Chief Executive Officer of Customs BY Richard Kenneth Coleman, His Duly Authorised Delegate v Amoran Pty Ltd
[2002] WASC 273
CHIEF EXECUTIVE OFFICER OF CUSTOMS BY RICHARD KENNETH COLEMAN, HIS DULY AUTHORISED DELEGATE -v- AMORAN PTY LTD & ANOR [2002] WASC 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 273 | |
| Case No: | CIV:2690/2001 | 12 NOVEMBER 2002 | |
| Coram: | EM HEENAN J | 22/11/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Convictions and declarations by consent Imposition of pecuniary penalties | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER OF CUSTOMS BY RICHARD KENNETH COLEMAN, HIS DULY AUTHORISED DELEGATE AMORAN PTY LTD JOEL LAWRENCE DULLARD |
Catchwords: | Customs Smuggling, evasion of duty and false statements Civil procedure Sentencing Multiple charges Minimum penalties |
Legislation: | Customs Act (1914) (Cth), s 233(1)(a), s 234(1)(a), (b) and (c), s 244, s 247 |
Case References: | Chief Executive Officer of Customs v Coflexip Stena Offshore International SA [2001] WASC 346 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280 Chief Executive Officer of Customs v Mak & Anor [2002] WASC 235 Chief Executive Officer of Customs v Owens International Freight (Australia) Pty Ltd [2002] WASC 128 Chief Executive Officer of Customs v Pavlovich [2001] WASC 173 Chief Executive Officer of Customs v Tonmill Pty Ltd [2001] WASC 77 Controller-General of Customs v Kingswood Distillery Pty Ltd, unreported; SCt of NSW (Sperling J); 5 December 1997 L Vogel & Son Pty Ltd v Anderson (1967) 120 CLR 157 Trade Practices Commission v Allied Mills Ltd (1981) ATPR 40-241 Walsh v N & M Gangemi Nominees Pty Ltd [2001] WASC 79 Bridal Fashions Pty Ltd v Controller-General of Customs (1996) 140 ALR 681 Comptroller-General of Customs v Jayakody, unreported; SCt of Vic (Byrne J); 9 November 1993 Comptroller-General of Customs v Wong & Rizoli Pty Ltd (1998) A Crim R 491 Evans v Button (1988) 92 FLR 203 Goulding v Penello (2000) 43 ATR 179 Hayes v Weller (1988) 50 SASW 182 Lanham v Brake (1983) 34 SASR 578 Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128 Minister of State for Customs and Excise v Aunger Accessories Pty Ltd (1969) 16 FLR 94 Murphy v HF Trading Co (1973) 47 ALJR 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AMORAN PTY LTD
First Defendant
JOEL LAWRENCE DULLARD
Second Defendant
Catchwords:
Customs - Smuggling, evasion of duty and false statements - Civil procedure - Sentencing - Multiple charges - Minimum penalties
Legislation:
Customs Act (1914) (Cth), s 233(1)(a), s 234(1)(a), (b) and (c), s 244, s 247
(Page 2)
Result:
Convictions and declarations by consent
Imposition of pecuniary penalties
Category: B
Representation:
Counsel:
Plaintiff : Ms W Endebrock-Brown
First Defendant : Ms M L F Lee
Second Defendant : Ms M L F Lee
Solicitors:
Plaintiff : Australian Government Solicitor
First Defendant : Summers Partners
Second Defendant : Summers Partners
Chief Executive Officer of Customs v Coflexip Stena Offshore International SA [2001] WASC 346
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280
Chief Executive Officer of Customs v Mak & Anor [2002] WASC 235
Chief Executive Officer of Customs v Owens International Freight (Australia) Pty Ltd [2002] WASC 128
Chief Executive Officer of Customs v Pavlovich [2001] WASC 173
Chief Executive Officer of Customs v Tonmill Pty Ltd [2001] WASC 77
Controller-General of Customs v Kingswood Distillery Pty Ltd, unreported; SCt of NSW (Sperling J); 5 December 1997
