CDirector of Public Prosecutions v Yang
[2022] VCC 1798
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-00349
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZISHENG YANG |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2022 (sentence indication hearing); 14 October 2022 (plea) | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | CDPP v YANG | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1798 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Importing tobacco products with the intention of defrauding the revenue – plea of guilty – delay – family hardship – burden of imprisonment – impact of Covid-19 – prospects of deportation – family hardship
Legislation Cited: Customs Act 1901 (Cth) s233BABAD – Crimes Act 1914 (Cth) Part 1B
Cases Cited:Mohamed v The Queen [2022] VSCA 136 – Totaan v R [2022] NSWCCA 75
Sentence: 10 months’ imprisonment with release on a RRO to be of good behaviour for a period of 18 months after serving 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr Shaun Ginsbourg | Director of Public Prosecutions (Cth) |
| For the Accused | Mr Luke Barker | Furstenberg Law |
HER HONOUR:
Introduction
1Zisheng Yang, you have pleaded guilty to a single rolled up charge of importing tobacco products with the intention of defrauding the revenue, contrary to s233BABAD(1) of the Customs Act 1901 (Cth). The maximum penalty for the offence is 10 years' imprisonment and/or a fine of $15,542,836.30.[1] The conduct constituting this offence was committed by you between 23 August 2016 and
27 September 2016 when you were 29 years of age. You are now 35 years of age and come before this court with no prior convictions.[1] Sections 233BABAD(4) and (5) of the Customs Act 1901 (Cth) specify that the amount of the fine is to be calculated by determining the duty evaded at the time the offence was committed multiplied by five.
Circumstances of Offending
2The full circumstances of your offending are set out in the prosecution opening upon plea following sentence indication hearing dated 14 October 2022. However, in summary, your plea encompasses the importation of three consignments of tobacco products from China, one of which arrived in Australia on
13 September 2016, the other two arriving on 27 September 2016. The duties and GST payable on the three consignments totalled $3,108,567.26.
Background to the Charged Consignments
3Prior to the importation of these three consignments, you, together with other persons including Caiyuan Feng and Wei Yu, were involved in the importation of multiple consignments by sea from China. You are alleged to have been involved in the importation from China of some 53 consignments between
9 December 2014 and 13 September 2016, none of which were inspected by customs officers to determine whether they contained tobacco products, and none of which are subject of charges. Police located numerous messages sent between you, Caiyuan Feng and Wei Yu in the period of the uncharged consignments referring to both the importation of tobacco products and the use of identification documents, such as passports, belonging to other people.4The prosecution submits, and the defence does not dispute, that the similarity between the circumstances surrounding the importation of some of these consignments and the three consignments the subject of the charge gives rise to an inference that you knew the consignments subject of the charge contained smuggled tobacco products. Further, it is submitted by the prosecution, and not disputed by your counsel, that, in the circumstances, your importation of the charged consignments should not be considered to have been an isolated event, albeit you fall to be sentenced only on the consignments the subject of the charge.
The First Consignment
5Turning to the importations the subject of the charge, the first consignment was shipped from Shanghai, China on board the ship Oakland on 26 August 2016. The consignment was addressed in your name, and the contents of the consignment were described in shipping documentation as 'poster stands'. On
13 September 2016 the ship docked in the Port of Melbourne and the consignment was examined by Australia Border Force ('ABF') officers. The consignment was comprised of 59 boxes containing 1,652 kg of shrink-wrapped, loose-leaf tobacco. No poster stands were contained in the consignment. Based on the duty rate applicable to tobacco at the time of importation, the importer would have been liable to pay to the Commonwealth a total of $1,386,887.04 in duties and taxes.6After examining the contents of the boxes, ABF officers released the consignment for the purpose of monitoring its delivery. Subsequently, Oceanic was directed by a representative of the importer who called himself 'David' to deliver the consignment to a factory in Heidelberg West. It is the prosecution case that 'David' was in fact Caiyuan Feng. The occupier of the factory was Fenglei Mao who operated a home removal and furniture business from the premises.
