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Khalil v The Queen [2022] NSWCCA 36

The offender was sentenced following pleas of guilty to 1 count of aiding and abetting the possession of tobacco knowing the goods were imported with intent to defraud the revenue contrary to s 11.2(1) of the Commonwealth Criminal Code, and 1 count of conveying tobacco knowing that the goods were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). Original sentence imposed 2 years imprisonment. Offender appealed on the basis that the sentencing judge erred in finding the objective seriousness of offending fell midway between the mid-range and low range, that the sentence was manifestly excessive and that the sentencing judge failed to have regard to s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Nature and Circumstances: To characterise the offending based on the offender’s physical acts avoids the context of the offending, which suggests that the offender had a broader awareness, disposition and role than that of a mere courier of an envelope and a labourer shifting boxes with only basic awareness of the criminality of their acts. Conversations between the offender and co-offenders belied an appreciation that the offender was at least an equal of those who bore the responsibility of transferring the container-load of cigarettes from the supplier’s possession to that of the syndicate, and shared in the decision-making as to the time frame for that exercise. It was open to the sentencing judge to fix the objective seriousness midway between the mid-range and low range for offending of this type. The offender’s claim of minimal involvement in the offending is at odds with their interest in further supplies of cigarettes, which is apparent from the conversation captured at the time of the first offence and the offender’s sense of shared responsibility for the transfer of the shipping container’s contents when engaged in the second offence. Ground of manifest excess not made out.

Intensive Correction Order: Offender submitted to the sentencing judge that if, consistently with s 17A of the Crimes Act 1914 (Cth), no other sentence than imprisonment was appropriate, an Intensive Correction Order would be an available means by which that sentence could be served, having regard to the need for community protection and general deterrence. The threshold of s 17A being satisfied, the remarks should have disclosed the sentencing judge’s reasoning for rejecting the offender’s submission. The sentencing judge’s remarks on sentence do not do so, either expressly or inferentially, and accordingly the ground is made out. The offender did not submit that an ICO was appropriate on resentence.

Leave to appeal granted. Appeal allowed. Original sentence in respect of the second offence quashed. Offender re-sentenced to 22 months imprisonment, to be released on 1 March 2022 upon a recognizance release order.
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