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Merhi v The Queen [2019] NSWCCA 322

appeal against sentence — bribery of a public official offence contrary to s 141.1(1) of Commonwealth Criminal Code, aid and abet the importation of tobacco products knowing of an intent to defraud the revenue offence contrary to s 11.2(1) of Commonwealth Criminal Code and s 233BABAD(1) of Customs Act 1901 (Cth), dealing in proceeds of a crime greater than $100,000 offence contrary to s 400.4(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ and 6 months imprisonment with a 3 year and 3 month non-parole period — nature and circumstance of the offence — s 16A(2)(a) — no principle or precedent which limits finding of breach of trust to offences which happen during period when offender is employed in position of trust or authority — clear offender used information and knowledge gained whilst employed at Australian Border Force as part of process in working with co-offender as well as associates of syndicate to ensure illegal importation went undetected — important that not only current employees but also former employees can be trusted with information gained through their employment — bearing in mind ongoing obligations of confidentiality ordinarily imposed upon persons in position of authority and trust even after employment ceases, it might be surprising if misuse of such confidential information for criminal purposes after cessation of employment did not involve abuse of trust such as to constitute an aggravating factor — character — s 16A(2)(m) — sentencing judge took into account general deterrence as significant factor and had regard to offender’s breach of trust as aggravating factor — in then reducing significance of prior good character based on the same factor, sentencing judge may have erred in considering that a mitigating factor, which would otherwise be available under s 16A(2)(m) should be given little weight — in some circumstances good character should be given less weight, particularly if offender used good character to gain position of trust so as to enable offence to be committed — different situation arises where offender has not obtained position of trust with specific purpose of committing offence and demonstrated prior good character over long period of time whilst so employed — to not have regard to offender’s prior good character may be viewed as form of double-counting — re-sentence — guilty plea — s 16A(2)(g) — offender entitled to 25% discount for utilitarian value of plea of guilty — hardship to the offender — likelihood that experience in prison will be more onerous because of their former employment — specific deterrence general deterrence — specific deterrence of less significance in the context of offending than general deterrence — sentence imposed 4 years’ and 6 months imprisonment with a 2 year and 6 month non-parole period
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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