7Mao later told police that he had had an ongoing agreement with 'David' since 2015 to accept delivery of similar consignments from China and sometimes deliver the consignments to addresses in Melbourne. Under the agreement, Mao received payment for providing those services and disposing of the packaging. On
23 September 2016 the first consignment was delivered to Ma's factory in Heidelberg West. Around this time Mao received a telephone call from a person who asked him about the consignment. The caller identified himself as 'Jason' and said he was David's friend. He asked Mao to store the box.8That phone call was made from a mobile service which you admit was used by you. The box was later collected from Mao's factory by a courier and ABF lost track of the consignment.
The Second Consignment
9The second consignment was shipped from Shanghai, China on board the ship Milano on 23 August 2016. The consignment was addressed in your name, and the contents of the consignment were described in shipping documentation as 'poster stands'. On 27 September 2016 the ship docked in the Port of Melbourne and the consignment was examined by ABF officers. The consignment was comprised of 60 boxes containing 1,782 kg of shrink-wrapped, loose-leaf tobacco. No poster stands were contained in the consignment. Based on the duty rate applicable to tobacco at the time of importation, the importer would have been liable to pay to the Commonwealth a total of $1,496,024.64 in duties and taxes. ABF seized the consignment.
10On 21 November 2016, Oceanic received an email from '[email protected]' asking if the consignment would be released by customs if their fees were paid. This email address was provided to you by Feng in an SMS message on
20 March 2016.
The Third Consignment
11The third consignment was also shipped from Shanghai, China on board the ship Milano on 23 August 2016. The Bill of Lading identified the shipper as Tianli Xu; the consignee as Yang Wang of 6 Leicester St, Carlton; and described the contents of the consignment as noodle bowls.
12Both of these identities – Yang Wang and Tianli Xu – were identities which it is alleged by the prosecution were used by you for the purpose of hiding your role in various of the charged and uncharged importations.
13Yang Wang left Australia on 3 October 2014 and did not return until
30 September 2016. On 20 March 2016, you sent Feng a picture of the photo page of a passport in the name of Yang Wang. Moreover, the 6 Leicester St address, alleged in the Bill of Lading to be Wang's address, was connected to you by various documents found in your laptop which included a rental application for the address, and a medical certificate addressed to you at that premises.14Tianli Xu was a Chinese national who left Australia on 25 February 2010 and was not in Australia during the charge period. In 2014, after Xu had left Australia, a bank account was opened at the Elizabeth Street branch of the ANZ bank using Xu's passport. An ANZ debit card in the name of Tianlu Xu; a different bank card issued in Xu's name in around May 2016; and an iPhone containing both a photograph of Xu's passport which had been saved to the phone on
1 February 2015, and a picture of Xu's driver licence with your photo superimposed on it saved to the phone on 5 February 2015; were all later located in your possession. Further, on 20 March 2016, you sent messages to Caiyuan Feng attaching a picture of the photo page from Xu's passport.15On 27 September 2016, Milano docked in the Port of Melbourne and the consignment was examined and seized by ABF officers the next day. The consignment was comprised of 72 boxes containing a total of 336,000 cigarettes. No noodle bowls were contained in the consignment.
16On 28 September 2016, MCC World engaged a customs brokerage firm to manage the clearance of the consignment through customs. Based on documentation provided to them, the brokerage firm submitted an FID to customs on 28 September 2016 that calculated the total amount owed to the Commonwealth for duties and tax on the consignment to be $1,147.50. Based on the duty rate applicable to tobacco at the time of importation, the importer would have actually been liable to pay to the Commonwealth a total of $225,655.58 in duties and taxes.
Arrest and Interview
17On 29 March 2017, investigators executed a search warrant at your apartment in Melbourne. You were present at the address with your now wife. Investigators seized various devices including three phones and a laptop, some of which contained images and messages pertinent to the investigation. You were interviewed that day and confirmed your personal details including mobile phone numbers used by you. You also confirmed that you knew Caiyuan Feng, saying that you knew him as a friend and had visited him in prison some months prior. You denied ever having imported tobacco products, or anything else, into Australia and either denied knowledge of the various messages and items located on your phone, or gave purported exculpatory explanations for that material.
18You were charged and bailed on 29 March 2017 and therefore have no
pre-sentence detention in respect of this matter.
Legal Principles in Sentencing Federal Offenders
19In sentencing you today, I am bound to apply the provisions of Part 1B of the Crimes Act 1914 (Cth).
