Chief Executive Officer of Customs v Tonmill Pty Ltd

[2001] WASC 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CHIEF EXECUTIVE OFFICE OF CUSTOMS -v- TONMILL PTY LTD & ANOR [2001] WASC 77

CORAM:   HASLUCK J

HEARD:   20 FEBRUARY 2001

DELIVERED          :   30 MARCH 2001

FILE NO/S:   CIV 1749 of 2000

BETWEEN:   CHIEF EXECUTIVE OFFICE OF CUSTOMS

Plaintiff

AND

TONMILL PTY LTD (ACN 009 398 467)
First Defendant

DAVID GRAHAM MAGUIRE
Second Defendant

Catchwords:

Customs - Smuggling and evasion of duty - False statements - Multiple charges - Sentencing principles - Effect of mandatory minimum penalties

Legislation:

Customs Act 1901(Cth)

Crimes Act 1914 (Cth)

Result:

Various convictions by consent
Various penalties imposed

Representation:

Counsel:

Plaintiff:     Ms M E Lindley

First Defendant             :     Mr D Vilensky

Second Defendant         :     Mr D Vilensky

Solicitors:

Plaintiff:     Australian Government Solicitor

First Defendant             :     Bowen Buchbinder Vilensky

Second Defendant         :     Bowen Buchbinder Vilensky

Case(s) referred to in judgment(s):

Bridal Fashions Pty Ltd v Comptroller‑General of Customs (1996) 140 ALR 681

Comptroller‑General of Customs v Wong & Rizoli Pty Ltd (1998) 103 A Crim R 491

Evans v Button (1988) 92 FLR 203

Goodwin v Phillips (1908) 7 CLR 1

Goulding v Penello [1999] WASC 192

L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157

Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128

Minister of State for Customs & Excise v H F Trading Co Pty Ltd (1973) 47 ALJR 198

R v Bibaoui [1997] 2 VR 600

Walsh v N and M Gangemi Nominees Pty Ltd & Anor, unreported; SCt of WA (Templeman J); 18 November 1999

Zarb v Kennedy (1968) 121 CLR 283

Case(s) also cited:

Comptroller-General of Customs v Jayakody, unreported; SCt of Vic (Byrne J); 9 November 1993

Comptroller-General of Customs v Kingswood Distillery Pty Limited & Ors, unreported; SCt of NSW (Sterling J); 5 December 1997

Hayes v Weller (1988) 50 SASR 182

Lanham v Brake (1983) 34 SASR 578

Minister of State for Customs and Excise v Aunger Accessories Pty Ltd & Ors (1969) 16 FLR 94

Trade Practices Commission v Allied Mills Pty Ltd & Ors (1981) ATPR 40-241

1. HASLUCK J:  The plaintiff, the Chief Executive Office of Customs, seeks declarations and consequential orders in relation to breaches of the Customs Act 1901 arising from the importation of goods.  The action, brought in the civil jurisdiction of the Supreme Court, was commenced by a writ of summons issued on 29 June 2000. 

2. I will begin by providing an overview of the matters before me, bearing in mind, as appears below, that the parties were able to resolve most of the matters in issue by agreement.

3. The second defendant and his wife are directors of the first defendant, Tonmill Pty Ltd.  On 36 occasions between 13 October 1995 and 23 April 1998, Tonmill imported from a company in Japan known as TBS shipments of used earthmoving equipment.  For each shipment, Tonmill used a customs agent to present a customs entry by electronic lodgement.  Customs then released the goods into home consumption.

4. It emerged subsequently as a result of Customs inquiries and the issue of warrants that false invoices had been provided to the agent by the defendants.  Upon a formal redetermination of the correct Customs value, it was established that duty of $50,930.68 had been evaded. 

5. The defendants co‑operated with the authorities in disclosing the true position.  It was against this background that a settlement was arrived at whereby the plaintiff agreed to accept the sum of $180,000, payable by instalments (including an initial instalment of $50,000 which has now been paid) in full satisfaction of the duty, fines and penalties payable by the defendants pursuant to the judgment of the Court. 

