CDirector of Public Prosecutions v Lin
[2022] VCC 1099
•18 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02279
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XIAONING LIN |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2022 | |
DATE OF SENTENCE: | 18 July 2022 | |
CASE MAY BE CITED AS: | CDPP v Lin | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1099 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Importing tobacco products with the intention of defrauding the revenue – Rolled up charge encompassing four importations over a period of eight months - Prominent role in the offending – Persisted in the offending despite clear warnings of the risk of detection – Revenue in the sum of $5.47 million evaded – No prior criminal history – Early guilty plea
Legislation Cited: Customs Act 1901 (Cth); Crimes Act 1914 (Cth); Proceeds of Crimes Act 2002 (Cth)
Cases Cited:Barakat v DPP (Cth) [2020] VSCA 185; Tran v The Queen [2021] VSCA 292
Sentence: 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr M. Keks | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr G. Hughan | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Xiaoning Lin, you have pleaded guilty on indictment to one charge of importing tobacco products with the intention of defrauding the revenue, contrary to sub-section 233BABAD(1) of the Customs Act 1901 (Cth). This offence carries a maximum penalty of 10 years’ imprisonment.
2The offence to which you have pleaded guilty is a rolled-up charge relating to four separate importations over a period of 8 months between 29 July 2020 and 29 March 2021.
Circumstances of the offending
3The circumstances of your offending are set out in the summary of prosecution opening upon plea filed on 17 February 2022.[1]
[1] Exhibit A.
4You are a Chinese citizen by birth, and you arrived in Australia on a visitor visa in May 2018. You are also known by the name ‘Jayson’.
The first importation (Khor importation)
5On or before 20 July 2020, a freight forwarder, 1UpCargo, was engaged by an agent in China to facilitate an importation (ID: S00007289) in the name of Kean Yi-Khor. 1UpCargo was provided with an image of a false New South Wales licence in the name of Khor.
6On 20 July 2020, 1UpCargo processed the paperwork in respect of this importation, which was declared as ‘hydraulic pressure stands’ and addressed to 54 Mercedes Drive, Thomastown with the phone number 0423 836 537.
7The Khor importation arrived in Australia on 29 July 2020. It was examined by Australian Border Force (‘ABF’) on 5 August 2020. It was found to contain 14 hydraulic pressure stands. Concealed in each stand were 80 silver packages of tobacco, each weighing 162 kilograms, making a total of 2,268 kilograms. ABF removed the tobacco and repacked the container for delivery. The total amount of duties and GST payable on the tobacco seized was $3,210,181.
8On 7 August 2020, the consignment was delivered to 54 Mercedes Drive, Thomastown. At the time of delivery, you were present along with another person named Zhongxiang Xue. Mr Xue operated a business called Kadason Auto Services at 56 Mercedes Drive. 54 and 56 Mercedes Drive shared a common driveway. You ushered the driver of the consignment onto the driveway, identified yourself as ‘Kean’, and accepted delivery of the consignment. You supervised a forklift driver who unloaded the consignment and took it inside the warehouse of Kadason Auto Services. Once the consignment was inside the warehouse, you took videos on your phone which showed the contents of the Khor import. In some videos, a voice was heard in the background saying, ‘Goods received, but it’s fucking shell, empty inside’ and ‘Nothing inside, like this, empty, empty shell. It’s like this inside’.
9On the evening of 7 August 2020, Mr Wang, an employee of 1UpCargo received threatening messages and phone calls in Mandarin from international numbers. The messages included an image of tobacco wrapped in the same manner as the Khor import. The following day, Mr Wang, received missed calls from the number 0450 825 688. It is not alleged that you made these threatening calls.
10On 11 August 2020, the transport company CY Logistics was hired by ‘Kean Yi-Khor’ to pick up a consignment described as a motor cabinet from 54 Mercedes Drive, bound for export to Guangzhou, China. Mr Xue assisted the driver to load the contents of the Khor import onto the truck. You arrived during the loading and observed the work, before giving the driver a box from the boot of your car. You left once the truck had been loaded.