20Section 16A(1) provides that in determining the sentence to be passed in respect of any person for a federal offence, the court must impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence. Further, s16A(2) of the Crimes Act requires the court to take into account the matters listed within that subsection, insofar as they are relevant and known to the court, as well as any other matters. Section 16A(2) includes such matters as the nature and circumstances of the offence, plea of guilty, contrition, cooperation with authorities, matters personal to the offender including their character, age and antecedents, and sentencing purposes such as general and specific deterrence, punishment, and rehabilitation.
21Section 17A provides that a court must not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
Sentencing Principles for Tobacco Offences and Gravity of Offending
22The legal principles for sentencing offences against s233BABAD of the
Customs Act 1901 (Cth) which emerge from the intermediate appellate authorities[2] are as follows:(a) the maximum penalty of ten years' imprisonment for the offence was effectively increased five-fold in 2012 in order to address this specific offending conduct, namely the illegal importation of tobacco and tobacco products;
(b) serious examples of this offending are considered sufficiently grave as to warrant a sentence of immediate or full-time imprisonment;
(c) the offence is effectively one against the revenue and, accordingly, any offending must be viewed in the context of taxation and similar offences and guidance must be taken from the sentences imposed in those matters. This offending is not victimless. The revenue must be protected to enable government to provide for the community;
(d) the criminality in such offending is often difficult to detect and offers high rewards, and accordingly penalties imposed must be sufficiently stern to deter others from engaging in similar offending. General deterrence is accordingly to be given significant weight when imposing sentence.
[2]See, eg, R v Saleh [2015] NSWCCA 299; Young v The Queen [2016] VSCA 149; Hussein v The Queen [2016] VSCA 212; R v Zhang [2017] SASFC 5; Barakat v DPP (Cth) [2020] VSCA 185.
23The same authorities also identify that the factors relevant to the assessment of the seriousness of this kind of offending include:
· the scale and sophistication of the enterprise, including whether the offending involved other illegalities such as the use of false identities;
· the period over which the offences were committed;
· the quantity of tobacco imported and the amount of revenue defrauded or sought to be defrauded;
· the role of the offender, and in particular an assessment as to whether the offender was a principal organiser of the criminal operation or merely acting on the instructions of others;
· the extent to which the offender gained financially from his or her offending; and
· whether the loss of revenue has been repaid.
24Turning to the gravity of your offending, it was submitted by prosecuting counsel that this kind of offending is objectively serious and that your offending constitutes a serious example of the offence. In making this submission Mr Ginsbourg identified you as being a principal in the syndicate, with your role being to facilitate the importation of the consignment by providing identities, mobile numbers and addresses to which the consignments could be sent. He submitted that with the third consignment you took active steps to avoid detection of yourself and others in the syndicate by assuming other persons identities and details; and with all consignments, false declarations were used which made the offending considerably more difficult to detect. He further submitted that whilst the offending was only over a month, given the surrounding circumstances it could not be considered to be isolated offending, and the total amount of cigarettes and tobacco imported and total revenue sought to be evaded were significant. Finally,
Mr Ginsbourg submitted that, in the absence of evidence to the contrary, that it is reasonable to infer that you were to receive substantial financial reward for your role in the importation.25Mr Barker, on your behalf, did not take issue with the characterisation of the offending by Mr Ginsbourg. However, he submitted on your behalf that I should also take into account that you were not involved in procuring the tobacco in China, or packing or dispatching it to Australia; there is no evidence of you being enriched in any way through the offending; the period of offending for which I am sentencing you is very short; and ultimately, given that each of the consignments was intercepted, there was no resultant loss to the revenue. Further, Mr Barker submitted, and Mr Ginsbourg conceded, that you sat no higher than Feng in the organisation, and parity with any sentence imposed on Feng is not a consideration in your case given the different set of facts and circumstances upon which Feng was sentenced. Just give me one moment.
26I agree with and accept most of the above outlined submissions made by each counsel, save and except for two matters. Firstly, it would appear that the first consignment, whilst intercepted, was not retained by ABF. However there is no evidence of what became of the contents of that consignment. Secondly, I accept that there is no evidence of you being enriched by reason of your involvement in the importation of any of the packages and, in my view, there is insufficient evidence upon which I could draw the inference contended for by Mr Ginsbourg that you were to receive substantial financial reward for your role in the importation. Accordingly, I have not taken into account enrichment, or the possibility of substantial enrichment, as an aggravating feature of your offending.
