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He v The Queen [2022] NSWCCA 205

The offender was sentenced following a plea of guilty to 1 count of possessing tobacco products knowing they were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). Original sentence imposed 2 years and 11 months imprisonment, to be released on recognisance on 12 October 2023 upon giving security in the sum of $1,000. Offender appealed on the grounds that the sentencing judge erred in not considering principles of parity with respect to a known co-offender, Bishan Su, and erred in not considering the offender’s character and antecedents.

Parity: Proceedings relating to Ms Su had considerable prominence in the sentence hearing against the offender. Sentencing judge made no reference in their remarks on sentence to it nor was any consideration apparently given to the sentence imposed upon Ms Su and its relevance. Whatever the basis of the failure, it constitutes error. While the offender and Ms Su were undoubtedly co-offenders in a shared enterprise, the charge each faced, their respective roles and their individual criminality and moral culpability were dissimilar. It is of no small significance that Ms Su was charged with a less serious offence. The offender’s charge related to 691.33 kilograms of loose leaf tobacco and over 1.8 million individual cigarettes ($2,272,192.36 of revenue defrauded), whereas Ms Su’s charge related to much lesser amounts of $130.31 kilograms of loose leaf tobacco and 139,760 individual cigarettes ($256,369.64 of revenue defrauded). The subjective cases of the co-offenders also differed, with Ms Su presenting a more compelling case than the offender because of their lack of criminal history, good prospects of rehabilitation and that Ms Su were recruited because they had accrued a substantial gambling debt to the offender. It cannot be concluded that the sentences imposed are unjustifiably disparate.

Antecedents: There is nothing in the remarks on sentence, or He (No 1), to make clear that the sentencing judge gave attention to the offender’s relatively limited criminal history and the effect it might have on sentence. To that extent, error has been established, there being a possibility of the error having affected the exercise of the sentencing discretion. Whilst the offender’s criminal record was limited, the fact that the two more significant convictions against him were both dishonesty offences was of direct relevance. Offender’s conduct reflected ongoing, if sporadic, dishonesty, and there was little basis for them to be accorded any mitigation because of it. Rather, the commission of the present offence suggested the offender had not learned from their earlier experiences of the criminal justice system and arguably elevated the need for a sentence importing a greater degree of specific deterrence to be imposed. It is unlikely that the sentencing judge’s criminal history operated to the offender’s disadvantage. There is nothing in the penalty imposed that suggests the offender was more harshly dealt with than they would have been had their criminal history been fully considered.

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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