IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
CR-19-00299
CR-18-02363
DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ABDALLAH ABDALLAH		
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JUDGE:	HIS HONOUR JUDGE WRAIGHT 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 April 2019	
DATE OF SENTENCE:	9 July 2019	
CASE MAY BE CITED AS:	DPP v Abdallah	
MEDIUM NEUTRAL CITATION:	[2019] VCC 1030		

REASONS FOR SENTENCE
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Subject:			 CRIMINAL LAW
Catchwords: 			 Plea of guilty - Intentionally possess tobacco leaf without a licence and permission - Procure another to move tobacco leaf without permission - Dishonestly cause a risk of a loss to the Commonwealth – cultivation of tobacco - 1110 kilograms of tobacco leaf seized - potential loss of revenue to the Commonwealth was substantial, in excess of $1 million - criminal conduct over a period of some 11 months - serious offending against the Commonwealth - general deterrence paramount sentencing consideration.
Legislation Cited:	Excise Act 1901 (Cth), Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth).
Cases Cited:	DPP (Cth) v Gregory [2011] VSCA 145; 34 VR 1.
Sentence:                    	Total Effective Sentence of 2 years 6 months imprisonment, to be released forthwith upon giving a recognisance in the amount of $2,000.00 and to be of good behaviour for a period of 4 years

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms E Dane	Commonwealth Director of Public Prosecutions	
			
For the Accused	Mr R van der Wiel QC	Stephen Andrianakis	

HIS HONOUR:

Introduction
1.	Abdallah Abdallah, you have pleaded guilty to an indictment containing three Commonwealth charges as follows:
•	Charge 1 – Intentionally possess tobacco leaf without a licence and permission, contrary to s 117C(1) of the Excise Act 1901 (Cth); which carries a maximum penalty of two years imprisonment;
•	Charge 2 – Procure another to move tobacco leaf without permission, contrary to contrary to s 11.3 of the Criminal Code (Cth) and subsection 117D(1) of the Excise Act 1901 (Cth), which carries a maximum penalty of two years imprisonment; and
•	Charge 3 – Dishonestly cause a risk of a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code (Cth), which carries a maximum penalty of 
five years imprisonment;
2.	You have also admitted your prior criminal record.

Circumstances of the offences
3.	A prosecution opening was tendered on the plea which may be summarised as follows:  
4.	In late January 2017, you operated a farm at 807 Pine Creek Road, in Givelda, Queensland. 
5.	You contracted freight contractor Peter James Landrigan and arranged for him to transport a van from the farm in Givelda to Melbourne.  Mr Landrigan agreed and attended the farm on 1 February 2017.  You drove a white Mercedes Sprinter Van onto the trailer attached to Mr Landrigan’s truck. 
6.	Prior to the arrival of Mr Landrigan, you had previously loaded 10 bales of material (later proven to be dried leaves of Tobacco) onto the van, having been in possession of that tobacco at the farm.  It is these facts that relate to Charge 1, unlawful possession of tobacco leaf.
7.	The van was completely closed, the cargo doors locked and the handles had been dismantled. 
8.	You indicated to Mr Landrigan that the van was loaded with farming machinery and that you intended to take the van to Melbourne to upgrade its motor and get it ready for when the farm would have been producing. 
9.	You did not provide a delivery address to Mr Landrigan.  Rather, you informed him that you intended to fly to Melbourne and that once you had arrived, you could direct him to where the van had to be delivered. 
10.	The agreed price for the freight was $2,000, to be paid upon delivery. 
11.	On that same day, 1 February 2017, Mr Landrigan left the premises and proceeded to drive the truck to deliver the van loaded with the tobacco bales as per your instructions.  It is these facts that relate to Charge 2, procuring another to move tobacco leaf.
12.	On 3 February 2017, two New South Wales Police officers stopped the truck driven by Mr Landrigan for a routine breath-test, licence and work diary check.
13.	The police officers made enquiries with Mr Landrigan as to the load on his trailer.  Mr Landrigan explained that he was transporting the Mercedes van to Melbourne on behalf of a person by the name of Mohammad and his brother Abdo or Abdul.
14.	Mr Landrigan indicated that he did not know for sure what was in the van and that he had been told that it contained ‘old tools and stuff from the farm’. 
15.	Upon inspection, the cargo area of the van was found to be sealed, the rear doors locked and the handles removed. Police gained access to the cargo area of the van and found the bales, which the police officers suspected contained Tobacco. 
16.	Upon request of the police, Mr Landrigan drove his truck and trailer to the local police station in Parkes, New South Wales. He gave them permission to access the van. The van and bales were removed and ultimately seized. 
17.	Mr Landrigan showed the officers his text message conversation with Abdul. Computer Forensics investigators took screenshots of the exchange and the matter was referred to the Australian Taxation Office (‘ATO’) for investigation. 
18.	Analysis of the samples taken by ATO Investigators indicated the suspected tobacco product was nicotiana tabacum (tobacco).
19.	The tobacco bales seized were weighted as 1,110 Kg.  As at the date of the offence, the excisable rate of $763.20 per kilogram of tobacco content was applied to bailed tobacco leaf. 
20.	The excise payable on 1,090 Kg of tobacco based on 1,100 Kg of gross weight, minus a tare allowance of 2 Kg per bale, was calculated by the ATO as being $831,888.00. 
21.	On 13 February 2017, you met with ATO investigators for a formal interview after contacting investigators using a telephone contact you had obtained from Mr Landrigan and made the following admissions:
•	that you knew the bales contained tobacco; 
•	that as a farmer by trade you could recognise tobacco; 
•	that you loaded the bales onto the van; 
•	that you loaded the van onto the trailer; 
•	that the tobacco was going to Melbourne; 
•	that you knew it was illegal to grow and possess tobacco in Australia without a licence; and
•	that you had no tobacco licence. 