27The offending is serious offending for all of the reasons outlined by Mr Ginsbourg. The amount of tobacco and cigarettes imported, and the total value of the duty and tax sought to be evaded is substantial and it is not in issue that although there is no evidence of enrichment, your motivation to be involved in this enterprise was one of financial gain or profit. However, the offending which I am sentencing you for is limited to the single charge covering the three consignments, and whilst you were a principal in the offending, you were not in the position of overseeing the entire enterprise. Ultimately, I do regard this as a serious example of this offending, though not in the highest or most serious category of this type of offending.
Personal Circumstances and Prospects of Rehabilitation
28Turning now to your personal circumstances. You were born in Fujian Province, China but are now a permanent resident in Australia. You are the youngest of three children to your parents Xunxi Yang, who is a security guard, and Liying Lin who performs home duties.
29Your sister who is now 39 years of age has a child and still lives in Fujian. Your brother, who is 37 years of age, is a chef and is living with his wife and two children in the United States. Your family have always been adherents to the Christian faith, and neither your parents nor your siblings have had any interaction with the criminal law. Your parents were hard workers and provided you and your siblings with a stable and happy upbringing. As Mr Barker put it, they are well-respected and law-abiding people of good standing.
30You attended Chenbai Primary School in Fujian for the equivalent of Prep to
Grade 6. You then attended Wurui Middle School for three years, and you completed your final three years of schooling at Fuqing No 1 Middle School. You completed the equivalent of VCE in approximately 2007 and I am told that you were regularly top of your class. Upon finishing school, you commenced a telecommunications degree at Jimei University in Fujian. Halfway through the second year of that course you received an educational offer and student visa to study in Australia and, with the moral and financial support of your parents, you accepted that offer. For you, the opportunity to study in Australia was not only of educational benefit, but it also offered you an opportunity to continue to engage in your worship without the ongoing fear of persecution from governmental authorities.31You arrived in Australia in 2008 as a 21 year old, and in 2009 you commenced a Diploma in Multimedia Studies at the International Design School in Melbourne. You successfully completed that course in two years and then moved on to study for a Diploma of Hospitality at Brighton Institute in Melbourne, which you also successfully completed. Whilst you were studying you also worked in various roles in restaurants as a kitchen hand and a chef. You continued to work in this industry after your graduation and worked in various restaurants in Tasmania, Sydney and Adelaide in the period between 2013 and 2015. You were granted your permanent residency at the end of 2015 when you were working in Adelaide. You then returned to Melbourne in July 2016 and with co-owners you opened your own restaurant in South Yarra named 'Blue Pathway'. You were working up to 16 hours a day in the restaurant. Unfortunately, however, business was slow and the restaurant was forced to close.
32Since your arrest in March 2017 you have continued to work and are now undertaking casual employment as a plasterer. I am told that you are hoping to obtain a full trade qualification in plastering with a view to working full-time in the construction industry. It is apparent from both this history and the references tendered on your behalf on the plea that you are someone who is, and always has been, a hard worker.
33You have also recently become married to your girlfriend Qianqian Wei who you met in 2014, and you continue to attend church. I received references from both Ms Wei and Reverend Jessica Cheung attesting to your otherwise good character, confirming your attendance at both church and Bible studies on a regular basis, and also identifying the stress which the current proceedings have had upon you.
34There is no doubt that aside from this offending (and the period leading into this offending) you are someone who has been in the past, and is again now, of good character. You have no prior convictions and no subsequent or pending matters. You have a good employment history with a real capacity for hard work. You also have the support of your wife, your family and the church. I am of the view that not only do you have excellent prospects of rehabilitation, you have already achieved that rehabilitation as reflected in the manner in which you have lived your life since your arrest in March 2017.
Plea of Guilty and Relevance of Delay in Sentencing
35Whilst this case has a protracted history, your plea of guilty in this case is a valuable plea.