L Vogel & Son Pty Ltd v Anderson (1967) 120 CLR 157
Trade Practices Commission v Allied Mills Ltd (1981) ATPR 40-241
Walsh v N & M Gangemi Nominees Pty Ltd [2001] WASC 79
(Page 3)
Case(s) also cited:
Bridal Fashions Pty Ltd v Controller-General of Customs (1996) 140 ALR 681
Comptroller-General of Customs v Jayakody, unreported; SCt of Vic (Byrne J); 9 November 1993
Comptroller-General of Customs v Wong & Rizoli Pty Ltd (1998) A Crim R 491
Evans v Button (1988) 92 FLR 203
Goulding v Penello (2000) 43 ATR 179
Hayes v Weller (1988) 50 SASW 182
Lanham v Brake (1983) 34 SASR 578
Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128
Minister of State for Customs and Excise v Aunger Accessories Pty Ltd (1969) 16 FLR 94
Murphy v HF Trading Co (1973) 47 ALJR 198
(Page 4)
1 EM HEENAN J: This is an action, commenced in the civil jurisdiction at this Court, by which the Chief Executive Officer of Customs seeks declarations that both defendants smuggled goods in contravention of s 233(1)(a) of the Customs Act; declarations that the defendants evaded payment of duty payable in respect of the smuggled goods contrary to s 234(1)(a) of the Act and further declarations that both defendants knowingly or recklessly made statements to Customs officers that were false or misleading in material particulars contrary to s 234(1)(b) of the Act. In addition, the Chief Executive Officer seeks orders convicting the defendants in respect of the offences alleged together with orders for the payment of penalties by the defendants in respect of those offences and an order for costs.
2 The defendants have admitted the offences alleged and have entered into an agreement with the Chief Executive Officer for the payment of the Customs duty evaded, a penalty amount which has been agreed subject to terms that I shall outline later, and the costs of these proceedings. The defendants have also consented to declarations being made as sought by the Chief Executive Officer and for convictions to be recorded against them. It is only necessary for the Court to consider and determine the penalties payable by the defendants under the Act for these offences. In the light of the settlement agreement reached between the parties these fines may only be enforceable in the event that the defendants, or either of them, default in complying with the terms of the agreement reached with the plaintiff.
3 Although a cause in the civil jurisdiction of this Court, this action is a "Customs' prosecution" as defined by s 244 of the Customs Act (1914) (Cth). Such a proceeding may be brought within the civil jurisdiction of the Court - s 247. Such a prosecution is a civil proceeding and the preponderance of authority is to the effect that the civil standard of proof applies. Those cases were referred to in my earlier decision in Chief Executive Officer of Customs v Mak & Anor [2002] WASC 235 where it was also noted that in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280 the Queensland Court of Appeal has held that the criminal standard of proof applies. Special leave to appeal from that decision was granted by the High Court of Australia on 26 June last and that appeal is still pending. In view of the admissions made by the defendants in this case nothing turns on the characterisation of the nature of these proceedings nor is there any issue about any applicable standard or onus of proof.
