R v AA (No 3) [2019] NSWSC 1892

Supreme Court New South Wales

Medium Neutral Citation: R v AA (No 3) [2019] NSWSC 1892 Hearing dates: 16, 23 December 2019 Date of orders: 24 December 2019 Decision date: 24 December 2019 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: (1) Convicted that, between about 19 March 2009 and about 1 April 2010, in Australia and elsewhere, the offender engaged in conduct that contravened a United Nations sanction enforcement law contrary to subs 27(1) of the Charter of the United Nations Act 1945 (Cth) the particulars of which include: (a) The United Nations sanction enforcement law contravened was the making of unauthorised sanctioned supplies, contrary to reg 10 of the Charter of the United Nations (Sanctions-Iran) Regulations 2008 (Cth); (b) The sanctioned supplies were the supplies, sales or transfers to HlCo Fze of export sanctioned goods, namely approximately 90 tonnes of export sanctioned nickel alloys, ordered by HICo Fze from Metalloy Pty Ltd pursuant to HICo purchase orders HlC/C.E/1078 and HIC/C.E/1079, as a direct or indirect result of which supplies, sales or transfers those goods were transferred to Bandar Abbas, Iran; and (c) This conduct occurred partly in Australia pursuant to s 15.1(1)(a)(i) and s 16.2 of the Criminal Code (Cth). (2) The offender is sentenced to a term of imprisonment of 2 years to commence on 24 December 2019 and expiring on 23 December 2021. The term of imprisonment is to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW). (3) This Intensive Correction Order is subject to the following standard conditions: (a) The offender is not to commit any offence while subject to this Intensive Correction Order; (b) The offender must submit to supervision by a Community Corrections Officer. (c) The relevant agency for the purposes of supervision is Hornsby Community Corrections District Office. (4) This Intensive Correction Order is subject to the following additional conditions: (i) The offender is to report to Hornsby Community Corrections Office for the purpose of implementing the foregoing, on or before 6 January 2020. (ii) The offender is to perform 18 hours of Community Service Work per month during the entirety of the duration of the Intensive Correction Order (being a total of 432 hours). (iii) Subject to the receipt of an appropriate assessment, the offender is to be released to home detention for the period of the Intensive Correction Order. (iv) The Court directs that Corrective Services assess the offender for home detention and provide the report within seven (7) days of its completion and by 3 February 2020. (5) The above conditions are entered by the Court whilst taking into account the offence notified under s 16BA, namely, that the offender gave false information to another person, reckless as to the risk that it will be given to a Commonwealth entity in connection with the administration of a United Nations sanction enforcement law. Catchwords: CRIME – SENTENCING – breach of United Nations sanctions against Iran rendered criminal by operation of Commonwealth legislation – discussion of culpability and subjective circumstances – offence was committed by Iranian citizen, domiciled in and resident of Iran at time of offence, who is now a permanent resident of Australia – effect on culpability and general deterrence – appropriateness of sentence other than full-time custody – Intensive Correction Order imposed; CRIME – SENTENCING PROCEDURE – effect of Barbaro – counsel entitled to put submissions that include opinion as to appropriate sentence, but not thereby imply "bounds" of judicial discretion Legislation Cited: Charter of the United Nations (Sanctions-Iran) (Export Sanctioned Goods) List Determination 2008 (Cth), Sch 1 Charter of the United Nations (Sanctions-Iran) Regulation 2008 (Cth), reg 10 Charter of the United Nations Act 1945 (Cth), ss 27(1), 28 Crimes Act 1914 (Cth), ss s 16A(2)(h), 16BA, s 17A(1) Crimes (Administration of Sentence) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW) Evidence Act 1995 (NSW), s 4 Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 GAS v R (2004) 217 CLR 198; [2004] HCA 22 House v R (1936) 55 CLR 499; [1936] HCA 40 Hunter Quarries Pty Limited v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60; Kutchera v R [2007] NSWCCA 121 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Regina (Crown) AA (a pseudonym) (Offender) Representation: Counsel: M McHugh SC / A McGrath (Crown) S Buchen SC / J Roy (Offender)