the anticipated end result. 23He rejected (as irrelevant) a submission that the applicant had lost money invested in the purchase of the molasses tobacco. That is not the subject of challenge. It is plainly correct. He then determined that full time custodial sentences were appropriate, and gave the following reasons: "75. ... 1) The offences are of a serious nature, involving the importation of a total of 18,734 kilograms of molasses tobacco falsely declared as 'charcoal' in two separate shipments to avoid payment of duty in total of $5.96 million; 2) General deterrence is also of particular importance in view of the serious nature of the offence, and the difficulty of detection without very high levels of individual scrutiny of container imports; 3) The importation of tobacco and tobacco products is required to be regulated and controlled by the ACBPS in the public interest; 4) The offender, by committing the two offences, deliberately sought to subvert that control in a calculated and covert manner; 5) The offender's motive for the offences was financial gain; and that, 6) The offender's moral culpability is very high." 24He concluded that wholly concurrent sentences would, in all the circumstances, be inappropriate, and imposed two identical sentences with a modest (6 months) accumulation. The grounds of the application 25The grounds of the application are pleaded as follows: "1. The learned sentencing judge erred by overstating the objective gravity of the offence. 2. The learned sentencing judge erred in failing to have proper regard to the personal circumstances of the appellant and the impact of imprisonment on her and her family." Ground 1: objective gravity 26Under ground 1, an attack was made on his Honour's observation, at [29] to the effect that, had the importation succeeded, the applicant would have stood to gain financially. This was because she could have sold the tobacco at the normal market price, even though the cost to her of the importation did not include the very substantial duty that ought to have been paid (thus enhancing her profit margin) or because she could have sold it at a reduced price, producing to her a competitive advantage over honest importers who had paid the appropriate duty. 27The submission made on behalf of the applicant was that: "This finding fails to acknowledge the very significant change in the amount of duty payable in respect of molasses tobacco." 28The point is obscure. The point sought to be made, as stated in written submissions, was that the applicant "could equally be seen" as supplying this tobacco in competition with other importers or distributors who had imported prior to the significant increase in duty, in which case she would, by reason of the increase, have been at a competitive disadvantage had she paid the full duty. Seen in that light, so the argument ran, the applicant's criminality could be more properly seen as an attempt to remain competitive against wholesalers or retailers of molasses tobacco imported prior to the increase. 29The argument is untenable. Whenever a change in duty is made, whether by increase or decrease, there will be some who, by good fortune or good management (if the changes have, unusually, been signalled) reap a short term advantage over others whose timing is less impeccable. Of course, any importer who succeeds in completing an importation before a duty increase comes into effect will have a brief, short term, advantage over those who import subsequently. The true comparators are the competitors who import under the same duty regime, not those who import under different duty regimes. 30I observe in passing, that the argument is, in any event, purely speculative. The applicant did not give any evidence to suggest that her motivation had been to restore herself to a position in which she would have been prior to the duty increase; her defence at the trial was that she was unaware of the molasses tobacco in the shipments. 31I would reject this argument. 32In any event, the observation by his Honour was not intended as an independent aspect of sentencing, or as an indicator of itself, of objective gravity: it was a precursor to a conclusion (relevant and thoroughly warranted) that the applicant's motive was purely financial greed. Even if (contrary to the view I have expressed above) the applicant was merely attempting to regain a competitive edge, her motivation was financial. The finding would not make any difference to that conclusion, nor to the objective seriousness of the offence. 33The objective gravity was determined by a number of matters, including the amount of revenue put at risk (which was, it was conceded, very large), the role played by the applicant (which his Honour found to have been as the principal), and the applicant's motivation (financial). 34In my opinion his Honour was correct in his assessment of objective gravity. I rejected this ground of the application. Ground 2: Personal circumstances 35The complaint made under this ground is that the sentencing judge gave inadequate regard to the applicant's personal circumstances and the impact of imprisonment upon her and her family. 36The first observation to make is that there was no evidence whatever as to what effect imprisonment might have upon her or upon any member of her family. 37The sentencing judge recounted, at some length, the applicant's personal circumstances. It is apparent that she is a devoted mother to her three children. But there is no evidence of any impact upon her, or her children that would be thought to arise as a result of her incarceration. 38The matters which a sentencing court is required to take into account when sentencing for Commonwealth offences are set out in s16A of the Crimes Act 1914. By s 16A(2)(p), the court is required to take into account: "The probable effect that any sentence or order under consideration would have on any of the person's family or dependents". 39In R v Togias [2001] NSWCCA 522; 128 Crim R 23, Spigelman CJ held that common law principles apply to the interpretation of this sub-paragraph. If hardship to a child is to be given substantial weight, it must be classified as "exceptional". 40It was accepted by senior counsel for the applicant that no error could be attributed to the sentencing judge in his finding that any hardship to the applicant's family would not come within that classification. However, it was submitted: "Quite apart from the effect of the applicant's imprisonment on members of her family, however, the applicant's imprisonment was likely to be more burdensome as a consequence of her obvious distress at being absent from her family, unable to assist with their care, or alleviate the distress resulting from her absence. This was a matter that was entitled to some consideration ...". 41A number of authorities were cited for that proposition: see Mokhaiver v R [2011] NSWCCA 10 at [31]; Markovic v R ; Pantelic v R [2010] VSCA 105 at [20]; R v Luong [2000] NSW CCA 139 at [19]; R v Tiki (CCA, NSW, 24 August 1994, unreported). 42In Markovic; Pantelic the Victorian Court of Appeal, constituted by a bench of five, concluded, as had Spigelman CJ in Togias, that the "exceptional circumstances" test continues to apply. The paragraph upon which the applicant placed reliance was a statement of general principle, to the effect that the impact on an offender of the distress caused to family members is a matter that may properly be taken into account as a mitigating factor. 43This was, as I have said, a statement of general principle; there is nothing in the paragraph, or in the judgment that would permit a reduction in sentence for this reason in an evidentiary vacuum as here exists. Indeed, in that case, the court rejected the exceptional circumstances ground. 44In Mokhaiver , in which this Court determined that "modest weight" would be given to the applicant's distress by reason of family circumstances, there was very strong evidence indeed concerning a medical condition suffered by a three year old daughter of the applicant. That evidence in no way compares with the limited evidence concerning the present applicant's son. 45It is obvious, in any case where a parent is sentenced, that some hardship will be occasioned to the family, and it would be normal to expect that this would be the occasion of some distress to the offender. I see no reason to think that King DCJ was not conscious of this in sentencing. Indeed, he mentioned it in the closing sentence of paragraph [42] (extracted above at [16*]). There is no reason he should have gone further and speculated that imprisonment was likely to be more burdensome upon her than any other parent. The evidence was simply not there. 46Nor was there any evidence that the applicant's incarceration would be more burdensome upon her than would incarceration of any parent of young children: there is simply no evidentiary foundation for the ground. 47I rejected this ground of the application. 48While I concluded that this was an appropriate case in which to extend time for filing the application, and for a grant of leave to appeal, it follows from what I have said above that I concluded that the appeal should be dismissed. For those reasons I joined in the orders set out above. 49GARLING J : On 28 July 2011, I joined in the orders which the Court made on that day. 50I did so, for the reasons expressed by Simpson J in her judgment, with which I entirely agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2011