6. The settlement Deed provided for the Court to fix the penalties in accordance with the Customs Act 1901 and went on to provide that if there was any default by the defendants in payment of the instalments, the plaintiff could recover the full amount of the judgment.

7. In essence, then, it seems likely that the defendants will only be required to pay $180,000 plus agreed costs in respect of their conduct, but penalties must be determined by the Court in compliance with the Customs Act and the terms of the deed.  The ruling of the Court will underpin the default clause in the settlement Deed.  The penalties imposed by the Court will also be relevant to the administration of the Act by serving as a deterrent.

8. More specifically, the plaintiff's claim was for declarations that the first and second defendants have contravened s 233(1)(a) of the Customs Act 1901 as amended in that on 36 occasions between about 13 October 1995 and 23 April 1998 the defendants smuggled goods on which duty was payable by importing those goods with intent to defraud the revenue.

9. Section 233(1)(a) of the Customs Act provides that a person shall not smuggle any goods.  A person who contravenes that provision is guilty of an offence punishable upon conviction.  Pursuant to s 233AB(1), a penalty is prescribed not exceeding five times the amount of the duty payable and not less than two times that amount. 

10. The plaintiff also sought declarations that the first and second defendants have contravened s 234(1)(a) of the Act in that on 36 occasions between 13 October 1995 and 23 April 1998 the defendants evaded payment of duty which was payable.

11. Section 234(1)(a) provides that a person shall not evade payment of any duty which is payable. A person who contravenes the provision is guilty of an offence with the penalty prescribed in the relevant provision being a penalty not exceeding five times the amount of the duty payable and not less than two times that amount.

12. The plaintiff further sought declarations that the first and second defendants have contravened s 234(1)(d) in that on 36 occasions between about 13 October 1995 and 23 April 1998 the defendants knowingly or recklessly made statements to officers of Customs that were false or misleading in material particulars.

13. Section 234(1)(d) of the Act provides that a person shall not knowingly or recklessly make a statement to an officer that is false or misleading in a material particular. A person who contravenes that provision is guilty of an offence, with the penalty prescribed being a penalty not exceeding $5000 and twice the amount of the duty payable on the goods.

14. The consequence of Custom's prosecutions being characterised as civil in nature is that the civil standard of proof applies and the civil procedure is used:  Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128; Evans v Button (1988) 92 FLR 203; Bridal Fashions Pty Ltd v Comptroller‑General of Customs (1996) 140 ALR 681. A further consequence of this characterisation is that prosecutions may be settled on a commercial basis without breaching the policy of the Customs Act or the criminal law, or in any way detracting from the discretion of the Court with regard to sentencing:  Walsh v N and M Gangemi Nominees Pty Ltd & Anor, unreported; SCt of WA (Templeman J); 18 November 1999; Goulding v Penello [1999] WASC 192.

15. On 31 January 2001, the parties reached an agreement in the action. The agreement is reflected in the terms of a deed of agreement dated 31 January 2001. The deed provides that the parties consent to the making of declarations and the imposition of convictions for all offences outlined in the writ of summons. Penalties in respect of the convictions are reserved for determination by the Court in accordance with s 233AB(1), s 234(2)(a) and s 234(2)(c) of the Customs Act.

16. I will return to the provisions of the deed in due course.  For present purposes, it is important to note that the terms of agreement provided, among other things, that the first and second defendants admitted all the facts in the statement of facts annexed to the deed.

17. When one turns to the statement of facts, it emerges that at all times material to the action the first defendant was a corporation incorporated under the Corporations Law and carrying on business as an importer and retailer of new and used machinery and parts under the business names of Tonmill Pty Ltd, Farm & Fleet and Terraquip at 143 Chisolm Crescent, Kewdale in the State of Western Australia.  At all material times, the second defendant was a director of the first defendant.

18. The statement of agreed facts continues in these terms:

    "4.Goods imported into Australia for home consumption which are required to be entered with Customs may be so entered via the Customs computer system, COMPILE, by a registered COMPILE user as the owner, or on behalf of the owner, of the imported goods.