Second importation (Chen importation)
11On 27 July 2020, a Chinese shipping agent contacted Global Link Logistics, a freight forwarder, to facilitate the importation of a consignment (ID: ANDYJMM-MEL). The details provided included the following name, phone number, email address and delivery address: Minghui Chen, 0423 836 537, [email protected], 52 Mercedes Drive, Thomastown. The goods were described as ‘Cart’.
12Records revealed that Minghui Chen had left Australia in 2018 and had not returned. This import arrived in Australia on 4 August 2020. It was examined by ABF on 13 August 2020 and found to contain 388,400 cigarettes concealed inside metal carts.
13The total amount of duties and GST payable on the tobacco was $405,724.
14On 16 August 2020, the cigarettes were removed, replaced with seizure notices and the consignment was re-packed by ABF. The Chen import was released for delivery on 21 August 2020.
15On 27 August 2020, Mr Yang, a delivery driver, called the mobile number 0423 836 537. A man answered in Mandarin and confirmed the delivery address. The delivery was captured on a nearby CCTV camera. Upon arrival, Mr Yang met you and confirmed the details of the consignment. You replied to him ‘Yes it’s right’. You told him where to park. You climbed onto the truck and pushed one of the wooden crates off the truck. The crate broke, and several metal trolleys were visible inside. Other men present rolled two of the trolleys into Kadason Auto Services. About 10 minutes later, you returned and said to Mr Yang ‘It’s not our stuff’. The details on the delivery order had been correct but you refused to accept delivery, stating the goods were not theirs. You made a video call to another man and was overheard saying ‘Take it back to the warehouse or throw it away’. You took several videos on your phone. One showed the metal carts with no cigarettes inside. Another was a video of a phone screen which played another video showing the carts with cigarettes inside. In a third video, a voice can be heard saying ‘Empty, only shell, don’t want it, get him to have the goods returned’.[2]
[2]This is a translated version of what was heard being spoken in Mandarin.
16You eventually left the address along with the other men who were assisting you.
17On 2 September 2020, you sent the following message to an overseas number:
I’ll get in touch with the police in Guangzhou first about you doing this, go in once again, I can provide proofs if there’s none, it’s ridiculous. I’m fucking called for money just for an empty box.[3]
[3] This is a translation of the message.
18You took a photograph of the seizure notice issued by ABF. That seizure notice was later located in your car.
Third importation (Suda import)
19Between 18 June and 23 July 2020, customs broker Visa Global Logistics, was contacted by a person named ‘Jessy’ purporting to be from Gold Land Australia Pty Ltd. ‘Jessy’ engaged Visa Global to facilitate the importation of a consignment said to contain ‘bedside combined cabinet’ and paid their invoice in the sum of $2,500.
20This consignment was not intercepted by ABF and is not the subject of any charge. It was delivered to 56 Mercedes Drive, Thomastown.
21On 18 August 2020, a person named ‘Suda’ contacted Visa Global stating that they were now the Gold Land Australia contact as ‘Jessy’ was in hospital. ‘Suda’ asked Visa Global to clear consignment ID: 80724509, which was said to be ‘the same product as last time’. This consignment was addressed to ‘Lason’ [sic] at 56 Mercedes Drive, Thomastown. The phone numbers provided were 0432 821 464 and 0405 876 523. The latter is your number.
22As instructed, Visa Global declared the Suda import as ‘bedside combined cabinets’ and issued an invoice for $629.17, representing the total duty owed on the declaration.
23On 19 August 2020, $750 was deposited into Visa Global’s account and a photo of the deposit slip was sent to Visa Global. ‘Suda’ told Visa Global that the extra amount was a tip. This photo was later located on your phone along with a different photo of the same deposit slip.
24This importation arrived in Australia on 21 August 2020. It was examined by ABF and found to contain shelving units, with tobacco concealed inside each unit in heat wrapped blocks.
25In total, this import contained 448 kilograms of tobacco. The total amount of duties and GST payable on the tobacco was $645,494.
26ABF released the Suda import for controlled delivery.
