CDirector of Public Prosecutions v John Bowen (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No CR-21-01353

THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

JOHN BOWEN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2021
DATE OF SENTENCE:	5 October 2021
CASE MAY BE CITED AS:	CDPP v John Bowen (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1492

REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:               Importing tobacco products with the intention of defrauding the revenue (one count) – Commonwealth Offence – total duty evaded $1,640,578.74 – no prior criminal history – plea of guilty during the currency of the pandemic – possibility of deportation at the conclusion of sentence – significant but not principal role in the importation – reasonable prospects of rehabilitation.
Legislation Cited:        Customs Act 1901 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Guden v The Queen (2010) 28 VR 288; Darcie v The Queen [2012] VSCA 11; Hili v The Queen (2010) 242 CLR 520
Sentence:  26 months imprisonment. Release after 16 months on entering into a Recognizance Release Order in the sum of $1,500.00, to be of good behaviour for a period of two years.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr P Botros	Scott Bruckard, Commonwealth Solicitor for Public Prosecutions
For the Accused	Mr T Antos	Nicodemus Lawyers

HIS HONOUR:

Preliminary

John Bowen[1], you have pleaded guilty to one charge of importing tobacco products with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act1901 (Cth).
[1] A pseudonym.
The offence carries a maximum penalty of 10 years imprisonment.
Circumstances of the Offending
The circumstances of the offence are outlined in the Prosecution Opening, that is Exhibit 1 on the plea. I act upon the facts as outlined in the opening which were not disputed by you. I will briefly summarise those circumstances.
On 19 October 2020, a freight forwarder named 1Up Cargo was hired to facilitate the importation of a shipping container. The consignor was Beijing Haidi Technology and the consignee was 'Li Ming'. The goods were described as 'Sand Table Models'.
In mid-October 2020, 1Up Cargo received, in addition to documents detailing the consignee as 'Li Ming', an invoice relating to the consignment from Beijing Haidi Technology addressed to person named 'Jonathan Mok'.
The documentation received by 1Up Cargo indicated that both 'Li Ming' and 'Jonathon Mok' appeared to be people in Australia that had an interest in the container.
Images of two New South Wales driver's licences in the names of these people were sent to 1Up Cargo between the 19 and 21 October, in order to verify the identity of those who 1UP Cargo believed had an interest in the container. Those images were of licences that were false and were subsequently linked to you. I was told by the prosecutor during the plea (and it was conceded by your counsel), that your image appeared on the Jonathon Mok licence.
On 7 January 2021, Australian Border Force (ABF) officers intercepted and examined the container. They found 22 crates, one of which was opened and found to contain a coffee table. When deconstructed, the table contained compressed tobacco concealed within its frame. The container was repacked for a controlled delivery.
On the morning of 19 January 2021, the container was delivered to a storage facility at 82 Northgate Drive, Thomastown. You rented a Budget Truck on the morning, and the services of two men were enlisted to drive the truck to the storage facility. Those two men were named Cheong and Tan. Cheong drove the truck with Tan as a passenger, and they travelled in the Budget truck, that you had hired, to the storage facility to deal with the container. Cheong took a photo of the back of the container and then used bolt cutters to cut the seal. He then made a phone call. The operator of the storage facility began removing the crates from the container. You arrived in a Toyota Camry and took a photo of the side of the container and then spoke with the delivery driver about unloading it. You were then arrested by ABF officers.
Inside the Budget truck were items that could be used to dismantle the tables. There were work gloves, lights, rope, tape, scales, three angle grinders, battery packs, chargers, and angle grinder wheels
You were also found in possession of three phones and the rental documents for the Budget truck. The false Johnathon Mok licence was found in your car along with a phone that, when analysed, revealed an image of the Ming licence that was the same image that had been sent to 1Up Cargo in October 2020. One of the phones found in your possession had a phone number that was the same phone number provided to the Budget company when hiring the truck.
The Crown alleges that you caused the images of the Mok and Ming licences to be sent to 1Up Cargo in mid-October to facilitate the importation of the container. I accept that proposition, and the fact that it is evidence of your involvement in the importation of the container from that time.
You were interviewed on the day of your arrest and declined to make any comment other than to admit to having purchased the Mok licence that you claimed you had purchased off the internet, and providing your phone number for one of the phones that was found in your possession.
Cheong was also interviewed as a suspect and claimed to have been hired for the purpose of delivery and unloading, at a rate of payment of $25 per hour. He claimed to have some knowledge of you as being a person who had paid him cash for jobs on previous occasions. However, he did not specify what jobs he had performed for you on these previous occasions.
During the plea hearing, the Crown conceded that Cheong's interview appeared self- serving but that the Crown had taken the view that there was insufficient evidence implicating either Cheong or Tan in the importation. The Crown submitted that for the purpose of sentencing you, I should take the view that Cheong and Tan should be regarded as innocent agents. I have taken that approach.
On 22 January, the contents of the container were deconstructed and a total of 946 kilograms of tobacco was located concealed within the tables.