(Page 5)
4 Following the detection of some of these offences the defendants co-operated fully with the Customs officers in a lengthy and involved investigation of their importations. This led to the other offences being detected and, eventually, to the satisfactory ascertainment of the true value of the goods imported and the determination of the duty which should have been payable. In July 2002 a "settlement agreement" was executed between the plaintiff and the defendants by which the parties agreed that the plaintiff would apply by summons to this Court for declarations and orders to which the defendants would consent. The terms of those declarations and orders were to be:
(a) declarations that between about 24 August 1999 and 17 October 2000 each of Amoran Pty Ltd (Amoran) and Joel Lawrence Dullard (Dullard) smuggled goods on seven occasions in contravention of s 233(1)(a) of the Customs Act 1901;
(b) declarations that between about 24 August 1999 and 17 October 2000 each of Amoran and Dullard evaded payment of duty on seven occasions totalling $45,943.95 which was payable in respect of such goods in contravention of s 234(1)(a) of the Customs Act 1901;
(c) declarations that between about 24 August 1999 and 17 October 2000 each of Amoran and Dullard knowingly made statements to an Officer of Customs which were false or misleading in material particulars on seven occasions in contravention of s 234(1)(d) of the Customs Act 1901;
(d) convictions against Amoran and Dullard in respect of each contravention alleged in paragraphs (a) to (c) above;
(e) an order that each of Amoran and Dullard pay to the plaintiff a penalty of an amount to be determined by the Court in respect of the contraventions alleged in paragraphs (a) to (c) above;
(f) an order that Amoran and Dullard pay to the plaintiff unpaid duty in the amount of $45,943.95;
(g) an order that Amoran and Dullard do pay the costs of the plaintiff fixed in an amount of $7,000.00;
(Page 6)
- (h) an order that the action be otherwise dismissed.
5 Also, by the settlement agreement, the defendants agreed to pay and the plaintiff agreed to accept, a penalty of $95,387.72 (being the minimum penalty applicable for the offences of evasion, plus $500 for each offence of making a false statement, with no penalty for smuggling and no penalty for the second defendant) in full and final satisfaction of the penalty fixed by the court. As a result, the defendants have agreed to pay a total sum of $141,321.67 to the plaintiff representing $45,943.95 in unpaid duty, $7,000 in costs and $95,387.72 in penalties. This settlement sum is payable by two initial instalments of $26,472 on or before 31 August 2002 (which have been paid) and the balance of $95,387.72 by 36 successive monthly payments of $2,649.66 payable on or before the first day of each calendar month commencing on 1 August 2002. To secure payment of this balance the first defendant has agreed to execute and have registered a fixed and floating charge, in favour of the Commonwealth of Australia, over all its present and future assets. Subject to performance by the defendants of their obligations under this settlement deed, the plaintiff has agreed not to enforce any order made by the court for the payment of unpaid duty, penalties and costs which may be in excess of the amounts payable under the settlement agreement.
6 As has been said on many occasions in the past, the fact that these proceedings are civil in nature means that it is entirely proper for the parties to settle the proceedings on a commercial basis without, in any way, breaching the policy of the Customs Act, or of the administration of the criminal law or, in any way, detracting from the discretion of the court with regard to sentencing. I referred to the authorities supporting this in Chief Executive Officer of Customs v Mak (supra) and they include Trade Practices Commission v Allied Mills Ltd (1981) ATPR 40-241 at 43, 181; Controller-General of Customs v Kingswood Distillery Pty Ltd, unreported; SCt of NSW (Sperling J); 5 December 1997; Walsh v N & M Gangemi Nominees Pty Ltd [2001] WASC 79 (Templeman J); Chief Executive Officer of Customs v Tonmill Pty Ltd [2001] WASC 77 (Hasluck J); Chief Executive Officer of Customs v Pavlovich [2001] WASC 173 and Chief Executive Officer of Customs v Coflexip Stena Offshore International SA [2001] WASC 346.
7 Accordingly, before addressing the issues of the penalties to be determined by this Court, it is possible to proceed directly to make the declarations and record the convictions which have been agreed by the parties. I shall therefore declare that:
(Page 7)
- (a) between 24 August 1999 and 17 October 2000 the first and second defendants each smuggled goods on seven occasions in contravention of s 233(1)(a) of the Customs Act 1901;
(b) between 24 August 1999 and 17 October 2000 the first and second defendants each evaded payment of duty which was payable on seven occasions in contravention of s 234(1)(a) of the Customs Act 1901; and
(c) between 24 August 1999 and 17 October 2000 the first and second defendants each knowingly made statements to a Customs Officer which were false or misleading in material particulars on seven occasions contrary to s 234(1)(d) of the Customs Act 1901.
