Comptroller-General of Customs v Amini
[2018] VCC 327
•23 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-03211
| Comptroller General of Customs | Plaintiff |
| v | |
| Rami Ali Amini | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2018 | |
DATE OF JUDGMENT: | 23 March 2018 | |
CASE MAY BE CITED AS: | Comptroller-General of Customs v Amini | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 327 | |
REASONS FOR JUDGMENT
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Subject: COMMON LAW
Catchwords: Customs – offences – smuggling – importation of tobacco – evasion of duty – false statement – multiple offences with common elements – conviction – no appearance by defendant – deterrence – totality – repeat offender – minimum penalties
Legislation Cited: Crimes Act 1914 (Cth); Customs Act 1901 (Cth)
Cases Cited:CEO of Customs v Coulton [2005] NSWSC 869; CEO of Customs v Liang & Ors [2005] NSWSC 591; CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199; Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40; Chief Executive Officer of Customs v Lin [2007] WASC 314; Chief Executive Office of Customs v Tonmill Pty Ltd & Anor [2001] WASC 77; Goulding v Penello& Anor (1999) 43 ATR 179; Murphy, Minister of State for Customs and Excise for the Commonwealth of Australia v H F Trading Co Pty Ltd & Anor (1973) 47 ALJR 198; Pearce v The Queen (1998) 194 CLR 610
Judgment: Penalty of:
1)$3,000 for making false statements;
2)$6,000 for smuggling; and
3)$108,827.90 for evasion of duty
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Haban-Beer | Australian Government Solicitor |
| For the Defendant | No appearance (Hearing) In person (Judgment) |
HER HONOUR:
1 This is a prosecution brought under Part XIII of the Customs Act1901 (Cth) (‘the Act’) and arises out of three separate importations of tobacco products by the defendant, Mr Amini, at Melbourne Airport on 4 September 2015 (27,000 cigarette sticks); 23 October 2015 (58,850 cigarette sticks); and 28 July 2016 (13,660 cigarette sticks, 50g cigars, and 1.5kg water pipe tobacco). In respect of each importation, the defendant was charged, by way of Statement of Claim dated 6 July 2017, with three offences under the Act: smuggling goods (contrary to s 233(1)(a)); evade payment of duty that is payable (contrary to s 234(1)); and make false statement to an officer (contrary to s 234(1)(d)).
2 The maximum penalty for the smuggling of goods and evading payment of duty are referable to the amount of duty evaded, although in each case any amount of penalty exceeding 400 penalty units (or $72,000) is taken to be abandoned.[1]
[1] See s 245(2) of the Act
3 In relation to the smuggling of goods, the maximum penalty is not more than 5 times the duty payable. In this case, in respect of the first importation, the maximum penalty for the smuggling of goods is $71,679.60; the maximum penalty in respect of the second importation is $72,000; and the maximum penalty in respect of the third importation is $44,155.15.
4 In relation to the evading payment of duty, the penalty is not less than two times the amount of duty, and not more than 5 times the amount of duty. In respect of the first importation, the penalty range available is between $28,671.84 and $71,679.60. In respect of the second importation, the range is between $62,494.00 and $72,000.00. In respect of the third importation, the range is between $17,662.06 and $44,155.15.
5 The maximum penalty for making a false statement is a penalty not exceeding 250 penalty units, that is, $45,000.[2]
[2] At the time of each of the three importations, a penalty unit was to the amount of $180
6 The plaintiff was personally served with the Statement of Claim on 28 July 2017. The Summons dated 26 October 2017 which stated the hearing date of 13 December 2017 was also served on the plaintiff, although not personally.[3]
[3] See Affidavit of Laura Deschamps Ferrari affirmed 26 October 2017
7 On 13 December 2017, following the defendant’s failure to appear, the Court found the charges in the Statement of Claim proven and made orders for default judgment in favour of the plaintiff. Convictions were recorded in relation to the three incidents of smuggling goods (contrary to s 233(1)(a)); evade payment of duty that is payable (contrary to s 234(1)); and make false statement to an officer (contrary to s 234(1)(d)) as particularised in the Statement of Claim.