No duty was paid on this tobacco. At the time of the offending, the duty payable on 1 kilogram of tobacco was $1576.57 plus GST; therefore, the total duty evaded was $1,640,578.74.
Personal Circumstances
You are now 30 years of age, and you were 29 when you committed this offence. You have no prior criminal history.
You were born in Malaysia and counsel put on your behalf that you have a tight knit family, comprising yourself, two younger brothers, and your mother and father. The rest of your family remain in Malaysia. Your father is 67 years of age and is in poor health, recovering from a stroke. He has no knowledge of your current situation. Your mother is 62 years of age and works as a nanny. She has written a letter of support.[2] She writes that she has two telephone conversations with you each week. She says that you are remorseful and ashamed of your offending. She describes you as being a contributing member of society in the manner in which you conducted your previous life in Malaysia. She writes that you performed voluntary work in the community and worked as a cleaner in a nursing home. She believes if you were given an opportunity, you would not reoffend.
[2] Exhibit B on the Plea.
You had a limited education, finishing school in Malaysia at the age of 16 and then began working in Malaysia in the area of retail sales, doing grocery deliveries, and as an Uber driver.
You married in Malaysia in 2011 and have an eight-year-old son. Your marriage broke down in 2017 in circumstances where you confessed to your wife that you were bisexual and had a partner outside of wedlock.
You came to Melbourne in July 2018 on a visitor visa. It is put by Mr Antos, who appeared on your behalf, that if it was widely known in Malaysia that you were bisexual, you would likely be subject to ridicule, prejudice, and perhaps legal prosecution. As a result of those circumstances, you lodged an application for a protection visa with the Department of Home Affairs in Australia on 2 December 2018. You are now on a bridging visa awaiting the outcome of that application.
Your counsel put that your mother has no knowledge of your bisexuality. She says in her letter that should you return to Malaysia you will be supported by your family. It was put by your counsel that you regard life as a bisexual person in Malaysia as too difficult and dangerous and you hope to remain in Australia and establish a life here.
Your counsel put that you have a vice of gambling (playing roulette) that led to you coming to Australia with an outstanding debt in Malaysia of some $7,000. Since coming to Melbourne, you worked as an Uber Eats driver, but were unemployed for a time leading up to the commission of the offence. It was put that you responded to an advertisement on the internet offering money for delivering parcels, and so became involved in this criminal enterprise. Your motivation, it was said, was partly to repay the gambling debt owed in Malaysia and provide financial assistance to your son. It was put that you expected to be paid $8,000 for your role in committing the offence.
Submissions
The defence have correctly submitted that, as this is a Commonwealth offence, I am to have regard to the matters outlined in s 16A of the Crimes Act1914 (Cth) in deciding what is the appropriate sentence.
The defence rely upon your plea of guilty and the fact that it was entered at an early stage at the committal mention on 23 June 2021. It is put that your plea of guilty is evidence of contrition. It was also put that given the criminal justice system is grappling with the impact of the COVID pandemic, there is added utilitarian value in the matter proceeding as a plea. It was put that your experience of imprisonment at this time is more difficult as a result of the pandemic and any future period of imprisonment is also likely to be more difficult.[3] The defence also contend that you are somewhat isolated in gaol, with no family support and that your skills with the English language is limited, although these skills have improved during your period on remand.
[3] The Defence relies upon the authority of Worboyes v The Queen [2021] VSCA 169.
The defence also rely upon the fact that you may be deported as a consequence of the offending. They concede that there is insufficient evidence for me to quantify the risk that you will be deported; however, reliance is placed upon the fact that you have served and will serve any period of imprisonment in a state of fear or uncertainty about being deported at the expiry or your sentence.[4]
[4] The Defence relies upon the authority of Guden v The Queen(2010) 28 VR 288, [27]; Darcie v The Queen [2012] VSCA 11, [29]-[46].
It is submitted that this offending is your only transgression with the law and that your prospects of rehabilitation must be regarded as 'fair'.
It is conceded that given the features of this offending, the amount of the revenue evaded, and the emphasis placed on general deterrence for this type of offence, that a term of imprisonment is the only appropriate disposition.
The Crown submits that the sum defrauded is substantial, and the need for general deterrence demands a term of imprisonment.
It is accepted by the Crown that the plea warrants a discount for its utilitarian value, and that the value is greater during the current pandemic. The Crown accepts that the plea may be evidence of remorse and acceptance of responsibility, but submit that other than the plea, there is no evidence of remorse.
The Crown also accepts that the possibility of deportation will mean the burden of imprisonment upon you will be greater than if that possibility did not exist. It is not suggested by the Crown that you came to Australia in order to commit this offence.
As to the role played by you, the Crown concedes that whilst it is possible that other unknown offenders were involved in the crime, you played a central role. It points to the fact that your involvement at least spans the period of time from when you sent the false licences between 19 and 21 October 2020, to when you were arrested on

