Comptroller General of Customs v El Hawli
[2022] VCC 1687
•13 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION[1] | Revised Not Restricted Suitable for Publication |
[1]The proceedings allege criminal offences but are initiated through the Civil Rules of practice, procedure and pleading as provided by sections 245(1)(d) and 247 of the Customs Act 1901 (Cth).
Case No. CI-21-00604
| COMPTROLLER GENERAL OF CUSTOMS | Plaintiff |
| v | |
| Defendant | |
| MOHAMED EL HAWLI |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2022 | |
DATE OF SENTENCE: | 13 October 2022 | |
CASE MAY BE CITED AS: | Comptroller General of Customs v El Hawli | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1687 | |
REASONS FOR JUDGMENT AND SENTENCE
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Subject:COMMON LAW – PROCEEDINGS TO PROSECUTE OFFENCES UNDER THE CUSTOMS ACT 1901
Catchwords: Guilty plea by Defendant to smuggling tobacco in luggage contrary to s233(1)(a) of the Customs Act 1901 (Cth) (“the Act”) and to making false statement on Incoming Passenger Card contrary to s234(1)(d) of the Act – 129 kilograms of water pipe tobacco and 1,200 cigarette sticks smuggled – Gravity of offending – Relevant sentencing factors considered – Factors relevant to imposition of monetary penalties
Legislation Cited: ss16A, 16C, 19B Crimes Act 1914 (Cth); ss4, 233(1)(a), 234(1)(a), s234(2)(c), 245, 247 Customs Act 1901 (Cth); s19AB, Ch 24, Sch 3 Customs Tariff Act 1995 (Cth); Notice of Substituted Rates of Customs Duty for Excise-Equivalent Goods - Notice (No. 2) 2018; Quarantine Act 1908 (Cth)
Cases Cited:Chief Executive Officer of Customs v Coulton [2005] NSWSC 869; Chief Executive Officer of Customs v Jing [2007] NSWSC 1354; Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33; Chief Executive Officer of Customs v Nasher (2002) 130 A Crim R 148; Comptroller General of Customs v Amini [2018] VCC 327; Comptroller General of Customs v Haidary [2018] VCC 848; Comptroller General of Customs v Robson [2022] VCC 547; DPP (Cth) v Thomas [2016] VSCA 237; Kim v The Queen [2016] VSCA 238; Goulding v Penello & Anor (1999) 43 ATR 179; L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157; Lanham v Brake; Van Velsen v Brake; Van Velsen v Dielos (1983) 34 SASR 578; Markarian v The Queen (2005) 228 CLR 357; Chief Executive Officer of Customs v Tonmill Pty Ltd (2001) 160 FLR 1; Mohamed v The Queen [2022] VSCA 136; R v Carroll [1991] 2 VR 509; Worboyes v The Queen [2021] VSCA 169
Sentence: Judgment entered in favour of Plaintiff – Defendant convicted and sentenced to pay financial penalty of $4,000.00 in respect of smuggling offence and $1,000.00 in respect of offence of making false statement
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APPEARANCES: | Counsel | Solicitors |
| For the Comptroller General of Customs | Ms A Haban-Beer | Australian Government Solicitor |
| For the Accused | Mr E Dober | FE Lawyers |
HER HONOUR:
1The Defendant, MOHAMED EL HAWLI, is to be sentenced in respect of one charge of smuggling goods contrary to s233(1)(a) of the Customs Act 1901 (Cth) (“the Act”) and one charge of making a false statement to an officer contrary to s234(1)(d) of the Act.
2The maximum applicable penalties are as follows:
(a) On smuggling goods – a penalty not exceeding 5 times the amount of the duty payable on the smuggled goods (ss233(1AA)(a) and 233AB(1)(a)(i)). Although, as shall be explained, the Customs duty payable on the goods smuggled was $119,109.43, making the prima facie maximum penalty a fine of up to $595,547.15, by virtue of the fact that the proceedings were commenced in this Court the amount of the penalty exceeding 400 penalty units (ie $84,000) is taken to have been abandoned (s245(1)(d) and (4)). Thus the maximum available penalty for this charge is capped at $84,000.