8 Similarly, there will be orders convicting each of the first defendant and the second defendant of the following offences:
(a) Smuggling goods on seven occasions between 24 August 1999 and 17 October 2000 in contravention of s 233(1)(a) of the Customs Act 1901;
(b) evading the payment of duty on seven occasions between 24 August 1999 and 17 October 2000 contrary to s 234(1)(a) of the Customs Act 1901; and
(c) knowingly or recklessly making statements that were false or misleading in material particulars on seven occasions between 24 August 1999 and 17 October 2000 in contravention of s 234(1)(d) of the Customs Act 1901.
9 In addition, it will be ordered that the first and second defendants do pay to the plaintiff unpaid duty in the sum of $45,943.95. Again, in accordance with the agreement between the parties, the first and second defendants will be ordered to pay to the plaintiff his cost of this action fixed at the sum of $7,000.
10 I now turn to the determination of the penalties payable by the defendants in the light of these convictions. It is necessary to outline the history of the illegal conduct and the nature of these importations for this purpose.
11 The second defendant is the sole director, secretary and shareholder of the first defendant which is a duly incorporated and Australian registered company. Between 24 August 1999 and 13 December 2000 the defendants imported into Australia, via the Port of Fremantle, 12 used
(Page 8)
- motor yachts in nine separate shipments. Most of these were luxury-style vessels. Seven of those shipments, relating to the importation of nine of these yachts, resulted in smuggling, evasion of duty and knowing or reckless false or misleading statements to Customs Officers. The dates of those importations and the number of vessels in each importation were as follows:
24 August 1999 - 1 vessel
26 September 1999 - 1 vessel
13 November 1999 - 2 vessels
26 February 2000 - 1 vessel
15 July 2000 - 1 vessel
24 September 2000 - 2 vessels
17 October 2000 - 1 vessel
For each of these shipments the defendants employed the services of a customs broker to enter the vessels with Customs. The process of entry required the lodgement of a document, known as a "Nature 10 Entry for Home Consumption", which contained information provided to the broker by the second defendant as the importer or the importer's representative. This information included the invoice price and a Custom's value of the vessels, upon which the duty and sales tax/GST owing would be calculated. Once the duty and tax was paid the imported vessels were cleared and released by Customs. The procedure followed in relation to each of the importations was similar. It is sufficient only to provide a detailed explanation of what occurred in relation to the first shipment.
12 The first importation on 24 August 1999 was of a yacht named "White Diamond". In order to enter the vessel with Customs the second defendant provided the customs broker with:
• an invoice from the overseas supplier dated 5 May 1999 stating that the "Total Price" for the vessel was HK$815,000;
• a receipt from the overseas supplier dated 26 May 1999 evidencing payment "by TT. Being full and final payment for the purchase of M/Y 'White Diamond' ";
(Page 9)
- • a copy of a Westpac Overseas Telegraphic Transfer dated 23 June 1999 evidencing payment of A$126,548 by the second defendant to the overseas supplier; and
• a copy of a Westpac Overseas Telegraphic Transfer dated 26 July 1999 evidencing a second payment of A$39,000 by the second defendant to the overseas supplier.
- With this information provided by the second defendant, the customs broker lodged the "Entry for Home Consumption" with Customs, declaring the invoice price of the vessel to be HK$815,000. As a result, customs duty and sales tax payable on the importation was calculated as $8,170.91 and $45,299.56 respectively. The second defendant paid these amounts and the vessel was released by Customs.
13 The true position was later ascertained from investigations undertaken by the plaintiff and from documents which were seized under warrant. These enquiries revealed that:
• the true purchase price of the vessel was HK$978,250;
• the Telegraphic Transfers supplied by the second defendant to the Broker and to Customs as proof of the purchase price paid did not relate to this vessel but were, instead, payments in relation to the purchase of different vessels;
• the second defendant had requested the overseas supplier to provide paperwork which would show "the deal at $850,000HK"; and
• the second defendant had assisted with the drafting of the Invoice and Receipt on the overseas supplier's letterheads (blanks were also found on his computer) on which the second defendant had written instructions indicating where to sign.