22.	Around the beginning of April 2017, you approached the owner of a rural property located at 237 Pine Creek Rd, Givelda, Queensland to enquire about leasing the land. You advised that you intended to grow eggplants on the property. A land-use agreement was subsequently signed on 9 April 2017 permitting you to use the land for 12 months. 
23.	The owner visited the site on multiple occasions over this period and saw you there, working on machinery, clearing land and tending to crops. You told him they were eggplant. 
24.	At about 6am on 20 March 2018, ATO and Queensland Police Service Officers executed a search warrant at 807 Pine Creek Road, Givelda. The officers entered the property and noticed several large greenhouses to the rear of the house.  You were present when police entered the house.
25.	During a recorded conversation with ATO Investigator Robert Bowdler, you stated that you were growing Lebanese cucumbers and beans on the property.  You denied growing or possessing any tobacco and said that there was no tobacco growing on the property.  You said that your brother held legal title over the property.
26.	Investigators located a number of tobacco plants growing in the greenhouses behind the house. The tobacco plants were located in two of the greenhouses and were growing in styrofoam boxes which were floating in a large trough of water. It was determined that the crop covered an area of 0.11 acres. No cucumbers or beans were found. 
27.	Various items were seized including mobile phones and notepads that recorded approximately 20 names, times, dates, number of bags and payment details for ‘crop pickers’. 
28.	You were offered the opportunity to participate in an interview which you declined. 
29.	At about 3pm that afternoon, investigators attended 237 Pine Creek Road and executed further search warrants. They entered the property and located tobacco plants at various stages of growth within a large cultivated area.
30.	Using GPS co-ordinates it was determined that the total area under cultivation was 5.298 acres.
31.	On 23 March 2018, the samples from the two locations were forensically tested. The results indicated that the samples were of tobacco plants. 
32.	The ATO estimated that the potential loss of revenue to the Commonwealth from the two plantations was in excess of $1 million. 
33.	A forensic examination was conducted on your phone seized in the course of the search at 807 Pine Creek Rd. The following findings were made: 
•	the word ‘eggplant’ was identified as code word for tobacco; 
•	images of plants, referred to as ‘eggplant’, and attached to a text message dated 11 February 2018 were provided to a botanist who confirmed them to be tobacco; and
•	you had constant text communication with persons who referred to you as ‘Boss’; spoke about ‘eggplant’; weeding your new plot; hourly pay rates; workers; and paying wages. 
34.	You were offered the opportunity to participate in a formal record of interview during the execution of the search warrant on 20 March 2018 which you declined.

