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Masri v R [2023] NSWCCA 266

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of possessing goods, being tobacco  products, with the knowledge that the goods were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act 1901 and 1 count of importing goods, being tobacco products, with intent to defraud the revenue contrary to s 233BABAD(1) of the Customs Act 1901. Offending related to 6,248 kilograms of molasses tobacco and 9.5 million cigarettes. Offender sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months. The offender appealed on the grounds that the sentencing judge erred in failing to conclude that offender’s moral culpability was reduced due to the involvement of the authorities in the importation process and that the sentencing judge erred in their consideration of the duty and GST evaded as a result of the offence.

Moral Culpability: During the period of offending, undercover operatives met with offender and co-offenders and participated in the acts and events constituting the offences. Australian authorities had carried out all the physical steps required to effect the importation. Offender submitted that the sentencing judge erred in finding that offender’s willingness to engage in the offence meant that their moral culpability was not reduced by the conduct of authorities. Given that tobacco importation is not itself prohibited, the core of the offence lay in the intent to defraud the revenue. That intent was held by offender, not the authorities. In all the circumstances it was open to the sentencing judge to not be satisfied that the conduct of the authorities had led offender to commit the importation. Ground 1 not upheld.

Quantum of Revenue Defrauded: The sentencing judge adopted the figures for unpaid duty and GST that had been provided in the prosecutor’s written submissions, rather than the figures in the Agreed Statement of Facts. The difference was not material to the gravity of offending in either count. It was not accurate to speak of offender as having ‘participated in the evasion’ of that component of the unpaid revenue that related to the molasses tobacco or to speak of that component having not been ‘repaid’. The evasion of the customs duty and GST on the molasses tobacco was effected by the person who imported the product, not offender. However, the quantum payable on the molasses tobacco and that which had not been repaid was a relevant measure of the magnitude and gravity of offender’s possession. Offender submitted that, as the cigarettes were under the authority of Australian authorities throughout, they were never destined to reach customers. By offender’s plea, offender was the importer and the owner. By arranging to obtain possession without having made an import declaration, offender sought to evade their obligation to pay the duty and GST at the point of entry for home consumption. However, the sentencing judge regarded the offending as aggravated by a consideration that it cost the Commonwealth a loss of revenue of $14,736,300. That was not an accurate construction. Leave is granted with respect to this ground. However, no lesser sentence is warranted.

Orders: Leave to appeal granted. Appeal dismissed.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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