19 January 2021.
The Crown submits that I should not accept the submission from the Bar table that you were only going to be paid $8,000 for your involvement in this venture. The Crown invited me to infer from the fact that there were three angle grinders in the Budget truck, that once that truck was loaded, it would be driven to another location, where you, Cheong, and Tan would use the angle grinders to dismantle the tables and extract the tobacco.
Gravity of Offending and Application of Sentencing Principles
First, as to the gravity of your offending. This is a serious crime. The authorities in this area have stressed that it is not a victimless crime. The revenue lost to the government means all those who pay taxes have an increased burden placed upon them.
This crime also defeats the efforts of the Government to ameliorate the health impact of smoking tobacco. Tobacco that enters the community through the commission of this type of offending is not subject to the types of regulations that are designed to reduce the harmful effects of tobacco smoking.
These offences are difficult to detect, and the court must denounce this type of conduct. General deterrence is regarded as a primary purpose of sentencing for this type of crime. Those who contemplate committing this crime must be made aware that the offence is regarded as serious and in most instances will result in a period of imprisonment commensurate with the conduct involved.
In this case, the excise duty that was avoided was $1,640,578.74, which is a considerable amount of money.
This was a sophisticated deception perpetrated on the revenue. I find that your role was central and significant. I accept the Crown submission that you were involved at least from 21 October 2020 up until 19 January 2021. I do not find that you were the principal organiser of the importation. That role may have been played by others, and it is not suggested you had anything to do with arranging the packing of the tobacco in China. However, the importation required that someone communicate with the freight forwarder representing themselves as the intended recipient of the container. I find that you played that role in forwarding the images of the false licences.
It was also necessary for someone to actually make arrangements to receive the tobacco and arrange for its transportation. You played that role in hiring the Budget truck, which was loaded with equipment that I infer was to be used to extract the tobacco.
The method of concealment of the tobacco was sophisticated. However, it is often the case that those who take the risk or receiving the tobacco and arranging its transportation are not necessarily those at the top of the hierarchy who stand to reap the most financial benefit. I find that the risk you took in hiring of the Budget truck and the role that you played in arranging the transportation of the tobacco makes it more likely that you are somewhat lower in the criminal hierarchy than those who were likely to reap the main benefits.
I am unable to make a finding as to what would have happened to the tobacco once it was loaded into the Budget truck. I am not prepared to find, as invited by the Crown, that you would have deconstructed the tables using the angle grinders, with the assistance of Cheong and Tan. That submission seems inconsistent to me with the Crown's position during the plea that I should regard Cheong and Tan as innocent agents. It may have been that you would have delivered this truck to others involved in this crime. Nevertheless, I agree with the Crown submission that your role was central and necessary for the successful importation of this container.
I also do not accept the defence submission that you were only to be paid $8,000 for your involvement in this crime. Whilst I can infer that your involvement was for financial gain and that the potential rewards may have been high, I cannot go beyond that generalised finding.
I have referred to those matters in s 16A of the Crimes Act1914 (Cth) that are relevant and known to the court. I have reviewed the table of comparative sentences provided by the Crown, bearing in mind that such sentences are not precedents but offer some guidance in terms of sentencing principles, and the desirability of there being some consistency in sentencing between the States when dealing with Commonwealth offences.[5]
[5] Hili v The Queen (2010) 242 CLR 520.
I accept that your plea of guilty was at an early stage and is consistent with a level of remorse. I also find that you are a person of previous good character and generally accept the description of your past as outlined in your mother's letter. I find that your prospects of rehabilitation are reasonable. Your plea has significant utilitarian benefit and warrants additional discount given it was entered in the time of the pandemic. I recognise that a period of imprisonment may be more difficult when served under