    5.Entries of goods imported for home consumption via COMPILE contain statements concerning the goods imported and the calculation of customs duty payable upon entry.

    6.At all times material to this action Tradewide Boeki Shokai ('TBS') was a business situated in Japan, and supplied machinery and parts to the Defendants.

    7.At all times material to this action ICS Pty Ltd trading as WB Famlonga & Associates ('Famlonga') was a licensed Customs Agent and a registered user of COMPILE.

    8.When Famlonga acted as agent for the Defendants it had the authority of the Defendants to so act.

    9.At all times material to this action Union Transport (Aust.) Pty Ltd ('Union Transport') was a licensed Customs Agent and a registered user of COMPILE.

    10.When Union Transport acted as agent for the Defendants it had the authority of the Defendants to so act.

    11.At all times material to this action Freight Management International Pty Ltd ('EMI') was a licensed Customs Agent and a registered user of COMPILE.

    12.When FMI acted as agent for the Defendants it had the authority of the Defendants to so act.

    13.At all times material to this action Scott‑Boalch (1987)('Scott‑Boalch') was a licensed Customs Agent and a registered user of COMPILE.

    14.When Scott‑Boalch acted as agent for the Defendants it had the authority of the Defendants to so act.

    15.Between about 13 October 1995 and 23 April 1998 the Defendants imported new and used machinery and new parts into Australia on 36 occasions, as particularised in the attached Schedule of Shipments ('the schedule').

    16.On or about the dates detailed in the schedule under the heading 'Date of Arrival' the Defendants imported 36 consignments of machinery and parts into Australia at Fremantle from Japan ('the goods').

    17.On or about the dates detailed in the schedule under the heading 'Date of Lodgement', the agents detailed in the schedule under the heading 'Agent', for and on behalf of the Defendants, prepared and transmitted to Customs an entry for home consumption Numbers as detailed in the schedule under the heading 'Entry Number' via the Customs COMPILE computer system in relation to the goods ('the entries').

    18.The entries contained material statements in relation to each shipment of goods as to:

    18.1.the owner of the goods as detailed in the schedule under the heading 'Owner',

    18.2.the supplier of the goods as detailed in the schedule under the heading 'Supplier',

    18.3.the Customs value of the goods as detailed in the schedule under the heading 'Declared Value',

    18.4.the Customs duty payable on the goods as detailed in the schedule under the heading 'Declared Duty'.

    19.Each entry was based on an invoice from TBS.

    20.In reliance upon the statements made in the entries, Customs duty was paid by the agents on behalf of the Defendants in the amounts as detailed in the schedule under the heading 'Declared Duty'.

    21.In reliance upon the statements made in the entries and the collection of Customs duty, ACS authorised each shipment of goods to be taken into home consumption.

    22.Each entry was false or misleading in a material particular in that:

    22.1.It stated the total Customs Value of the goods was as detailed in the schedule under the heading 'Declared Value' when in fact the total Customs Value was as detailed in the schedule under the heading 'Revised Value'; and

    22.2.It stated that Customs Duty in the amounts as detailed in the schedule under the heading 'Declared Duty' was payable on the goods when in fact Customs Duty in the amounts as detailed in the schedule under the heading 'Revised Duty' was payable on the goods.

    23.The Customs value of the goods was redetermined by an authorised Customs Officer on 10 January 2000 pursuant to the Customs Act. 1901

    24.The Defendants made the statements referred to in paragraph 18 above recklessly or knowing that they were false in the particulars stated in paragraph 22 and with an intent to defraud the Revenue by paying less than the true Customs Duty payable on the importation of the goods and to evade the payment of Customs duty which was payable.

    25.By reason of the facts stated in paragraphs 1 to 24 hereof the Defendants have contravened section 234(1 )(d) of the Act by making statements to officers of Customs that were false or misleading in material particulars in relation to the each entry."