27On 1 September 2020, Visa Global advised either ‘Jessy’ or ‘Suda’ that there were outstanding freight charges of $1,950 on this importation.
28On 2 September 2020, you attended a bank and deposited $1950 into Visa Global’s bank account. You took a photo of the deposit slip. That same day ‘Jessy’ sent Visa Global the same photo of the deposit slip taken by you.
29The next day ‘Jessy’ asked Visa global if he could pick up the goods rather than have it delivered. This caused ABF to abandon the controlled delivery, and on 4 September 2020, ABF seized the import from Visa Global.
30At 10:29am on 4 September 2020, Visa Global called ‘Lason’ on 0432 821 464 to advise them of the seizure. The person who answered said ‘Yes, this is Lason’, but the conversation did not progress any further as they did not speak English well. ‘Lason’ said they would call back ‘in 13 minutes’.
31At 10:41am, you arrived at 56 Mercedes Drive.
32At 10:42am, Visa Global received another call from 0432 821 464, and the same information was repeated.
33At 11:12am, you arrived at your home address, 32 Cameron Parade, Bundoora and were arrested by ABF.
34While you were in custody, Visa Global sent an email to ‘Jessy’ advising of the seizure. ‘Jessy’ replied at 1:28pm, stating the owner of the consignment was ‘Jason’.
35Following your arrest, ABF located:
· A mobile phone with a number 0432 821 464 in your jacket pocket.
· $50,000 in cash in the vehicle you were driving.
· $133,000 in cash in your bedroom.
· The seizure notice issued by ABF for the Chen import.
36You were interviewed and stated the following:
· Your phone number was 0405 876 523 and was registered in your brother’s name.
· Your email address was [email protected] and you could not remember your WeChat username.
· You worked in construction and were paid in cash. You lost your job six months ago. You also did some work moving houses.
· You said that the car you were driving was owned by your brother and other people used it. Someone who you did not know drove the car to you and gave you the keys on the morning of your arrest.
· In respect of the phone found in your jacket, you said that you did not know its passcode, it did not belong to you, you did not use it today, and did not know if anyone else used it.
· You said that you had never imported any tobacco. You had never imported any goods from overseas or taken delivery of goods for anyone. You denied receiving any seizure notices from the ABF. You had never heard of Minghui Chen or Kean Yi-Khor.
· You denied receiving any deliveries at Mercedes Drive. When asked if you would be on CCTV at Mercedes Drive, you stated that you were repairing your car at your friend’s shop and went there two or three times to buy groceries.
· You stated that just prior to your arrest you had been out shopping for water nearby. When told that you had been observed near Mercedes Drive, you stated that you were there to see if your friend could do something regarding your car.
37You were released without charge.
Fourth importation (the Muriel Court import)
38On 9 February 2021, you called the Informant and stated that you had received an email sent to you on [email protected]. You told the Informant that you had moved from 32 Cameron Parade – your previous address – and now had no fixed address. You said that you wanted the seized cash returned to you. You gave your phone number as 0451 600 525.
39On 9 March 2021, a shipping agent in China contacted customs broker ‘Across the Ocean Shipping’ to process a consignment (ID: HJ17MEL10253). The details of the consignee were:
‘Jayson’ at 2 Muriel Court, Reservoir, 0451 712 868, [email protected] – [email protected].
40On 15 March 2021, using the name ‘Jason’, you emailed Ocean Shipping from [email protected], confirming that you would accept local shipping charges.
41This fourth import arrived in Australia on 29 March 2021.
42On the same day, Ocean Shipping requested a letter of authority from ‘Jason’ including the company name. They were provided with a letter from Lucky Little Dumpling signed by ‘Jayson’ the ‘General Manager’.
43On 31 March 2021, Ocean Shipping issued an invoice to ‘Jayson’ at Lucky Little Dumpling for $6,995.98. They then received an image showing a cash deposit slip of $7000 into their account.
44On 7 April 2021, Ocean Shipping was advised to redirect the Muriel Court import to ‘Jayson’ at 3 Muriel Court, Reservoir, with the same phone number of 0451 712 868.