- Other evidence seized in the investigation included the true letter of offer relating to this particular vessel, correspondence between the second defendant and the supplier, and spreadsheets prepared by, and kept by, the second defendant relating to this importation. These detailed the real purchase price and related payments from which Customs was ultimately able to redetermine the Customs value of the vessel as being A$211,056.94. Based upon this corrected value, the duty payable was $10,552.85 and the sales tax payable was $58,504.98.
(Page 10)
14 The remaining six importations, by which the other eight yachts were brought into Australia, also involved under valuations upon importation by the defendants. The dates of those other importations, the Customs value as entered, the duty and sales tax/GST paid, the redetermined values upon the completion of the investigations, the correct amount of duty and sales tax/GST payable and, hence, the duty evaded for each of these is set out in tabular form in the following schedule:
(Page 11)
(Page 12)
- For each of these other importations the second defendant provided to his customs broker documents including invoices, bills of sale, bank statements, receipts and telegraphic transfers said to represent the full purchase price paid for each vessel. The information contained in these documents, or supplied by the second defendant, was incorporated into the "Nature 10 Entry for Home Consumption" forms by the customs broker and customs duty and sales tax/GST were calculated on that basis. In each case the duty was paid and the vessels were cleared. However, for each of these importations the invoices, bills of sale and receipts supplied by the second defendants were false and the telegraphic transfer forms did not in fact evidence the full amounts paid. In some cases copies of documents provided for the purposes of entry had been altered, for example, to allow a TT to be used as evidence of price paid in relation to more than one shipment.
15 Again, as a result of the investigations conducted by the plaintiff and documents seized pursuant to warrant, the true purchase price paid for each of those vessels and additional payments for duty was finally discovered. A statement on behalf of the plaintiff, that the paper trail was complex and difficult to analyse, was not challenged by the defendants. Evidently, lengthy analysis of the evidence was required. Related investigations showed complicated systems of telegraphic money transfers, in addition to cash payments, payments by purchasers from the second defendant in Australia made directly to overseas suppliers, and payments made by the overseas suppliers on the second defendant's behalf to vendors of the vessels. These revealed a sharing of profits and commissions between the second defendant and the overseas suppliers and demonstrated that the parties were not "at arms' length" and therefore not unrelated as stated on the entry forms. This lengthy investigation eventually allowed the plaintiff to redetermine the Custom's value for each vessel and so calculate the correct amount of duty and sales tax/GST payable.
16 Again, from reference to the schedule, it can be seen that the duty evaded, as a percentage of the duty payable, increased after the first shipment, peaking at 73 per cent and averaging 52 per cent across the seven shipments. The financial position with respect to duty evaded and duty payable is as follows:
Duty evaded $45,943.95
Duty payable $90,903.96
(Page 13)
17 There can be no doubt, on these facts, that these offences resulted from a deliberate and sustained pattern of conduct by the defendants involving actual fraud. It was, obviously, an attempt to secure significant commercial advantages through the evasion of duty and sales tax/GST. Due recognition should be given to the defendants for co-operating with the authorities after the discovery of the offences. While remorse is revealed by the admissions made, the acceptance of the obligation to make payments of the duty and penalties as shown by entering into the settlement agreement, these are undoubtedly serious offences. It follows that they warrant deterrent penalties, especially where the system of recovery of customs duties relies to a considerable extent upon self-assessment and where breaches of the law are difficult to detect.
18 The reasons for the legislature imposing substantial deterrent penalties for breaches of this legislation; the result of a series of separate offences being committed for various steps taken in succession in any one of the acts of illegal importation, and the irreducible minimum penalties for some of the offences have been described in many judgments of the courts in Australia. Reference to some of these is contained in Chief Executive Officer of Customs v Mak & Anor (supra) where I referred to the well-known passage in the judgment of Kitto J in L Vogel & Son Pty Ltd v Anderson (1967) 120 CLR 157 and to the decision of Scott J in Chief Executive Officer of Customs v Owens International Freight (Australia) Pty Ltd [2002] WASC 128. It is unnecessary to repeat those observations here, but they clearly apply to the facts of this case.