19. The statement of agreed facts then goes on to assert that in the premises the defendants are liable to the plaintiff in respect of various contraventions.  The position in that regard is presented in this way:

    "26.In the premises:

    (a)the Defendants are liable to the Plaintiff in respect of the contraventions of section 233(1)(a) of the Act for a penalty pursuant to section 233AB(1) of the Act of not less than twice and not more than five times the duty which was payable on the goods as detailed in the schedule under the heading 'Revised Duty';

    (b)the Defendants are liable to the Plaintiff in respect of the contraventions of section 234(1)(a) of the Act for a penalty pursuant to section 234(2)(a) of the Act of not less than two times and not more than five times the amount of the duty evaded in respect of the goods by the commission of the offence as detailed in the schedule under the heading 'Duty Evaded'; and

    (c)the Defendants are liable to the Plaintiff in respect of the contraventions of section 234(1)(d) of the Act for a penalty pursuant to section 234(2)(c) and section 234(3) of the Act not exceeding $5,000 and twice the amount of duty payable on the goods as detailed in the schedule under the heading 'Revised Duty'.

20. It was against this background that the parties were able to agree upon a minute of proposed orders which is expressed in these terms:

    "1.There be a declaration that the First Defendant has contravened s.234(1)(a) of the Customs Act 1901 on thirty six occasions between 13 October 1995 and 23 April 1998 by evading payment of duty payable on used earthmoving equipment and machinery imported into Australia by the Defendants between those dates, ('the thirty six shipments').

    2.There be a declaration that the Second Defendant has contravened s.234(1)(a) of the Customs Act 1901 on thirty six occasions between 13 October 1995 and 23 April 1998 by evading payment of duty payable on used earthmoving equipment and machinery imported into Australia by the Defendants between those dates, ('the thirty six shipments').

    3.There be a declaration that the First Defendant has contravened s.233(1)(a) of the Customs Act 1901 in respect of the thirty six Shipments by smuggling those goods.

    4.There be a declaration that the Second Defendant has contravened s.233(1)(a) of the Customs Act 1901 in respect of the thirty six Shipments by smuggling those goods.

    5.There be a declaration that the First Defendant has contravened s.234(1)(d) of the Customs Act 1901 in respect of the thirty six Shipments by knowingly making a statement to a Customs officer in relation to those goods which was false in a material particular.

    6.There be a declaration that the Second Defendant has contravened s.234(1)(d) of the Customs Act 1901 in respect of the thirty six Shipments by knowingly making a statement to a Customs officer in relation to those goods which was false in a material particular.

    7.Convictions be entered against the First Defendant and the Second Defendant in respect of each contravention in paragraphs 1 and 2 above.

    8.Convictions be entered against the First Defendant and the Second Defendant in respect of each contravention in paragraphs 3 and 4 above.

    9.Convictions be entered against the First Defendant and the Second Defendant in respect of each contravention in paragraphs 5 and 6 above.

    10.The Defendants pay the Plaintiffs costs of the action fixed at the sum of $6,000.00.

    11.The action be otherwise dismissed."

21. The Deed of Agreement between the parties provides for the imposition of convictions and related orders by consent and the determination of a judgment sum in respect of the payment of duty and fines and penalties.  If the judgment sum exceeds $180,000, the plaintiff will, nonetheless, accept that amount in full and final satisfaction.  The amount due is payable by instalments and in the event of default, the plaintiff is at liberty to recover the full amount of the judgment sum.

22. The plaintiff says in his written submissions that in negotiating the settlement he gave consideration to the seriousness of the offences, the length of time over which they were committed, the likely outcome and cost of the proceedings, the defendants' co‑operation, the defendants' financial position and the plaintiff's ability to execute any judgment in excess of the settlement sum.