45The new address brought this importation to the attention of ABF.
46On 16 April 2021, ABF examined the import and found it contained 24 punching bags filled with tobacco. In total, this import contained 697 kilograms of tobacco. The total amount of duties and GST payable on that tobacco was $1,208,756. It was seized by ABF.
47On 5 May 2021, ABF executed a search warrant at 3 Muriel Court. They located the phone with number 0451 712 868, as named on the consignment. This phone contained:
· the documents and correspondence between ‘Jayson’ and Ocean Shipping.
· An image of your driver’s licence.
· A profile picture of you above the name ‘Jayson’ [sic].
48You were not present inside the premises when ABF arrived. However, during the course of the search being conducted, you were observed fleeing into a nearby yard by climbing over a fence and running down the street. You were apprehended and arrested.
49During a record of interview:
· You admitted owning the phone with the number 0451 712 868.
· You stated that you imported the punching bags because you were setting up a fitness business. You had no knowledge that the bags contained tobacco.
· You ran away because you were concerned that you would be deported.
· When told that you were seen on CCTV making cash deposits relating to the importations, you stated that the boss in China asked you to pay the fee and they would repay you. You said you had no idea what was in the consignments. You were just asked to pay the fee and accept the goods.
50The entirety of your offending involved importing 3,413 kilograms of tobacco and 388,400 cigarettes. The total revenue evaded was $5,470,155.
51You have remained in custody since your arrest on 5 May 2021.
Personal Circumstances
52A psychological report dated 6 March 2022, prepared by Gina Cidoni was tendered on your plea.[4] It sets out your personal history. Your counsel also alluded to your personal history in his written[5] and oral submissions.
[4] Exhibit 2.
[5]Exhibit 1.
53You are a Chinese citizen born in May 1982 and are now aged 40. You endured an impoverished upbringing.
54You achieved an equivalent of Year 7 education in China, leaving school at the age of 15. You then began working to support your family.
55You worked in a clothing shop owned by your aunt. Having saved some money, you set up your own clothing store. You ran this business for three years. You then left China and travelled to Malaysia, where for two years, you worked as a manager of an iron ore mine. You then travelled to Papua New Guinea where you worked as a supermarket manager for two years.
56Around 2012, your father passed away from cancer in China. You were unable to see him before his passing. Your mother is now aged 63 years old, and still lives in the family home. You have supported her financially.
57You met your wife at the age of 19 and were married when you were 22 years old. Together you have two children, a daughter aged 15, and a son aged 14. Your wife and children continue living in China in rental accommodation near your mother. You have not seen your family for some 10 years while you have been working to provide for them.
58In May 2018, you arrived in Australia on a visitor visa. On 25 September 2018, you lodged an application for a protection visa. You were granted a bridging visa without permission to work. On 22 July 2021, your application for a protection visa was refused. Your bridging visa expired on 26 August 2021.
59Despite not being entitled to do so, you worked casually as a painter and decorator for a period of six months. You fell at work and suffered an injury to your back. You then worked as a delivery driver, but this work decreased during the pandemic. It was submitted on your behalf that you had little income to sustain a living in Australia or to send money to your family in China. It was in this context that you became involved in the offending.
60Your counsel submitted that you became involved in this offending as a result of being given an opportunity to make money by a man named Lin Licai. You were offered $5,000 for accepting delivery of a consignment of imported tobacco and cigarettes and arranging delivery to Mr Licai’s associates.
Gravity of the Offending and Sentencing Principles
61The maximum penalty of 10 years’ imprisonment indicates the seriousness with which Parliament views offending of this kind. Offences against the revenue undermine the integrity of the taxation system and impose unfair burdens on those who pay taxes. It is not, therefore, a victimless crime.
62In sentencing, prominence must be given to general deterrence. Those who contemplate committing this crime must understand that serious consequences will follow, and in most instances, sentences of imprisonment will result.
