On 4 September 2014 the New South Wales Court of Criminal Appeal upheld the Crown appeal against the sentence imposed on the Defendant by his Honour Judge Finnane QC in the District Court of New South Wales in relation to two offences of bribing a Commonwealth Public Official.
The Defendant approached two Australian Customs officers while they were providing training in Indonesia to Indonesian Customs officers and asked to meet with them to discuss a business arrangement where they could ‘both make some money’. The Defendant met with the Customs officers later that day where he offered them $100,000 each to assist him in clearing boxes off the wharf that contained smuggled tobacco and cigarette products. The Customs officers reported this meeting upon their return into Australia and a controlled operations authority was issued.
Following this initial meeting the Defendant met with, or contacted, one of the Customs officers on approximately 19 occasions and paid a total of seven bribes in the period 6 July 2011 to 29 August 2011. The total amount of the bribes was $352,190 in Australian currency and $20,000 in US currency. The bribes were paid in an attempt to circumvent border protection controls, corrupt Commonwealth officers and avoid the payment of approximately $27 million dollars in Customs duty and taxes arising from the illicit importation of tobacco.
On 23 January 2014, following a plea of guilty to two rolled up charges, Finnane DCJ sentenced the Defendant to a term of three years three months imprisonment with a non-parole period of one year eight months. The first charge related to bribes paid on five occasions totalling $172,090 for containers being smuggled into Australia for the Defendant’s own benefit. The second charge concerned the payment of two bribes on one occasion comprising $180,000 and US$20,000 relating to a container being smuggled into Australia for an associate of the Defendant in which he had a financial interest. In determining the sentence to be imposed, Finnane DCJ took into account the Defendant’s early plea of guilty and the fact he had given significant assistance to authorities regarding the importation of tobacco. His Honour discounted the sentence by 60 per cent to take into account these factors and imposed wholly concurrent head sentences.
The Crown appealed this sentence upon the following four grounds:
- The sentencing Judge erred by imposing wholly concurrent head sentences;
- The sentencing Judge erred by imposing a single non-parole period of one year and eight months, without having regard to the provisions of Part 1B of the Crimes Act 1914 (Cth), and in particular, the requirement in s.16A to make an order of a severity appropriate in all of the circumstances;
- The sentencing Judge erred by allowing a combined discount of 60 per cent in recognition of the Defendant's guilty plea and assistance to authorities; and
- The sentences imposed were manifestly inadequate.
The Court of Criminal Appeal found the sentence imposed by Finnane DCJ was manifestly inadequate and upheld the Crown appeal. The Court found that while the two charges were similar offences, there were material factual differences, which called for the sentences imposed to be cumulative rather than wholly concurrent. In addition the Court stated the early plea of guilty and the discount provided for assistance to the authorities did not warrant 60 per cent and was 'excessive' in the circumstances of this case. Ultimately the Court found the point at which Finnane DCJ ended up 'was so low as to fall outside the reasonable range of appropriate sentences. It was manifestly inadequate'. Further Garling J stated: 'The sentences which were imposed by the sentencing judge, and in particular the single non-parole period, do not reflect proper attention to the seriousness of the offending, nor to the important role of general and specific deterrence in the circumstances of this case. In the result, in my opinion, the sentences imposed are so lenient that they are offensive to the administration of justice and this court must intervene'.
The Court quashed the sentence imposed by Finnane DCJ and resentenced the Defendant to a term of imprisonment for five years with a non-parole period of three years and six months. The Court found the proper notional head sentence was eight years and that a discount of 50 per cent should be applied for the Defendant's early plea of guilty and his assistance to authorities. In addition the Court stated that unless the offences were accumulated they would not adequately reflect the extent of the criminality involved. Accordingly a period of 12 months accumulation was imposed.
Afiouny filed an application for special leave to appeal to the High Court.
On 8 April 2015, the High Court determined that the application for special leave did not identify a sufficient reason to doubt the rectitude of that conclusion of the NSW Court of Appeal and to the extent that the application for special leave might otherwise raise a question of general importance, it is, therefore, not an appropriate vehicle for determination of that question. The High Court determined that as a result, Afiouny had not demonstrated that it was in the interests of justice, either generally or in the particular case, that special leave to appeal should be granted.
Read the media release on the CDPP website: Time in gaol doubled for man who tried to bribe Commonwealth officials