19 Under s 234(2)(a) of the Customs Act the penalty for each smuggling offence is up to a maximum of five times the duty payable. At the time these offences were committed the penalty was a minimum of twice the amount of duty and a maximum of five times that amount but, by virtue of the amendments effected by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth) Item 12, Sch 2 and s 4F(2) of the Crimes Act (1914) (Cth) the previous minimum penalty no longer applies. Accordingly, the applicable penalty range for the offences of smuggling in this case is from $0 to $454,519.80.
20 By virtue of s 234(2)(a) of the Customs Act the penalty for each evasion charge has a minimum of twice the amount of duty evaded and a maximum of five times that amount. In this case this means that the applicable penalty range for the evasion charges is from $91,887.90 to $229,719.75.
(Page 14)
21 For the offences of knowingly or recklessly making statements that were false or misleading in material particulars, s 234(2)(c) and s 234(3) of the Customs Act provide that the penalty is a maximum of $5,000 plus twice the duty payable. In this case this means that the penalty range for the offences of making false or misleading statements is therefore from $0 to $216,807.92 [(7 x $5,000) + (2 x $90,903.96)]. As each of the defendants has been convicted of each of the offences, both defendants are liable to the penalties including the minimum penalties.
22 Details of the range of penalties, and the minimum penalties for each of the offences by each of the defendants, are set out in the schedule of penalties which follow hereunder:
Schedule of Penalties: First Defendant
| Shipment No | False Statement s 234(1)(d) | Evasion s 234(1)(a) | Smuggling s 233(1)(a)* | |||
Min | Max | Min | Max | Min* | Max* | ||
Pty Ltd | 1 | 0 | $5,000.00 + (2x$10,552.85)= | 2x$2,381.94= | 5x$2,381.94= | 0 | 5x$10,552.85= |
$0.00 | $26,105.70 | $4,763.88 | $11,909.70 | $0.00 | $52,764.25 | ||
2 | 0 | $5,000.00+ (2x$7,787.67)= | 2x$3686.57= | 5x$3686.57= | 0 | 5x$7,787.67= | |
$0.00 | $20,575.34 | $7,373.14 | $18,432.85 | $0.00 | $38,938.35 | ||
3 | 0 | $5,000.00 + (2x$18,238.60)= | 2x$7,910.92= | 5x$7,910.92= | 0 | 5x$18,238.60= | |
$0.00 | $41,477.20 | $15,821.84 | $39,554.60 | $0.00 | $91,193.00 | ||
4 | 0 | $5,000.00 + (2x$5,530.70)= | 2x$4,030.70= | 5x$4030.70= | 0 | 5x$5,530.70= | |
$0.00 | $16,061.40 | $8,061.40 | $20,153.50 | $0.00 | $27,653.50 | ||
5 | 0 | $5,000 + (2x $14,807.66)= | 2x$6,171.06= | 5x$6,171.06= | 0 | 5x$14,807.66= | |
$0.00 | $34,615.32 | $12,342.12 | $30,855.30 | $0.00 | $74,038.30 | ||
6 | 0 | $5,000 + (2x $5,052.77)= | 2x$3,535.05= | 5x$3,535.05= | 0 | 5x$5,052.77= | |
$0.00 | $15,105.54 | $7,070.10 | $17,675.25 | $0.00 | $25,263.85 | ||
7 | 0 | $5,000 + (2x$28,933.71)= | 2x$18,227.71= | 5x$18,227.71= | 0 | 5x$28,933.71= | |
$0.00 | $62,867.42 | $36,455.42 | $91,138.55 | $0.00 | $144,668.55 | ||
AMORAN | $0.00 | $216,807.92 | $91,887.90 | $229,719.75 | $0.00 | $454,519.80 | |
(Page 15)
| Shipment No | False Statement s 234(1)(d) | Evasion s 234(1)(a) | Smuggling s 233(1)(a)* | |||
Min | Max | Min | Max | Min* | Max* | ||