(b) On making a false statement – 250 penalty units, equating to $52,500 (s234(2)(c)).
3The Defendant pleaded guilty to the charges when they were put to him before me on 3 October 2022.
Circumstances of offending
4On 27 August 2018 the Defendant arrived in Australia with members of his family at Melbourne International Airport, having travelled from Kuala Lumpur on Air Asia flight D7212.
5Upon disembarking the flight, the Defendant had in his possession or control a number of pieces of luggage including four (4) small black soft-sided suitcases, one (1) large black soft-sided suitcase, one (1) small soft-sided Louis Vuitton suitcase, two (2) large black soft-sided suitcases, and one (1) large pink soft-sided suitcase (“luggage”). Some of the items of luggage in the Defendant’s possession and under his control belonged to members of his family group.
6The Defendant presented a pro forma Incoming Passenger Card to Australian Border Force (“ABF”) Officer Allan Gatt. He had signed the Incoming Passenger Card. The card contained the following direction:
“PLEASE x AND ANSWER EVERY QUESTION — IF UNSURE, Yes x”.[2]
[2]Exhibit B – copy of Incoming Passenger Card signed by the offender
7In response to the question on the card that asked “Are you bringing into Australia …More than …25 cigarettes or 25g of tobacco products” – the Defendant crossed the box “No.”[3]
[3]Ibid – Question 2
8Officer Gatt questioned the Defendant about the responses marked on his Incoming Passenger Card and about the contents of his luggage. The Defendant told Officer Gatt that it was his card and that he had signed it. The Defendant said that he had read the card and understood all of the questions contained in it. The Defendant stated that the luggage was his and had been packed by him and by members of his family. The Defendant acknowledged that he was aware of the contents of the luggage.
9When Officer Gatt asked the Defendant about the contents of the luggage, the Defendant told him that there were boxes containing a herbal product that he had purchased in Malaysia. The Defendant failed to declare that there was a quantity of tobacco products in the luggage. The Defendant was then cautioned and administered his rights in accordance with Part 1C of the Crimes Act 1914 (Cth).
10ABF officers then searched the Defendant’s luggage. In it they found a considerable amount of tobacco products. In particular, they located:
(a) 123 packages of water pipe tobacco, commonly known as molasses tobacco. Each package contained 1 kilogram of tobacco;
(b) 6 boxes of molasses tobacco. Each box contained 1 kilogram of tobacco; and
(c) 6 cartons of cigarettes.
11In total, the Defendant was found to be in possession of 129 kilograms of molasses tobacco and 1,200 cigarette sticks. It was not until the luggage was being or had been x‑rayed that the Defendant admitted that the luggage contained tobacco products.
12The Defendant knew that the luggage contained the tobacco products as he was the one who imported them. By his pleas, the Defendant acknowledged that he did so with the intention of avoiding the duty that would have been payable on them.
13The tobacco products were seized and the Defendant was interviewed by ABF officers at the airport.
14The charge of smuggling goods relates to the Defendant’s importation into Australia of the tobacco products to which I have referred with intent to defraud the revenue by evading the duty that would have been payable on them.[4]
[4]“Smuggling” is defined in s4 of the Customs Act 1901 (Cth) as meaning “any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue”.
15The charge of making a false statement to an officer relates to the statement the Defendant made to ABF Officer Gatt, reckless as to fact that the statement was false in a material particular: namely, that in the Incoming Passenger Card he produced to Officer Gatt the Defendant declared that he was not bringing into Australia more than 25 cigarettes or 25 grams of tobacco products, when his luggage in fact contained 129 kilograms of water pipe tobacco and 1,200 cigarette sticks.
Duty payable
16I note that a charge of evading the payment of duty contrary to s234(1)(a) of the Act was withdrawn. The Defendant will not be punished for that crime. Nevertheless, it is relevant to know the amount of duty that would have been payable had the Defendant declared the goods.
17The water pipe tobacco located in the luggage is a tobacco product intended for smoking in a water pipe, being water pipe tobacco[5].
