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Assi v The Queen; Jomaa v The Queen [2021] NSWCCA 181

Co-offenders were sentenced following pleas of guilty to 1 count of conspiring with others with the intention of dishonestly causing a loss to a third party, the Australian Border Force, contrary to s 135.4(3) of the Commonwealth Criminal Code. Original sentence imposed on Assi 24 months and 3 weeks imprisonment to be released on recognisance release order after 15 months and 3 weeks. Original sentence imposed on Jomaa 26 months imprisonment to be released on recognisance release order after 17 months. Both offenders appealed on the basis that they had a justifiable sense of grievance regarding the sentence imposed. Jomaa also appealed on the basis that the sentencing judge erroneously took s 16A(2)(fa)(ii) into account as an aggravating factor.

Parity: Assi sought to deploy their entrapment as something that distinguished their circumstances from that of Jomaa. However the offenders were not entrapped by the UCO into doing something they would not otherwise do, but did find themselves participating in a conspiracy to import a larger amount than they might otherwise have by reason of the UCO’s conduct. That finding of the sentencing judge was equally applicable to both offenders with the consequence that it adds nothing to any differentiation. Sentencing judge correctly recognised the greater objective seriousness of Jomaa’s participation in the Dubai conspiracy by reason of status as licensed customs broker, was partially offset by Assi’s limited criminal record and an assessment that Jomaa’s 16BA matters were slightly less serious than Assi’s 16BA matters.

Failure to Comply: The sentencing judge found that by reason of Jomaa’s position as customs broker, the offender failed to comply with an obligation under a law of the Commonwealth. This reveals error. Nothing about Jomaa’s status as a licensed customs broker meant that conduct involved a failure to comply with an obligation under a law about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence. No lesser sentence warranted at law.

Leave to appeal granted. Appeal dismissed.
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