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El Masri v The King [2023] VSCA 93

The offender was sentenced following a plea of guilty to 1 count of importing tobacco products with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth). Original sentence imposed 3 years imprisonment, to be released after 18 months on recognizance of $2,000 to be of good behaviour for 18 months. Offender appealed on the grounds that the sentencing judge erred by failing to take into account the probable effect that a sentence under consideration would have on the offender’s family or dependants, by failing to find that the offender had excellent prospects of rehabilitation, and that the sentence was manifestly excessive.

Family and Dependants: Offender’s imprisonment, and the resulting absence of their financial support as well as the care they gave to family members, is placing a burden on their family, especially their partner. These implications do not weigh heavily in the sentencing calculus. The hardship described, if accepted at face value, while no doubt distressing to family members, is relatively minor. Various forms of hardship are asserted, but only thinly substantiated by the evidence. While ‘exceptional’ hardship was not required to be established, taking into account the family hardship in this case does not appreciably change the balance in the sentencing synthesis.

Manifest Excess: It was open to the judge in the circumstances to exercise caution and assess offender’s prospects of rehabilitation as less than excellent, given the serious nature of the offending, the integral role played by offender in the offending, their preparedness to take a significant risk despite their family circumstances, and their ultimate motive for the offending, being monetary reward. The sentence overall and the pre-release period were within the range for the offending. The offending was serious example of conduct contrary to s 233BABAD of the Customs Act, and it was offending that that demanded that general deterrence be given considerable weight in the sentencing synthesis.

Leave to appeal refused.
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