[5]Within the meaning of item 2403.11.00 of Ch 24 of Sch 3 to the Customs Tariff Act 1995 (Cth)
18As at 27 August 2018, the rate of Customs duty payable in relation to water pipe tobacco was $916.72 per kilogram.[6]
[6]Section 19AB and sub heading 2403.11.00 at Ch 24 of Sch 3 to the Customs Tariff Act 1995 (Cth) and Notice of Substituted Rates of Customs Duty for Excise-Equivalent Goods - Notice (No. 2) 2018
19The cigarette sticks located in the luggage are cigarettes containing tobacco not exceeding in weight 0.8 grams of tobacco per stick.[7]
[7]Within the meaning of item 2402.20.20 at Ch 24 of Sch 3 to the Customs Tariff Act 1995 (Cth)
20As at 27 August 2018, the rate of Customs duty payable in relation to cigarette sticks was $0.71046 per stick.[8]
[8]Section 19AB and sub heading 2402.20.20 at Ch 24 of Sch 3 to the Customs Tariff Act 1995 (Cth) and Notice of Substituted Rates of Customs Duty for Excise-Equivalent Goods - Notice (No. 2) 2018
21The total Customs duty payable in relation to the imported tobacco was $119,109.43 made up as follows:
(a) 129 kilograms of water pipe tobacco at $916.72 (the rate of Customs duty), a total of $118,256.88, and
(b) 1,200 cigarette sticks at $0.71046 (the rate of Customs duty), a total of $852.55.
22The Defendant elected to forfeit the goods and not pay the Customs Duty.
Apprehension and interview
23The Defendant was not arrested, but he was formally questioned at the airport about the tobacco products he had imported in the luggage. The Defendant told ABF officers that he did not complete the Incoming Passenger Card, but agreed that he had signed it. The Defendant said that the goods were not imported for sale. He said that he had intended to keep 15 kilograms for his personal use and that he intended to give the rest away as gifts to members of his family. The Defendant said that he had paid $1,200 for the goods in Malaysia. He indicated that he would pay the duty, but when it was calculated to be $118,256.88 he decided to forfeit the goods.
Gravity of offending
24In Chief Executive Officer of the Australian Customs Service v Karam (No 2)[9] where the offender had committed the offences of
[9][2013] NSWSC 33
(a) importing prohibited imports contrary to s233(1)(b) of the Customs Act, namely, 12,926.20 kilograms of unmanufactured (leaf) tobacco that had not been stemmed or stripped; and
(b) making a false statement to an officer of Customs contrary to s234(1)(d)(i) of the Act,
McCallum J observed:
“10Each of the offences is a federal offence. Accordingly, the determination of the appropriate sentence or order is governed by s 16A of the Crimes Act 1914 (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. …
11Section 16C of the Crimes Act provides that, before imposing “a fine”, the Court must take into account the financial circumstances of the offender in addition to any other matters the Court is required or permitted to take into account. It appears to be accepted that the term “fine” in that provision includes a penalty under the Customs Act: see Chief Executive Officer of Customs v Jing [2007] NSWSC 1354 at [25] per Howie J.
…
14The nature of customs offences is well rehearsed in the authorities. The legislative policy underlying the penalty provisions of the Customs Act was considered by Kitto J in L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 164.4, where his Honour said:
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.