Objective seriousness of the offending

35.	The maximum penalty in relation to charges 1 and 2 is two years imprisonment.  Further, the maximum fine that may be imposed in relation to Charges 1 and 2 in this instance is over 4 million dollars calculated on the potential excisable duty that would have been payable if the tobacco leaf had been lawfully manufactured.  Therefore while the maximum imprisonment penalty is two years imprisonment, in this instance in my view it is clear that this offence is still to be viewed as a serious offence given the amount of tobacco in possession.
36.	The maximum penalty in relation to Charge 3 is five years imprisonment.  Charge 3 is an intentional dishonesty offence.  That is, the offender commits the offence with the intention of dishonestly causing a loss to the Commonwealth. In this instance Charge 3 involved criminal conduct over a period of some 11 months from April 2017 to March 2018 and commenced following the offending in relation to Charges 1 and 2 which occurred on 1 February 2017.  Further, the offending in relation to Charge 3 involved two properties and was organised and well resourced.
37.	The potential loss of excise to the Commonwealth in relation to both Charges 3 and Charges 1 and 2 was substantial.  Although Charges 1 and 2 only concern possession and movement of tobacco, any potential loss to the Commonwealth is able to be taken into account pursuant to s 16A(2)(e) of the Crimes Act 1914.
38.	Taking all those matters into account, in my view in the circumstances your offending represents serious offending against the Commonwealth.

Personal circumstances
39.	You are now aged 53. You are the second eldest child in a sib ship of seven. You were born and raised in Lebanon.  In your early childhood years your father was killed in the Civil War leaving your mother as the sole caregiver to you and your siblings.  You left school at age 9 shortly after your father’s death in order to assist your mother in caring for your siblings. Your family’s financial position was precarious as you lived in a small northern village in Lebanon where there was limited food supplies due to the war and civil unrest.  Two of your younger siblings were placed in an orphanage as your family was unable to care for them.

40.	Your mother suffered from a psychological breakdown ultimately abandoning the family for a period of three years until she had remarried.  As such, you and your sisters were left with the managing of the younger siblings.  Your mother returned to the family when you were 15 years of age and you were reunited for a period of seven years until you migrated to Australia.

41.	You were 22 years of age when you arrived in Melbourne.  You lived with your uncle and were well supported.  Your primary concern was for your family that remained in Lebanon and you were working hard in order to send money back to them.

42.	You married in 2004 and from that union you have three children who are currently aged 14, 12, and nine.  Your family all migrated to Australia in the years after you married thus taking financial pressure off you.  You purchased land in Queensland where you grew vegetables and were working up to two months at a time, two to three times per year.  The extended periods away over the five years leading up to the time of the offences put pressure on your relationship with your wife and the relationship began to deteriorate.
43.	To further add to your difficulties, you report that over the last three to four years you had lost large amounts of your vegetation as a result of unforeseeable environmental events such as floods and storms.  There were extreme rains in September and October 2017 which destroyed your crops.  Articles were tendered on the plea outlining the extreme flooding that occurred in October 2017 in the region that included your property.  These circumstances in turn led to a decline in your mental state and reported suicide attempt in March of 2017.

44.	When going through these difficult financial circumstances you were approached by an individual who offered you money to assist with the cultivation of tobacco.  You had significant debt and you were in a vulnerable mental state.  In that moment you decided to take up the offer and cultivate tobacco.
45.	You have not worked as a farmer since your apprehension in relation to these matters.  Further, you have had farm equipment stolen and a pest has been identified in the soil on your property which will cost up to $30,000 to eliminate.  In short, you have been unable to work your farm in order to relieve your financial difficulties and the farm is unable to be sold while the pest remains.
46.	You have been under the care of consultant psychologist Fares Abdulwahab since 26 February 2019 having been referred to him by your general practitioner in order to manage your anxiety and depression.  In a letter prepared by Mr Abdulwahab he confirms that you are suffering from severe depression experiencing difficulties with your emotions, social withdrawal, insomnia, suicidal thoughts (including attempted suicide in the past) and general lack of motivation and energy. He is also the view that you have been suffering from these identified symptoms for a lengthy period of time.
47.	A psychological report was prepared by clinical neuropsychologist, Matthew Staios and tendered on the plea.  Mr Staios conducted psychological assessment and he confirms that you are currently experiencing symptoms of depression in the severe range, and anxiety and stress in the moderate range.
48.	Mr Staios concludes that there is a relationship between your psychological functioning and your offending which has arisen in the context of significant financial stress and debt leading you to engage in criminal activity during the period of stress, anxiety and poorly controlled symptoms of depression.
49.	Also tendered on the plea was a letter from your general practitioner outlining your medical history which includes Type II diabetes, high cholesterol, left hip bursitis and left knee bursitis together with the anxiety and depression which I have already outlined above.  Following the plea I received a further letter from Dr Amin Sharifi of the Baker Heart and Diabetes Institute who has recently placed you on a new treatment regime for your diabetes.
50.	Three letters of reference were tendered from friends, each of which have known you for a number of years.  They speak of your honesty and trustworthiness in terms of your business dealings as a farmer.
51.	Mr Ali Mustapha, the Chairman of Victorian Arabic Social Services gave evidence on your behalf.  Mr Mustapha has known you since childhood as you both came from the same region in Lebanon.  He stated that you have assisted him in relation to solving community disputes, that you have provided produce to poorer members of the community and that you are generally held in high regard in the wider community.