63In Barakat v DPP (Cth),[6] the Victorian Court of Appeal said at [54]:
Because of the financial rewards that can be associated with the offending of this kind (where the goods are subject to relatively high taxes and duty), the difficulty of detection and the erroneous view that offending of this kind is lower level order criminality or ‘victimless’, it is necessary to place emphasis on general deterrence. That remains so, even where the offender is otherwise of good character and unlikely to offend again. Relatedly, offending of this kind often involves, as it did in this case, premeditation and planning. There is the opportunity to reflect on the risk and reward equation. It is necessary that sentencing courts visit the offending with suitably stern sentences so as to deter those who might otherwise be attracted to the high returns fortified by the difficulty in detection
[6][2020] VSCA 185.
64Legislative provisions which deal with the importation, distribution and sale of tobacco are aimed at regulating a harmful product. Illicit importations undermine that regulation and prevent inspection of the tobacco for potentially harmful contaminants.[7]
[7]Tran v The Queen [2021] VSCA 292, [7].
65I regard the offending which you engaged in as a very serious example of this offence. While you have pleaded guilty to a single charge, it is a rolled-up charge involving four discrete importations of tobacco over an extended period between July 2020 and March 2021.
66The amount of revenue defrauded was significant, some $5.47 million. The scale of the enterprise was substantial, involving 3,413 kilograms of tobacco and 388,400 cigarettes imported in four consignments from China. The loss to the revenue has not been repaid.
67The offending was relatively sophisticated. The tobacco and cigarettes were concealed within legitimate goods and accompanied by apparently legitimate documentation. The offending involved use of false names, multiple telephones and delivery addresses.
68You had an opportunity to walk away from the offending having received a seizure notice in respect of the Chen importation. Despite that clear warning, you persisted with a third; the Suda importation. Following the Suda importation, you were arrested and interviewed. You were released without charge. Even your apprehension and police interview did not deter you one bit. You continued your offending with yet another, the fourth importation.
69I regard your moral culpability for the offending as high.
70It is not suggested by the prosecution that you were the mastermind or head of the enterprise. However, it is an inescapable fact that you played a central and a prominent role in this offending.
71You were involved in each of the importations, collecting or attempting to take possession of each importation. You were involved in sending back the goods in respect of the Khor importation. You were responsible for paying the fees to the custom brokers in respect of the Suda and Muriel Court importations. You were found in possession of a significant amount of cash, $183,000. Upon your own admission, you arranged the fourth importation.
72I conclude your involvement in the offending was clearly motivated by financial gain. I do not accept your counsel’s submission that you were only to be paid $5,000 per consignment. The potential rewards, bearing in mind the duty evaded, must have been considerable. The fact that you continued offending despite being on notice, makes it plain that you knew the importations were profitable and worth taking the risk. Further, your significant role is also indicative of a significant reward. The text messages referred in the prosecution’s further written submissions,[8] also suggest you expected a significant future reward.[9] I am unable to make any findings as to the exact benefit you were going to derive.
[8] Exhibit C.
[9]Exhibit C [16](b).
73I do not accept that your offending was motivated by financial hardship. The totality of the evidence does not support that assertion. Your counsel relied on paragraph 10 of Ms Cidoni’s report where she states:
Mr Lin indicated the offending was financially driven. There were many stressors at the time as he was caring for his parents, his wife, his parents in law and his children. He was working less due to the Covid-19 pandemic restrictions and was struggling with making ends meet. He claimed he didn’t understand what he was doing was illegal.
74I do not accept that you did not understand the activity you engaged in was illegal. As the prosecution submit, the importations were characterised by the use of false names, false declarations and concealed tobacco. In addition, you continued to offend after receiving the Chen import containing a seizure notice, and also after your arrest and questioning following the Suda import.
75Your engagement in the currency remittance business clearly generated income, even if you only received a small amount of commission per transaction. Between September 2018 and May 2020, you dealt with $1.2 million by way of remittances from Australia to China. The text message set out in paragraph 16(a) of the prosecution’s further written submissions also allude to you generating income. You also had access to a significant sum of money.
Matters in Mitigation
76You are now aged 40 and have no prior criminal history.