15More recently in Chief Executive Officer of Customs v Coulton [2005] NSWSC 869, Simpson J (at [32]) emphasised the requirement that penalties imposed for such offences reflect “the serious inroads made on the revenue by customs offenders”, calling for a stern approach so as to render customs offending “a very unattractive proposition”….”[10]
[10]Ibid at paragraphs [10] and [11]; [14] and [15]
25His Honour added:
“… it is clear in my view that Customs Act offences are not to be regarded as victimless crimes…”[11]
[11]Ibid at paragraph [27]
26In Lanham v Brake; Van Velsen v Brake; Van Velsen v Dielos,[12] a case in which the offenders had brought plants into Australia concealed in their luggage and had produced a false document (passenger card), Cox J discussed the factors to be taken into account when sentencing for offences under the Quarantine Act 1908 (Cth). His Honour observed:
“…In the case of these quarantine offences, the relevant considerations will include the seriousness of the offence, its prevalence, the obvious difficulty of detecting breaches under disembarking conditions in which it is quite impracticable to examine the luggage of every passenger, and the consequent need to impose penalties for typical breaches that will make people think twice before trying to slip their small packages of fruit or cooked meat or vegetable seeds through the random Customs check. It is also an important consideration that these offences are commonly committed by persons who are of generally good character.”[13]
[12](1983) 34 SASR 578
[13]Ibid at 585
27In assessing the gravity of the offence of smuggling tobacco products, the matters that I consider should be taken into account include:
(a) the seriousness of the offence;[14]
[14]Chief Executive Officer of Customs v Tonmill Pty Ltd (2001) 160 FLR 1, at paragraph [25]
(b) the prevalence of the offence;[15]
[15]Ibid at paragraph [25]
(c) the involvement of the offender in the steps taken to effect the act of smuggling;
(d) the level of planning, method and sophistication involved;
(e) whether the offender has involved others in the offending, either as innocent agents or as complicit participants;
(f) the quantity of goods smuggled;
(g) motive, if known, although because intention to defraud the revenue is an element of the offence of smuggling it may be presumed that the offence was motivated for financial advantage in the form of evasion of the payment of duty;
(h) whether the goods were intended to be used for a commercial purpose or for personal use;
(i) the amount of duty that would have been payable on the smuggled goods;
(j) whether the goods are prohibited imports;
(k) whether the particular offence is in the worst category of its type;
(l) the difficulty of detecting smuggling offences and the impracticability of searching every passenger who arrives at the airport;[16]
(m) the age and maturity of the offender;
(n) prior good character may be of less relevance as good character is not an unusual characteristic of persons who travel abroad. Persons of good character may be less likely to attract the attention of authorities;
(o) the significance of deterrence; and
(p) the need to give effect to the policy underlying the relevant legislative provisions.[17]
[16]Ibid at paragraph [25]
[17]Ibid at paragraph [25]
28It must also be noted that the obligation to honestly complete Incoming Passenger Cards is a vital tool in the protection of Australia’s revenue, Customs and quarantine laws. Customs and Border Control officers use the information contained in forms such as Incoming Passenger Cards to perform their duties not only to protect the revenue, but also to detect and prevent the entry of prohibited and/or dangerous goods into Australia. As Kitto J observed in L Vogel & Son Pty Ltd v Anderson:[18]
“… 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 of 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.”[19]
[18](1968) 120 CLR 157
[19]Ibid at 164
29In determining the sentences to be passed or the orders to be made I must impose sentences or make orders that are of a severity appropriate in all the circumstances of the offences.[20]
[20]s16A(1) Crimes Act 1914 (Cth)
30In addition to the matters to which I have earlier referred as relevant to the particular offences, in general there are many factors that I must take account of when sentencing the Defendant, including:
1.Principles of general deterrence;[21]
[21]s16A(2)(ja) Crimes Act
2.The nature and circumstances of the offences[22] including the Defendant’s moral culpability;
[22]s16A(2)(a) Crimes Act
3.The maximum applicable penalties;[23]
[23]See Markarian v The Queen (2005) 228 CLR 357: The maximum penalty serves as a yardstick to enable a comparison between the case before the court and the worst case scenario.