36As I have already outlined, your offending occurred between August and September 2016. You were interviewed and charged on 29 March 2017 and had a filing hearing on 5 April 2017. There was a small amount of delay in the preparation of the hand-up brief, but the matter had progressed to committal mention by 13 September 2017. A contested committal, where the informant was cross-examined, was conducted on 30 January 2018, with submissions then being made on 16 February 2018. You were committed to stand trial in the County Court on 16 February 2018 and the trial was originally listed to commence on
25 February 2019.37However due to a series of events, none of which I am told were the fault of either the prosecution or defence, the trial was adjourned from
25 February 2019 to 1 June 2020, then to 11 October 2021, then to 2 May 2022 and ultimately, on 1 February this year, the trial was further adjourned to
1 September 2022. Whilst pre-trial argument and a ruling in respect of proposed tendency and coincidence evidence was undertaken in early 2019, the matter had otherwise not been able to progress since it was initially listed.38On 8 April 2022, you indicated an intention to seek a sentence indication and again, after a number of adjournments, the matter ultimately proceeded by way of sentence indication on 18 and 26 July 2022. I indicated on 26 July 2022 that in the event that you entered a plea of guilty I would impose a term of imprisonment upon you of not more than 10 months' imprisonment with release on a recognisance release order after serving part of that sentence. You were arraigned and entered a plea of guilty within two days of receiving that sentence indication, however the plea in this matter unfortunately, again through no fault of yours, had to be adjourned on more than one occasion.
39Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. Further s16A(2)(f) and s16A(2)(h) respectively require me to take into account your degree of contrition for your offending, and your level of co-operation with law enforcement agencies investigating this offence.
40Whilst your plea was not entered at an early opportunity, it is also not a plea which was entered at the 'doorstep' of the trial. It had significant utilitarian value both by reason of being entered during the current climate of the pandemic which has caused unprecedented disruption to the smooth running of the criminal justice system; and due to the complex nature of the trial, which was listed for a period of 15 days, and involved numerous witnesses and thousands of pages of annexures to the statement of admitted facts.
41I further accept that although you did not make any admissions to the offending in your record of interview and have pursued both a contested committal and
pre-trial argument in this matter prior to seeking a sentence indication, your plea of guilty is still reflective of a level of remorse; a full acceptance of responsibility for your offending; and a willingness to facilitate the course of justice. In the circumstances I have given you a substantial discount for your plea of guilty.42Additionally, I have taken into account in your favour the very considerable delay in this matter. It has now been six years since you committed this offending conduct, and the matter has been progressing through the court system for over five of those six years. This is an extraordinary period of delay which is not attributable to you in any way. I have taken the consequences of the delay in this matter into account in your favour in two ways.
43Firstly, I have taken into account that you have had the weight of this matter, and the uncertain suspense as to the possible consequences, hanging over your head for over five years. In your case, this includes not only uncertainty as to the outcome of the proceedings and the sentence which might be imposed, but also the added burden of being concerned as to the potential of deportation back to China and the persecution which you may face there if you were to be sentenced to a term of imprisonment. It was submitted on your behalf by Mr Barker, with no issue taken by Mr Ginsbourg, that in particular since 2018 there has been an intensification of restrictions on Christian practices in China including churches being shut down, churchgoers being arrested and prominent clergy being given long prison sentences.
44Many churchgoers have had to resort to underground churches in an attempt to avoid police harassment. This context has served to increase your anxiety and stress about the ultimate outcome in this matter.
45Secondly, it is now almost six years since you offended. You have not committed any further offences in that time. You have married your fiancé, have maintained employment and are in the process of re-training with a view to ultimately becoming fully qualified as a plasterer. As I have already said, you are, in my view, totally rehabilitated and I see no need in your case for me to place any weight on specific deterrence. I have taken this progress in rehabilitation into account in sentencing you.
Burden of Imprisonment – Impact of COVID-19, Prospects of Deportation, Family Hardship
46Mr Barker submitted on your behalf that if I was to impose a term of immediate imprisonment in this case, that any time which you spend in custody will be more burdensome on you than it might otherwise be by reason of the COVID-19 restrictions currently in force in custody, the uncertainty which you would face about the prospects of deportation, and concerns which you will have about not being present to support your wife and her mother who has recently been diagnosed with stage IV cancer. Further, he submitted that any term of imprisonment I impose upon you will also result in hardship to your wife which should be taken into account pursuant to s16A(2)(p) of the Crimes Act which requires the court to consider 'the probable effect of any sentence on the offender's family or dependents.'
