Chief Executive Officer of Customs v Wang Xiu
[2002] VSC 359
•26 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7058 of 2000
| CHIEF EXECUTIVE OFFICER OF CUSTOMS | Plaintiff |
| v | |
| WANG XIU JINGXIU AUSTRALIA PTY LTD | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2002 | |
DATE OF JUDGMENT: | 26 August 2002 | |
CASE MAY BE CITED AS: | Chief Executive Officer of Customs v Wang Xiu | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 359 | |
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Customs – smuggling – penalty.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E.G. de Zilwa | Australian Government Solicitor |
| For the First Defendant | In Person |
HIS HONOUR:
In this proceeding, commenced by writ in accordance with Part XIV of the Customs Act 1901 (Cth), the defendant, Mrs Wang Xiu, was charged with smuggling goods and other offences. A company, Jing Xiu Australia Pty Ltd, of which Mrs Wang together with her husband and a third person were shareholders, and of which Mrs Wang was a director, was also charged with offences against the Customs Act.
There was a mediation in February of this year. In the event, Mrs Wang acknowledged her guilt on the charge of smuggling, and in return the plaintiff, the Chief Executive Officer of Customs, agreed not to proceed with other offences against her, and not to proceed at all with offences alleged against the company.
Today, Mrs Wang, who appeared unrepresented but with the assistance of an interpreter, has admitted her guilt to the offence of smuggling ‑ an offence created by s.223(1)(a) of the Customs Act.
By s.223AB(1) the penalty applicable to the offence, in the event that the court can determine the amount of duty that would have been payable on the smuggled goods to which the offence relates if those goods had been entered for home consumption on the date of the offence where known to the court, is a penalty not exceeding five times the amount of the duty avoided. In the present case I am able to determine, by reference to the summary of facts admitted as an exhibit, and by reference to Schedule 3 of the Customs (Tariff) Act 1995 (Cth), that the amount of duty that would have been payable on the smuggled goods was $47,038.46. I do so determine.
Before proceeding to submissions made by Mr de Zilwa of counsel, for the plaintiff, and to a plea made by Mrs Wang, I should say something of the facts of this matter.
On or about 25 September 1999 a container of goods was imported into Australia from China. Customs brokers lodged an electronic entry with Customs in which a statement was made that the container contained a large quantity of artificial flowers, 6,000 bras, 4,500 handbags and an unspecified quantity of vests. A search made of the shipment after it had been initially screened showed that, in addition to the disclosed items, a substantial quantity of cigarettes were present ‑ in all, 173,800 cigarettes of one brand name and 3,800 cigarettes of another. The total weight of the cigarettes, pertinent for assessment of Customs duties, was 199.4 kilograms.
In due course enquiries by Customs led its officers to Mrs Wang and to the laying of the charge to which she has pleaded guilty.
The cigarettes, it is here convenient to say, were forfeited. Mrs Wang obtained no benefit, whether private or commercial, from their importation. Neither, of course, did she pay any Customs duty in relation to them.
Mr de Zilwa submitted that in fixing penalty it was relevant to consider whether Mrs Wang had made an early admission of guilt, whether she had made a genuine statement of remorse, whether she had co‑operated with Customs in its investigation of this matter, and whether she was a person with prior convictions or pending matters.
In connection with those matters, he submitted that whilst it was true that Mrs Wang had eventually admitted her guilt, thus saving court time and expense generally, the admission was not made until some two and a half years after the pertinent events had occurred. This was not, he submitted, a case of an early plea of guilt; though Mrs Wang was entitled to some credit for the plea eventually made.
He submitted, next, that this was not a case where the defendant had co‑operated; rather, at interviews in October 1999 and May 2000 Mrs Wang had dissembled and had given an improbable and untrue explanation of why the cigarettes had come to be in the container. She had suggested, in effect, that they were a gift from the party consigning the goods in China, a gift made knowing that she was a heavy smoker in financially straitened circumstances. That could not have been a true explanation, counsel submitted, having regard to what was evidently a disproportionately large sum paid to the party consigning the goods, and to the fact that even a heavy smoker would be occupied for many years smoking the quantity of cigarettes contained in the shipment.
Counsel alleged no prior convictions. He said nothing to suggest that any further prosecution was pending. He submitted, turning to another matter, that Mrs Wang had shown no genuine remorse. He finally argued, consistently with the improbability that the cigarettes could have been for Mrs Wang's personal use, that this was an importation intended for commercial gain.
Mrs Wang told me that she is aged 46. She has an 18 year‑old child who lives with her in Australia. She is a married woman, but she and her husband have lived apart since 1997. She has resided in Australia since December of that year, whilst her husband has lived in China. She was granted a long‑term business visa in December 1997. It expired in 2001. In July or August last year she was given 28 days to leave Australia. Since then, some appellate process has been underway. She told me that she has spent some $10,000 in connection with her immigration problems ‑ problems which remain extant to this day.