8 The matter was subsequently listed for penalty hearing on 20 February 2018. The plaintiff was ordered to serve on the defendant a copy of the orders made on 13 December 2017 and did so.[4] To date, there has been no application made by the defendant to set aside the default judgment.
[4] See Affidavit of Laura Deschamps Ferrari affirmed 12 February 2018
9 The plaintiff now seeks relief by way of the imposition of pecuniary penalties within the range of permissible statutory penalties as outlined at paragraphs 3, 4 and 5 above.
10 This prosecution appears to be the first matter of this kind to come before a Judge of this Court.
11 In recognition of the novelty of the prosecution, I was assisted by the plaintiff’s counsel who provided a number of relevant decisions from superior courts of other Australian States.[5]
[5] Goulding v Penello& Anor (1999) 43 ATR 179; CEO of Customs v Coulton [2005] NSWSC 869; Chief Executive Officer of Customs v Lin [2007] WASC 314; Chief Executive Office of Customs v Tonmill Pty Ltd & Anor [2011] WASC 77; Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33
12 Counsel for the plaintiff submitted that, given the nature and frequency of offending (three importations over 1 year), the charges making up each of the three importations ought to be considered as individual instances of offending, rather than a single course of conduct. It was submitted firstly that the repeated conduct of the defendant shows a consistent disregard for Customs processes and the revenue laws of Australia. Secondly, that his attitude, as evidenced by his statement to Kimberley Phillips, Australian Border Officer[6] to the effect that he normally brings back cigarettes from Iraq but never declares them because he knows that they will then be taken from him, can be appropriately characterised as an aggravating feature of his offending. Thirdly, that the defendant is a regular traveller and as such any disposition taken needed to deter him specifically from his offending conduct. Finally, that attacks on revenue affect the community at large, and therefore general deterrence is a significant factor in the imposition of penalties for such offences.
[6] Statement of Kimberley Phillips dated 8 September 2016, [22]
13 I note that the defendant has not provided any information or made any submissions concerning his personal circumstances, and I am therefore making my determination as to penalty in the absence of information concerning possible appropriate mitigating factors or the financial circumstances of the defendant.[7]
[7] Section 16C of the Crimes Act 1914 (Cth)
14 Each of the offences is a federal offence, and the determination of the appropriate sentence or order is governed by s 16A of the Crimes Act1914 (Cth). Section 16A(1) mandates the imposition of a sentence or the making of an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides a non-exhaustive list of mandatory considerations to be taken into account to the extent that they are relevant and known to the court. These include specific and general deterrence, whether the offending forms part of a course of conduct, adequate punishment, the defendant’s prospects of rehabilitation, the defendant’s co-operation with investigations, and the impact of any order on the person’s family or dependants.
15 The defendant’s non-appearance and failure to provide submissions makes it difficult to fully explore the matters as set out in Section 16A(2) of the Crimes Act. Nonetheless, I address the matters put before the Court by the plaintiff.
16 Although each importation involved three separate offences, I consider that those separate offences, within each importation, were substantially contemporaneous and connected with each other.[8] I acknowledge there is an overlap in that the same conduct satisfied the elements of one offence and constituted a set of facts essential to the proof of an element of another. In other words, the defendant is guilty of smuggling because he intended to defraud the revenue, he achieved that result by making false statements as to the value of the goods, and in making those statements he evaded payment of duty. Thus, the making of a false statement not only itself constitutes an offence, but is also conduct that is common to the offence of smuggling, and that of evasion of duty. I am therefore mindful of the need to avoid double punishment, notwithstanding the legislative intention to allow for an offender to be charged with discrete offences despite the likelihood of commonality between conduct satisfying the elements of varying customs offences.[9]
[8] See, eg, Murphy, Minister of State for Customs and Excise for the Commonwealth of Australia v H F Trading Co Pty Ltd & Anor (1973) 47 ALJR 198; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40
[9]Pearce v The Queen (1998) 194 CLR 610, [40]
17 On the other hand, I bear in mind the legislative intention implicit in the minimum penalty provided by Parliament in respect of the offence of evasion of duty. I also note that by the time of the second and third importations, the defendant was a repeat offender. There is no evidence of remorse or contrition on his part nor is there any evidence concerning his prospects of rehabilitation. The principles of just punishment as well as totality must therefore be given due weight.