the restrictions imposed due to the pandemic and that you have limited support

and are somewhat isolated in gaol, given your family members reside in

Malaysia.
I also accepted that you have a degree of uncertainty as to whether you will be deported from Australia. In the context of the difficulties you may face in Malaysia, this is a relevant additional burden upon you, that I should be mindful of when considering the length of the sentence to be imposed.
Taking all the above matters into consideration and bearing in mind that I must impose a sentence that is of a severity appropriate in all the circumstance of the offence, I sentence you as follows:
Sentence
On the charge of importing tobacco products with the intention of defrauding the revenue, you are convicted and sentenced to be imprisoned for 26 months. I order that you must serve 16 months before you may be released upon entering a Recognizance Release Order in the amount of $1,500.00, to be of good behaviour for a period of two years.
I declare that 259 days pre-sentence detention is to be reckoned as already served under the sentence imposed this day.
Pursuant to s 6AAA of the Sentencing Act1991 (Vic), I declare that, had it not been for your plea of guilty, I would have sentenced you to two years and 10 months imprisonment, with an order that you serve two years before being released upon a Recognizance Release Order in the sum of $1,500.00, to be of good behaviour for a period of three years.
Mr Botros, are there any other orders that need to be made in relation to this

matter?
MR BOTROS: No, Your Honour, there are not. Can I just add for completeness that the surrender of the false licence was done by consent and no order is necessary on that count.
HIS HONOUR: Thank you. Have the parties been able to get the details of that sentence?
COUNSEL: Yes, Your Honour. Thank you.
HIS HONOUR: Thank you. If there are no other matters, I will adjourn the

court.
COUNSEL: As Your Honour pleases.
INTERPRETER: Your Honour, excuse me, this is the interpreter. May I just interrupt you just to double confirm the - the sentence is 26 months and 16 months before any parole and - - -
HIS HONOUR: Yes, let me say this, Madam Interpreter, and please interpret.
INTERPRETER: Yes.
HIS HONOUR: Mr Bowen, you have been sentenced to 26 months imprisonment, but after 16 months you may be released upon entering a Recognizance Release Order. That Recognizance Release Order is in the amount of $1,500.00, but you do not have to pay the $1,500.00 at the time of entering the Recognizance Release Order. That $1,500.00 will be forfeited, should you breach the order, which requires you to be of good behaviour for a period of two years. The 16 months that has been imposed upon you as being the minimum period before release on the Recognizance Release Order has already deducted from it, the period of time that you have served, which is 259 days. Do you understand the sentence that has been imposed upon you?

INTERPRETER: Yes, Your Honour, thank you.
HIS HONOUR: Thank you. I will adjourn the court.
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[2021] VCC 1492

5 October 2021