47I accept that any term of imprisonment which I impose in this case will be more burdensome upon you by reason of the current restrictions in custody which are in place in response to the COVID-19 pandemic. You will be required to undergo a period of quarantine on first entering into custody, and are likely to be subject to ongoing lockdowns, restrictions on your access to programs and work opportunities, and restrictions on your access to family members and friends, albeit these restrictions are not as onerous as they were previously. Further, you will be in an environment in which you have little control over who you interact with and the circumstances in which that interaction occurs. I have taken this added burden of imprisonment into account in sentencing you.
48Insofar as your prospects of deportation are concerned, this can be a mitigating matter if there is sufficient evidence to enable a sensible quantification of the risk of deportation occurring and an evidentiary foundation for concluding the deportation would cause you particular hardship. In summary, and as relevant, s501 of the Migration Act 1958 (Cth) provides that the Minister must cancel a visa that has been granted to a person if the person does not pass the character test because they have been sentenced to a term of imprisonment of 12 months or more; or may cancel a visa if the person does not satisfy the Minister that they pass the character test. In the event that there is a real risk of deportation, the prospect of deportation may be a mitigating factor by means of being an additional punishment as the offender would lose the opportunity to settle permanently in Australia; and/or the uncertainty about deportation will make serving a term of imprisonment more burdensome for an offender.
49As I have already identified during the sentence indication in this matter, having considered all of the relevant sentencing factors and principles, I intend to impose a period of imprisonment which is less than twelve months. In the circumstances, you will not be facing an automatic cancellation of your visa by reason of this sentence. However there is still a prospect that your visa may be cancelled and you may be deported by reason of failing the character test.
50It is difficult to fully quantify the risk of deportation occurring, however given the length of the sentence I intend to impose. I accept that the time you spend in custody will be somewhat more onerous due to concerns on your part as to the prospect that you may have your visa cancelled and I have given some minimal weight to this additional burden of imprisonment in sentencing you.
51I note as a matter of completeness that I have not, in imposing this sentence, sought to avoid the prospect of you being deported. Rather, the sentence is one which I view to be appropriate taking into consideration all of the relevant sentencing factors and principles in this case.
52Finally, turning to your mother-in-law's situation and its impact upon both you and your wife if you were to be imprisoned, I received a translated document on the plea which confirmed that your mother-in-law has recently been diagnosed with a stage four lung malignant tumour, a secondary malignant tumour of the liver, secondary malignant tumour of the brain, secondary malignant tumour of multiple lymph nodes, hypertension grade 2 (moderate to critical) and obstructive pneumonia. She was hospitalised initially, in China between 11 August and
23 August 2022 and is receiving ongoing chemotherapy. I am told your wife, is currently in China with your mother and clearly as a result of this matter, you have to remain in Australia and have not been able to support either of them in person.53Whilst no prognosis is outlined in the medical documentation which has been provided, it is clear that your mother-in-law is extremely unwell. Your wife is, understandably, distraught about her mother's condition and I am told that you are acutely worried for both of them.
54In the recent case of Mohamed v The Queen [2022] VSCA 136, the Victorian Court of Appeal followed the decision of the New South Wales Court of Criminal Appeal decision of Totaan v R [2022] NSWCCA 75 which determined that there was no exceptional circumstances qualification in s16A(2)(p) when considering the effect of a term of imprisonment on an offender's family or dependents. Accordingly where family hardship will be caused by a term of imprisonment being imposed upon the offender, it is a relevant factor in sentencing. Of course the weight to be given to that hardship in mitigation of sentence is dependent upon the circumstances in each case.
55In the present case I have given some weight to the fact that your inability to support your wife in person by reason of being in custody during this difficult time will have a substantial emotional impact upon your wife; as well impacting upon you by adding to the burden of any time which you spend in custody. Whilst this hardship is not of the most significant kind which comes before the court, I have taken it into account both in terms of the impact upon your wife and the additional burden upon you.
Sentencing Submissions and Comparative Cases
56On the sentencing indication, Mr Barker submitted on your behalf that given the extraordinary mitigating circumstances in this case a Community Correction Order would be an appropriate disposition. However in the event that I was of the view that a period of imprisonment must be imposed, he submitted that a term of imprisonment with release on a recognisance release order should be imposed.
57Mr Ginsbourg, on behalf of the prosecution, submitted that having regard to the objective seriousness of the offence, the maximum penalty, and the need to give significant weight to general deterrence, a sentence involving a term of imprisonment, with some part of that term to be immediately served is the only sentence reasonably open. Mr Ginsbourg conceded, however, that it would be an appropriate exercise of the court's sentencing discretion to include release on a recognisance release order.