23. It follows from the narrative to this point that the matter left outstanding for the consideration of the Court is the question of what sentences should be imposed in respect of the various offences.  In regard to that matter, counsel for each party made various submissions relevant to the question of sentencing.  I must also note that at the hearing counsel for the defendants led evidence from the second defendant to the effect that the personal assets of he and his wife were charged to secure credit facilities with Commonwealth Bank relating to the business of the company.  There had been a severe downturn in the company's business, with the result that the company was currently running at a loss of $87,000 with little prospect of this being turned around.  The company was still importing goods from overseas, but not to the same extent as formerly.

24. The tenor of the second defendant's evidence was that he was essentially a person of good character and had co‑operated with the authorities once the transgressions came to light.  His previous record included some comparatively minor traffic offences and a conviction for fraud some years ago arising out of a dishonoured cheque.  It seems that the fine imposed by the Court of Petty Sessions for this latter offence was $150, this being an indication that the second defendant had not been involved in any significant way in a pattern of dishonesty or deceit.  The second defendant confirmed that as a consequence of obtaining an extension to his bank overdraft he had been able to make the initial lump sum payment of $50,000 prescribed by the settlement Deed.

25. The decided cases indicate that relevant considerations in respect of sentencing for Customs offences set out in s 234 of the Customs Act include the seriousness of the offence, the prevalence of the offence, the obvious difficulty of detecting breaches, the consequent need to impose deterrent penalties and the legislative policy embodied in the relevant provisions. 

26. It is convenient when considering the appropriate penalty for the offences before me to recall the reasoning of Kitto J in L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 164 to the effect that offences of this kind are in a field in which punishments for deliberate offences must be severe. The Customs laws represent the judgment of parliament upon an important aspect of the economic organisation of the community, and the object of the penal provisions is to make that judgment as effective as possible.

1. His Honour went on to say that it is important to remember that Customs officers have, of practical necessity, to rely extensively upon the information supplied to them by importers, for the flow of commerce could not be maintained if every importation had to be fully investigated.  Moreover, detection of frauds is not always easy.  No doubt, ordinary conceptions of honesty and a civic responsibility suffice to ensure a great deal of fair dealing with the Customs, but for some people little seems to matter but fear of the consequences of discovery.  The Customs Act makes those consequences potentially drastic.  It is for the courts to make them, in suitable cases, drastic in fact, for otherwise traders who are not saved by qualms of conscience from willingness to defraud their fellow citizens may weigh the profits they hope for against the penalties they have cause to fear and find the gamble worthwhile. 

2. In Minister of State for Customs & Excise v H F Trading Co Pty Ltd (1973) 47 ALJR 198 Gibbs J noted at 199 that since the decision in Vogel it is not possible for the defendants to argue that they ought not to be convicted of more than one offence in respect of each evasion of duty.  However, in imposing penalties, it is material to consider that though the offences in the group of the offences under consideration in that case were separate offences in law, they were substantially contemporaneous and connected. 

3. In Comptroller‑General of Customs v Wong & Rizoli Pty Ltd (1998) 103 A Crim R 491, Carruthers AJ affirmed that as the offences in question did not involve the same acts or omissions, it was necessary to proceed against the defendants for multiple offences. He considered it was not appropriate to impose the minimum penalty in relation to each of the offences, as to do so would offend against the principle of totality. However, the difficulty was to determine a penalty that would mitigate the effect of the statutory regime of minimum and maximum penalties without doing disservice to the legislature's intent.

4. This dilemma is reflected in a number of the cases.  Application of the one transaction rule would usually result in some amelioration of penalties, no matter how many charges were brought, but it seems that because of the minimum penalty provisions in the Customs Act, the Court is unable to apply that rule. 

5. Heenan J arrived at this conclusion in the recently decided case of Goulding v Penello [1999] WASC 192. In that case, charges were brought pursuant to the Customs Act concerning the importation of cycling shoes from France.  Duty was avoided in respect of various shipments and this led to six charges of smuggling, six charges of evading payment of duty, four charges of obtaining non‑payable refunds and 10 charges of making false statements.  Over a period of more than six months, the importer defrauded, or attempted to defraud, Customs of $100,433.43 by deliberately seeking to mislead Customs officers, and his broker, into believing that the cycling shoes which he imported fell within the terms of the relevant tariff concession order.  Put shortly, he obtained a non‑repayable refund of $34,173.39 by making a false statement and evaded payment of a total of $66,260.04 in duty by smuggling and making a false statement in relation to the smuggled goods. 