77You have pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial. Your plea of guilty attracts a greater utilitarian benefit, as it has been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[10]
[10]Worboyes v The Queen (2021) 96 MVR 344.
78Your persistence in the offending despite the seizure notice and arrest, and your lies during the police interviews, evidence no remorse on your part. As noted earlier, you told Ms Cidoni that you did not know what you were doing was illegal.[11] However, I am prepared to accept that your plea of guilty demonstrates a degree of remorse.
[11]Exhibit 1 [10].
79You have been on remand in custody since 5 May 2021. The pandemic has made your time on remand more onerous. In particular, you have endured periods of lockdown where you have been confined to your cell. Your family is in China and the separation is causing you anxiety.
80Having said that, as your counsel pointed out, you have made the most of the opportunities on remand. Since November 2021, you have worked as a cleaner, disinfecting the handrails in your unit. You have been learning English and music. You have maintained contact with your family via phone and video calls. You have been able to socialise with other Mandarin speaking inmates in your unit.
81I note for completeness, your counsel placed no reliance on the fact of your inevitable deportation as a mitigating factor.
82On 29 June 2022, as a result of you consenting, a judge of this court made an order forfeiting the $183,000 seized from you by the ABF on 20 September 2020. I take into account your co-operation in accordance with s 320(a) of the Proceeds of Crime Act 2002 (Cth).
Sentencing
83On behalf of the Commonwealth, Mr Keks submitted that when proper regard is had to your role and the gravity of the offending, it is plain that this is a serious example of the offence. He highlighted the importance of imposing a sentence that gave weight to general deterrence. He submitted that despite the mitigating factors, the offending called for a sentence consisting of a head sentence and a non-parole period.
84On your behalf, Mr Hughan took no exception with the categorisation that this was a very serious offence. He accepted, quite properly, that you played a significant and prominent role in the offending. He took no issue with the matters impacting upon the seriousness of the offending, other than to highlight that this case lacked the kind of sophistication often seen where shell companies are formed to legitimise the illegal importation of tobacco.
85Mr Hughan submitted that consideration should be given to a sentence that permits the making of a recognisance release order. However, he was realistic in conceding that a sentence involving a non-parole period was in range.
86In considering the ultimate sentence, I have had regard to all relevant matters and principles. I have taken into consideration the matters listed in s 16A of the Crimes Act1914 (Cth).
87Whilst general deterrence assumes significance, specific deterrence is also a relevant sentencing objective. As far as rehabilitation is concerned, I accept you have reasonable prospects.
88I have also considered the comparative sentencing cases provided to me by Mr Keks and Mr Hughan.[12]
[12]Al Mahmoud v DPP (Cth) [2021] VSCA 240; Jabal v The Queen [2021] VSCA 33; Barakat v The Queen [2020] VSCA 185; R v Medalian (2019) 133 SASR 50; R v Saleh [2015] NSWCCA 299; Young v R [2016] VSCA 149; R v Mohmoud [2020] VCC 2039; R v Bi & Others [2020] VCCC 2103.
89Ultimately, previous sentences are not precedents but helpful yardsticks. They also articulate the important sentencing objectives in offending involving the evasion of revenue.
90Having regard to the gravity of the offending, I agree with the prosecution submission that in order to do justice to all sentencing objectives, this case calls for a sentence involving a head sentence and a non-parole period.
91On Charge one, importing tobacco products with the intention of defrauding the revenue, you are convicted and sentenced to 3 years and 6 months’ imprisonment. I set a non-parole period of 2 years and 3 months’ imprisonment.
Pre-sentence Detention
92The period of 439 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA Declaration
93Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Mr Lin pleaded not guilty and been convicted, he would have been sentenced to a term of 4 years and 9 months’ imprisonment with a non-parole period of 3 years.
94HIS HONOUR: Thank you, Mr Keks anything arising?
95MR KEKS: No, Your Honour.
96HIS HONOUR: Thank you, Mr Hughan?
97MR HUGHAN: Nothing from me Your Honour.
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