58In determining an appropriate sentence in this case, I do have a duty to regard what has been done in comparable cases throughout the Commonwealth. To that end, I was provided with a short table of cases which had been prepared by the prosecution where offenders had been sentenced for offences against s233BABAD(1) of the Customs Act where pleas of guilty had been entered. The sentences in those cases were all terms of imprisonment which included a period to be served in custody either followed by straight release, release on a recognisance release order, or release on parole. Mr Ginsbourg rightly conceded, however, that none of the cases referred to in that table are on all fours with the present case, either in terms of the factual scenario or the circumstances of the accused.
59I also raised with your counsel, Mr Barker, that I had been unable to find any sentences for this offence in which anything other than a term of imprisonment (including a term of imprisonment to be served by way of intensive correction order) had been imposed.[3] Again, Mr Barker rightly pointed out that your case could not be placed on all fours with any of the previously decided cases given the impact and effects of the extraordinary period of delay in this case, and the significant weight to be given to the utilitarian value of your plea in circumstances where it had both saved the time and expense of a complex trial, and was entered during the pandemic with all of the attendant benefits of such a plea to the administration of justice in this state at this time.
[3]I note that this was by reference to both decisions of intermediate appellate courts and intermediate courts.
60Ultimately, I have taken each of the cases referred to – as well as other intermediate appellate cases relating to sentencing on this charge – into account as they do provide guidance as to the application of the relevant sentencing principles in this area, and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Ultimately, however, I have sentenced you in this case on the basis of applying the principles to the specific facts to you and your case.
Sentence
61As I have already identified, s17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court after having considered all other available sentences is satisfied that no other sentence is appropriate in all of the circumstances of the case. I have considered all of the matters before me in this case. Any sentence I impose must reflect the gravity of the offending, reflect the need to deter others, be imposed having regard to comparable cases throughout the Commonwealth, and to be an adequate punishment for the offences committed.
62However, there are mitigating factors in this case including the delay and the value of your plea of guilty, which in combination with the other mitigating factors raised are of considerable weight. In the circumstances and taking into account all of the relevant sentencing factors and principles, and having considered all of the various sentencing options, I am satisfied that no other sentence, other than a term of imprisonment is appropriate in all of the circumstances.
63I am also of the view that in order to reflect the gravity of the offending, and to place appropriate weight on the need for general deterrence and punishment, a part of that term of imprisonment must be served immediately. However, the mitigating factors in this case are, in my view, so significant that they substantially reduce both the length of the sentence to be imposed, and the length of time for which immediate imprisonment is required. If it were not for these factors, I would have imposed a much more substantial term of imprisonment.
64Mr Yang, if you could please stand up.
65On Charge 1, importing tobacco products with the intention of defrauding the revenue contrary to s233BABAD(1) of the Customs Act 1901 (Cth), you are convicted and sentenced to a term of imprisonment of 10 months.
66Pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released after serving four months' imprisonment upon you giving security by recognisance in the amount of $1,000 to be of good behaviour for a period of two years.
67I note that there is no pre-sentence detention to be declared in this case.
68So, Mr Yang, the purpose and effect of the recognisance release order is to grant you conditional freedom in four months' time. Upon your release, if you commit a further offence in breach of the recognisance to be of good behaviour during that two year period, or if you fail to comply with any of the conditions, then unless you can show a reasonable excuse for that further offending or the breaching, you will be dealt with for that breach and be re-sentenced.
69Some of the potential outcomes if you do breach the order are that you may have to pay the $1,000 I have indicated, and you may have to immediately serve the remaining term of imprisonment of six months. Do you understand that? All right.
70I also inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance release order in accordance with s20AA of the Act. Given what I have told you, are you willing to agree to be of good behaviour for that two year period?
71All right. Thank you. You can take a seat for the moment. You will also need to print that out, make sure everyone's happy with it before you sign a copy of the order, we just need to print that out and make sure everyone's happy with it before you sign it. I just have a couple of other things I need to announce.
Section 6AAA declaration
72Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have received a different sentence. That sentence would have been a total effective sentence of 18 months' imprisonment with release on an RRO after serving 13 months' imprisonment on the condition that you be of good behaviour for a period of two years.
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