6. Heenan J noted that, in effect, the obtaining of the refund was the product of one transaction only.  The eight charges brought in respect of that transaction, though relating to separate offences in law, were substantially contemporaneous and connected.  Likewise, the evasion of the duty was the product of six transactions.  In the event, Heenan J held that the minimum penalty provisions in the Customs Act required that separate convictions be recorded in respect of each offence and penalties be imposed accordingly.

7. His Honour gave due weight to the principles to be derived from Vogel concerning the need for deterrence and drastic penalties, but was, nonetheless, of the opinion that the multiplicity of charges could be regarded as oppressive to some degree, with the result that when the situation was viewed in its entirety, there was a basis for the imposition of a low penalty in respect of the 10 offences of making a false statement, being the offences, as in the present case, which, pursuant to s 234(1)(d), attracted a maximum penalty not exceeding $5000 and twice the amount of the duty payable on the goods, but did not attract a prescribed minimum penalty.

8. Against this background, and bearing in mind that the total amount of the duty properly payable in respect of all 10 shipments was $100,430.43, his Honour imposed a penalty of $143,520.08 in respect of the six smuggling offences.  He imposed an additional penalty of $68,346.78 in respect of the four offences of obtaining a non‑repayable refund.  In respect of the 10 offences of making a false or misleading statement, he imposed an additional penalty of $500 only, this nominal penalty for the latter offence being clearly referable to his earlier observations that in certain circumstances the multiplicity of charges could be oppressive.  Accordingly, in that case, the penalties amounted to a total of $333,886.94. 

9. I digress briefly to note that in Goulding v Penello (supra) counsel for the defendants sought to persuade Heenan J that the overall effect of the so‑called multiplicity of charges could be alleviated by the application of s 4K of the Crimes Act.  That provision allows for charges against the same person for any number of offences against the same provision of a law of the Commonwealth to be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. 

10. Section 4K(4) of the Crimes Act provides that if a person is convicted of two or more offences pursuant to the provision just mentioned, the Court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. 

11. Heenan J noted in Goulding v Penello (supra) at par 18 that in R v Bibaoui [1997] 2 VR 600 the Court of Appeal of Victoria had held that these provisions did not apply to indictable offences, but were confined to summary offences. Heenan J went on to say that even if that was not the correct view, in his opinion, the provisions of s 234(2)(a) of the Customs Act clearly specified a minimum penalty of twice the amount of duty which would have been evaded by the commission of the offence.  In those circumstances, the Court was required to apply that penalty. 

12. He said further that had the legislature intended otherwise, it would have provided for a maximum but no minimum penalty, as it had done in s 234(2)(c) (relating to the offence of making a false or misleading statement).

13. In the opinion of Heenan J, as is the case with s 20 of the Crimes Act (see Zarb v Kennedy (1968) 121 CLR 283 per Barwick CJ), s 4K of the Crimes Act must yield to any contrary intention to be found expressly or by necessary implication in a statute creating a particular offence.  It was clearly the intention of parliament that the offence of evasion of payment of duty should be punished, upon conviction, by the minimum penalty specified and that the penalty could not and should not be diminished in any way. 

14. Counsel for the defendants in the present case renewed the attempt to rely upon s 4K of the Crimes Act as an avenue to ameliorate the harsh effect of a multiplicity of offences and submitted that Heenan J did not expressly, in Goulding v Penello (supra), exclude the application of s 4K of the Crimes Act. I have to say, however, on my reading of the judgment in the case in question, Heenan J did conclude that s 4K could not be applied to offences under the Customs Act where specific minimum penalties were prescribed. 