Because, as she told me, she does not currently have a visa that would permit her to work in Australia, she no longer conducts the import business which she operated in earlier years. Rather, she has a residue of goods that she imported years ago, and these she takes and sells at weekend markets.
Further as to her personal circumstances, Mrs Wang told me that she lives in rented accommodation, has an old motor car for which she paid $4,000, and has no savings ‑ having, since arriving in Australia, dissipated the savings which she had acquired from operating a business in her home city of Shanyan in China.
Mrs Wang told me that she has lived a miserable life in Australia, particularly in the last several years when she has been beset by her immigration problems and, as well, this proceeding. Apart from money paid to solicitors in connection with the Immigration matter, she said that she paid the solicitor whom she previously engaged in this proceeding some $6,000 whilst there is presently an outstanding claim by that solicitor for a further $12,500.
Mrs Wang disputed that she had been unco‑operative with respect to the subject matter of this proceeding. She said that she had attended each interview that she had been asked, and the mediation session as well. She said that her plea of guilty evidenced her co‑operation. If she had not been co‑operative, she said, she could have left Australia a long time ago, for she could go back to China at any time. That may be so; but it is also the fact that Mrs Wang, despite what she said has been a life of misery in Australia, has been persistently fighting the Immigration Department's attempt to make her leave this country.
Mrs Wang impressed upon me on a number of occasions her intention of intending to meet whatever penalty the court imposed. She did not propose a specific penalty, but made it clear that the penalty proposed by counsel for the Chief Executive Officer of Customs was too great for her to pay.
In considering what penalty should be imposed it must be relevant to consider conventional matters pertinent to sentence ‑ the need to punish the offence which has been committed, the need to deter the individual and others from commission of similar offences, and prospects of rehabilitation. Within that framework it is pertinent to consider matters such as an early admission of guilt, the presence or absence of co‑operation, the presence or absence of remorse and the personal circumstances of the offender, including the presence or absence of a history of past criminal offending.
In the present case there is no doubt that the penalty which I should impose must reflect punishment for what is an admitted offence of some importance to the revenue. The nature of the offence also makes it important to give account of deterrence, both specific, and I think more importantly in this case, general.
As to prospects of rehabilitation, the plaintiff is a woman of middle years with no past history of criminal offending, and with the commission of a single offence that brings her before the court today. Assuming that she were to remain in Australia, I should think that the prospect of her re‑offending is small. I say that although I do not accept her statement today that the commission of this offence was in the nature of a mistake. I consider it inconsistent with that statement that she should have given the answers in the course of her interviews with Customs officers which were recounted to me by counsel today. Today's explanation, I add, itself unreliable, was in marked contrast with what I am satisfied was her previously unreliable account of the matter.
Because I do not accept her statement that the commission of the offence was in the nature of a mistake, and because it follows an earlier unreliable account, I have considerable reservations about the extent of any remorse on Mrs Wang's part. Running in her favour, on the other hand, is her admission of guilt, her attendance at court, and her asserted willingness to attempt to meet whatever penalty the court imposes. Her admission of guilt, I add, entitles her to some credit notwithstanding that there was force to Mr de Zilwa's submission that the plea was not forthcoming at an early time.
Mrs Wang's personal circumstances, which I have recounted in considerable detail, must be brought to account in fixing penalty. Whatever penalty I impose, the prospect of Mrs Wang remaining in Australia is, I think, doubtful; although that, plainly enough, is not for me to decide. For present purposes it is enough to say that, on an assumption that Mrs Wang is able to remain in Australia, the picture, not disputed by the plaintiff, is of a person in somewhat difficult personal circumstances.
Apart from all the considerations which I have so far mentioned I bear in mind, in fixing penalty in this case, that by reason of a provision of the Customs Act the plaintiff is able to obtain an order for costs. I think that it is appropriate to bring that matter to some account, bearing in mind that in the ordinary criminal case the criminal does not have to pay the prosecution for the privilege of being successfully prosecuted.
What I propose to do, in all the circumstances, is to convict Mrs Wang of the offence to which she has pleaded guilty and to fix a monetary penalty of $60,000. I anticipate, having regard to the costs burden, that in the end the amount of the penalty and costs will be in the order of one and a half times the amount of the duty which was avoided.
Do you seek costs, Mr de Zilwa?
MR DE ZILWA: I do seek costs.
HIS HONOUR: The formal orders are, then, that Mrs Wang is convicted of the offence of smuggling contrary to s.223(1) of the Customs Act; that she pay a monetary penalty of $60,000 in respect of the offence of which she has been convicted, and that she pay the plaintiff's costs. I will dismiss the plaintiff's claim against the second defendant.
O R D E R
HIS HONOUR: I order that ‑
(1)The first defendant is convicted of the offence of smuggling contrary to s.223(1)(a) of the Customs Act 1901 (Cth).
(2)The first defendant pay a monetary penalty of $60,000 in respect of the offence of which she has been convicted.
(3)The first defendant pay the plaintiff's costs.
(4)The plaintiff's claim against the second defendant is dismissed.
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