| 1 | 0 | $5,000.00 + (2x$10,552.85)= | 2x$2,381.94= | 5x$2,381.94= | 0 | 5x$10,552.85= |
$0.00 | $26,105.70 | $4,763.88 | $11,909.70 | $0.00 | $52,764.25 | ||
2 | 0 | $5,000.00+ (2x$7,787.67)= | 2x$3686.57= | 5x$3686.57= | 0 | 5x$7,787.67= | |
$0.00 | $20,575.34 | $7,373.14 | $18,432.85 | $0.00 | $38,938.35 | ||
3 | 0 | $5,000.00 + (2x$18,238.60)= | 2x$7,910.92= | 5x$7,910.92= | 0 | 5x$18,238.60= | |
$0.00 | $41,477.20 | $15,821.84 | $39,554.60 | $0.00 | $91,193.00 | ||
4 | 0 | $5,000.00 + (2x$5,530.70)= | 2x$4,030.70= | 5x$4,030.70= | 0 | 5x$5,530.70= | |
$0.00 | $16,061.40 | $8,061.40 | $20,153.50 | $0.00 | $27,653.50 | ||
5 | 0 | $5,000 + (2x $14,807.66)= | 2x$6,171.06= | 5x$6,171.06= | 0 | 5x$14,807.66= | |
$0.00 | $34,615.32 | $12,342.12 | $30,855.30 | $0.00 | $74,038.30 | ||
6 | 0 | $5,000 + (2x $5,052.77)= | 2x$3,535.05= | 5x$3,535.05= | 0 | 5x$5,052.77= | |
$0.00 | $15,105.54 | $7,070.10 | $17,675.25 | $0.00 | $25,263.85 | ||
7 | 0 | $5,000 + (2x$28,933.71)= | 2x$18,227.71= | 5x$18,227.71= | 0 | 5x$28,933.71= | |
$0.00 | $62,867.42 | $36,455.42 | $91,138.55 | $0.00 | $144,668.55 | ||
Grand Total for Dullard | $0.00 | $216,807.92 | $91,887.90 | $229,719.75 | $0.00 | $454,519.80 | |
23 The plaintiff does not seek the maximum penalties in these cases because it recognises that account should be made, in favour of the defendants, for the service to the public interest in respect of costs which have been saved by the admissions made and by the settlement agreement negotiated. These have avoided the need for complicated and lengthy litigation. It is also submitted, for the defendants, that these episodes have resulted in very powerful personal deterrence although it is acknowledged that it is necessary, in the interests of public deterrence, that the legislative policy of substantial penalties should be applied.
24 I consider that penalties reflecting the gravity of the conduct of the defendants should be imposed. At the same time the totality of the penalties should acknowledge that "the offences were substantially contemporaneous and connected" - L Vogel & Son Pty Ltd v Anderson
(Page 16)
- (supra) at 168. On this basis I consider that the following penalties should be imposed:
For the first defendant Amoran Pty Ltd:
• for the nine smuggling offences, an amount of $90,903.99 being the amount of the duty payable on each charge;
• for the nine offences of evading payment of duty, the sum of $91,887.90 being twice the amount of duty evaded on each charge;
• for the nine offences of making false and misleading statements to the Customs Officers, the amount of $4,500 being $500 for each offence.
For the second defendant Joel Lawrence Dullard:
• for the nine smuggling offences, an amount of $90,903.99 being the amount of the duty payable on each charge;
• for the nine offences of evading payment of duty, the sum of $91,887.90 being twice the amount of duty evaded on each charge;
• for the nine offences of making false and misleading statements to the Customs Officers, the amount of $4,500 being $500 for each offence.
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