15. Further, and in any event, I consider that the reasoning of Heenan J is persuasive, namely, that the general enactment must yield to the statute creating a particular offence.  This approach is consistent with the rule of interpretation that where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, insofar as it is inconsistent with the special provision, must be deemed not to apply:  Goodwin v Phillips (1908) 7 CLR 1 at 14.

1. Accordingly, I consider that I am bound to record convictions in respect of each of the separate offences and to impose individual penalties in relation to the same.  In his written submissions, the plaintiff submitted to the Court a schedule of penalties referable to the penalties prescribed by the statutory provisions mentioned earlier and the circumstances of the present case, including the duty payable, and the amount of duty evaded, namely, $50,930.68.  It is apparent from earlier discussion that the charges are brought against each of the defendants and the schedule has been prepared accordingly.  Counsel for the defendants did not take any objection to the calculations disclosed in the schedule and it will therefore be useful to set out the schedule in its entirety as follows:

1. I must now return to the circumstances of the present case.  It follows from earlier discussion that in the context of a field of economic activity in which the personal integrity of those involved is crucial, I must take account of the seriousness of the present offences and the presence of a pattern of dishonesty over a three‑year period.  Severe penalties are undoubtedly called for.  However, I must also take account of the defendants' co‑operation and of the present financial circumstances of the defendant company and its directors.  I have already noted that by and large the second defendant is a person of good character and neither of the defendants have any prior record in regard to offences of this kind. 

2. I consider that I am also entitled to take account of the fact that a settlement has been negotiated in which careful consideration has been given to the amount payable and to matters of a kind that are usually taken into account when matters of sentencing arise. 

3. Further, my review of the decided cases, including especially the decision of Heenan J in Goulding v Penello, indicates that although I am obliged to impose penalties in respect of each offence for which a minimum penalty is prescribed, it is permissible to acknowledge that the penalties to be imposed arise from a multiplicity of charges having a connection in that the importations were arranged with one supplier and effected within a confined period of time.  This will have a bearing upon the fixing of an appropriate penalty within the range between minimum and maximum penalty and will also have a bearing upon the false statement defences in respect of which no minimum penalty is prescribed. 

4. I must also take account of the fact that the amount of duty evaded was the sum of $50,930.68 and that the amount in question, in essence, has now been paid pursuant to the provisions of the settlement Deed. 

5. It is apparent from the schedule of penalties that in a case such as this where there are multiple offences, with various offences being referable to each shipment, imposition of penalties close to the maximum for each offence would produce an extraordinary result.  I recognise that severe penalties must be imposed, but this recognition must obviously be tempered to some degree by the realities of the situation.  I emphasise that in most other cases of this kind it would certainly not be appropriate to impose minimum penalties in respect of the various offences and to impose a comparatively light financial penalty in respect of a false statement.  Indeed, in general terms, the expectation must be that a significant penalty will be attached to the making of a false statement, bearing in mind, as appears from the schedule of penalties, that the maximum penalty is a penalty not exceeding $5000 and twice the amount of the duty payable on the goods. 

6. Nonetheless, after taking account of what was said by Heenan J in Goulding v Penello (supra) and my earlier observations concerning the multiplicity of charges, and the presence of the negotiated settlement, I consider that, consistently with the figures depicted on the schedule of penalties, I should impose the minimum penalty in respect of the 36 smuggling charges, with the result that the sum of $171,065.80 is payable in respect of those charges.  I will impose the minimum penalty in respect of the 36 evasion charges, with the result that the sum of $101,861.36 is payable in respect of those charges.  I will impose a penalty of $200 for each of the 36 false statement charges, with the result that the sum of $7,200 is payable in respect of those charges.

7. In summary, then, formal orders will be made in terms of par 1 to par 11 inclusive of the minute of proposed orders referred to earlier, which orders include provision for the defendants to pay the plaintiff's costs of the action fixed in the sum of $6000.  The penalties previously mentioned will be imposed in respect of the various offences for which convictions are recorded, with the result that the amount due to the plaintiff by each defendant pursuant to the judgment of the Court in respect of the penalties imposed is $280,127.16.  I will hear from the parties as to whether any further orders are required.