18 In relation to smuggling and evasion of duty payable, the relevant sentencing considerations which emerge from the authorities referred to above include: the relative seriousness of the offending, the prevalence of the offence, the obvious difficulty in detecting breaches, the consequent need to impose deterrent penalties, and the legislative policy embodied in the relevant provisions. I take into account that the defendant has committed revenue offences on three separate occasions, over a significant period of time, and that there is no evidence of any remorse from him nor any evidence concerning his prospects of rehabilitation. I acknowledge the need for specific deterrence in these circumstances, as well as for general deterrence given the nature of customs offending and the consequences for the community at large.[10]
[10]Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33 at [27]
19 Viewed in its context, however, I consider that the defendant’s offending lacks many of the aggravating features that would ordinarily justify a pecuniary penalty at the higher end of the permissible range. Whilst I accept the plaintiff’s submission that customs officers rely on the honesty of declarations from travellers entering and leaving Australia, the defendant does not appear to have been running a particularly sophisticated or highly planned operation of deceit to evade the detection of customs officers. In relation to the third importation, the tobacco products were poorly concealed and visible upon basic examination of the defendant’s carry-on bag. Furthermore I do not consider the level of dishonesty to be at the higher end when compared to other cases of this kind.[11] The defendant relied simply on his own false declarations as to the contents of his luggage. On the material before me, there is no indication that his method for avoiding detection changed across the three importations.
[11] Cf, eg, CEO of Customs v Coulton [2005] NSWSC 869
20 I note that at the time of the third importation, when he was interviewed after the examination of his luggage, the defendant was forthcoming about his ownership of the tobacco products and the fact he had on this occasion, and on other occasions, purposefully failed to declare the tobacco products he brought back to Australia from Iraq. To this extent, he demonstrated a willingness to cooperate with authorities in their investigation.
21 I have the power under s 4K(4) of the Crimes Act to impose a single penalty in relation to the three smuggling offences and another in relation to the three false statement offences, on the basis that the offending fell into two categories of offences “against the same provision of a law of the Commonwealth”.[12] However, I note that this provision cannot be applied to the evasion of duty offences, where specific minimum penalties are prescribed.[13] I also note that courts have declined to impose a single penalty where there have been discrete episodes of offending separated by some time.[14]
[12] See s 4K(3) of the Crimes Act 1914 (Cth); CEO of Customs v Coulton [2005] NSWSC 869 at [44]-[45]
[13]Chief Executive Office of Customs v Tonmill Pty Ltd & Anor [2001] WASC 77
[14] See, especially, CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199
22 In this case, there were three importations of a similar kind, over a period of 11 months. For this reason, I consider it inappropriate to impose a single penalty in respect of either the smuggling or the false statement offences.
23 In all the circumstances, I consider it appropriate to impose the following penalties.
24 In respect of each of the charges of making of a false statement as stated in paragraphs 4, 7 and 10 of the Statement of Claim, I impose a penalty of $1,000, making a total of $3,000.
25 In respect of each of the charges of smuggling as stated in paragraphs 2, 5 and 8 of the Statement of Claim, I impose a penalty of $2,000, making a total of $6,000.
26 In respect of the charges of evading payment of duty as stated in paragraphs 3, 6 and 9 of the Statement of Claim, I impose a penalty of twice the amount of the duty, that is, $28,671.84 plus $62,494.00 plus $17,662.06, which results in a total penalty in respect of these charges of $108,827.90.
27 I will hear counsel as to the appropriate form of orders.
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