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R v Medalian [2019] SASCFC 40

appeal against sentence — smuggling tobacco with intent to defraud the revenue offence contrary to s 233BABAD(1) of Customs Act 1901 (Cth) — offence related to 1,080 kilograms of molasses tobacco with approximate payable duty of $725,414.40 — original sentence imposed 1 year and 9 months’ imprisonment, with offender serving 9 months imprisonment on a home detention order before release on recognizance release order to be of good behaviour for 12 months — manifest inadequacy state sentencing practice — offender sentenced to 2 years’ imprisonment which sentencing judge reduced by “10% reduction and a bit of rounding down of the sentence” for guilty plea to 1 year and 9 months — since hearing of this appeal, Court handed down decision in R v Tran the Court held that sentencing judge not empowered to order that only part of sentence of imprisonment be served on a home detention order and that thereafter the prisoner be released on a recognizance release order to be of good behaviour — s 71 of Sentencing Act (SA) prescribes Court’s power to issue home detention order and s 71(1)(b) precludes making of home detention order where sentence is partially suspended — the corresponding Commonwealth sentencing disposition to a suspended sentence under s 96 of the Sentencing Act is a recognizance release order under s 20(1)(b) of the Crimes Act — recognizance release order regime is exhaustive and leaves no scope for any State sentencing options to be imposed in addition to a recognizance release order — home detention orders and recognizance release orders are each standalone sentencing options — resentence — objective seriousness — the following matters are relevant to resentence: offender’s role as principal organiser, sophistication and period of offending, quantity of tobacco imported and amount of duty evaded, whether loss of revenue has been repaid, whether offending involved other illegalities like use of false identities, whether involved in distribution and sale of tobacco products within Australia and extent to which offender gained financially from offending — use of molasses tobacco not common in Australia — sentence to reflect serious nature of offending — offender resentenced to 2 years’ imprisonment reduced by 10% on account of guilty plea, resulting in sentence of 1 year, 9 months and 19 days imprisonment — offender has “served” 9 months on home detention order and complied with strict conditions — order offender be immediately released on recognizance release order for good behaviour for remainder of term of sentence
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