Sentencing considerations
52.	As the charges to which you have pleaded guilty are Commonwealth Charges I am required to take into account a number of matters pursuant to section 16A of the Crimes Act 1914 (Cth).  Ms Dane who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of the matters in section 16A(2) that must be given weight and I have taken those matters into account. In cases such as this it was submitted, and I agree, that general deterrence must be the paramount sentencing consideration.  
53.	The importance of general deterrence in evasion of taxation or excise has been emphasised in appellate decisions.  In Director of Public Prosecutions (Cth) v Gregory, the court stated:
In seeking to ensure that proportionate sentences are imposed, the courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime and that good character cannot be given undue significance as a mitigating factor and plays a lesser part in the sentencing process.  In the case of taxation offences, general deterrence is also given special emphasis in order to protect the revenue as such crimes are not particularly easy to detect and if undetected may produce great rewards.  “Deterrence looms large” as the present process of self-assessment reposes on the taxpayer a heavy duty of honesty. 
54.	As to specific deterrence, in my view this principle should carry less weight in the sentencing discretion. While you have some minimal prior history, which I take into account, it is not a direct relevance to the circumstances presented in this instance.  Moreover, I accept that you involved yourself in this offending in desperate circumstances when you were in a very vulnerable state.  Having reviewed the material including the psychological report, in my view you are a low risk of reoffending.   For similar reasons in my view your prospects of rehabilitation should be considered as very strong.
55.	In relation to Charges 1 and 2 your plea of guilty was entered at the committal mention on 16 November 2018.  The prosecution in relation to Charge 3 was transferred from Queensland to Victoria.  You pleaded guilty at the filing hearing of that charge on 13 February 2019.
56.	In all the circumstances your pleas of guilty are pleas offered at the earliest opportunity.  Your pleas have avoided the time and expense of a trial and as such, have shown your willingness to facilitate the course of justice.
57.	As noted, in the report of Mr Staios he concludes that your offending coincided with the deterioration of your mental state and subsequent thoughts of suicide  which led to poor decision making while in that vulnerable state.  As I understand Mr Staios’ view, now that you have better insight into your mental state, you have expressed remorse in relation to the choices you made that resulted in your criminal behaviour.  While genuine remorse in relation to these types of charges can be an elusive concept, I accept that you do have some insight into your offending behaviour and as such, have expressed that you are sorry for your actions.
58.	Nonetheless the offending is serious offending and in my view, pursuant to section 17A(1) of the Crimes Act 1914, I am satisfied that no other sentence is appropriate other than a term of imprisonment.

Sentence
59.	Mr Abdallah please stand.
60.	Abdallah Abdallah, on Charges 1 and 2 you will be convicted and sentenced to 8 months imprisonment on each charge both of which will commence today.
61.	In relation to Charge 3 you will be convicted and sentenced to 2 years imprisonment.  I direct that the sentence on Charge 3 will commence 6 months after the commencement of the sentences on Charges 1 and 2, the intention being that 6 months of the sentences on Charges 1 and 2 be cumulative on the sentence on Charge 3.
62.	That makes for a total effective sentence of 2 years and 6 months imprisonment.  Pursuant to s20(1)(b) of the Crimes Act 1914, I direct that you be released forthwith upon giving a recognisance in the amount of $2,000.00 and to be of good behaviour for a period of 4 years.
63.	Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would heave sentenced you to a period of imprisonment of 3 years to be released after serving a period of 6 months.

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