4.The personal circumstances of any victim of the offences;[24]
[24]s16A(2)(d) Crimes Act; and see the observations made by McCallum J in Chief Executive Officer of the Australian Customs Service v Karam (No 2) (supra) referred to in these reasons for sentence: “…Customs Act offences are not to be regarded as victimless crimes”
5.Any injury, loss or damage resulting from the offences;[25]
[25]s16A(2)(e) Crimes Act
6.The degree to which the Defendant has shown contrition for the offences;
a. by taking action to make reparation for any injury, loss or damage resulting from the offences;[26] or
[26]s16A(2)(f)(i) Crimes Act
b. in any other manner;[27]
[27]16A(2)(f)(ii) Crimes Act
7.The fact that the Defendant has pleaded guilty to the charges;[28]
[28]16A(2)(g) Crimes Act
8.The social utility inherent in the guilty pleas[29] particularly during the period of the COVID-10 pandemic;
9.The degree to which the Defendant has cooperated with law enforcement agencies in the investigation of the offences;[30]
10.The deterrent effect that any sentence or order under consideration may have on the Defendant;[31]
11.The need to ensure that the Defendant is adequately punished for the offences;[32]
12.The Defendant’s character, antecedents, age, means and physical or mental condition;[33]
13.The Defendant’s prospects of rehabilitation;[34]
14.The probable effect that any sentence or order under consideration would have on any of the Defendant’s family or dependants;[35]
15.Delay;
16.Principles of totality;[36] and
17.Principles of parsimony.[37]
[29]See DPP (Cth) v Thomas [2016] VSCA 237, applied in Kim v The Queen [2016] VSCA 238
[30]s16A(2)(h) Crimes Act
[31]s16A(2)(j) Crimes Act
[32]s16A(2)(k) Crimes Act
[33]s16A(2)(m) Crimes Act
[34]s16A(2)(n) Crimes Act
[35]s16A(2)(p) Crimes Act – also note family and family members include de facto partner, child as defined in section 3, and anyone else who would be a member of the offender’s family as defined – see 16A(4). Proof is not required that exceptional circumstances exist before this factor can be taken into account –see Mohamed v The Queen [2022] VSCA 136
[36]Chief Executive Officer of Customs v Nasher (2002) 130 A Crim R 148
[37]s17A(1) Crimes Act and see R v Carroll [1991] 2 VR 509
Plea in mitigation
31I now turn to the matters advanced on behalf of the Defendant by his counsel, Mr Dober, in mitigation of penalty.
Objective gravity
32Mr Dober acknowledged the gravity of the Defendant’s offending and the significance of general deterrence as a sentencing objective. He conceded that in all the circumstances it would not be open to make an order discharging the Defendant without conviction under s19B of the Crimes Act. He submitted, however that the Defendant’s offending cannot be categorised as the worst example for this type of offence.
33Mr Dober noted that the Defendant did not complete the Incoming Passenger Card,[38] however the Defendant adopted and signed the card as being accurate. The Defendant travelled with other family members who arrived at Melbourne Airport with him. The Defendant’s group comprised of his wife, his mother, his sister and brother-in-law, and there were younger members of the party. In total there were five adults. The tobacco products were distributed among the bags of various members of the Defendant’s group. The goods were his, and he did not seek to cast the blame on anyone else.
[38]In the record of interview the offender told ABF officers that his middle sister completed the form
Personal circumstances
34The Defendant is currently 31 years of age. At the time of offending he was aged 27. He is married and has three sons. His eldest child is aged 5 years, and he has twins aged one year.
35The Defendant is the sole breadwinner in his family. He is self-employed and has been so for all of his working life.
36For the last five years the Defendant has operated a kebab shop at Southern Cross Station in the Melbourne CBD. He works long hours and employs five staff members on a casual basis. The Defendant works seven days a week, usually 95 hours per week. His day starts at 5am with prayers at the Mosque followed by commencing work at the kebab shop at 6am. The Defendant’s working day ends at approximately 8 or 9pm.
37Over the COVID-19 period the Defendant’s business struggled, almost sending him bankrupt, particularly during times of lockdown and curfew. The Defendant did the best he could, drawing on his savings to keep the business afloat. The business is recovering, although the Defendant has faced difficulties in finding staff. This has meant even greater working hours for him.
38The Defendant is well-educated and has achieved a Bachelor of Arts and a Master of International Community Development.[39]
[39]Exhibit 3
Guilty plea
39The Defendant has pleaded guilty to the charges and is entitled to have that fact taken into account in his favour. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to the guilty pleas I take into account the following factors:
· the timing of the pleas – the pleas were offered very shortly before the matter was to come to trial;
· the matter was resolved following negotiations resulting in the withdrawal of a charge previously preferred against the Defendant;[40]
· even though the Defendant’s pleas did not come at the earliest opportunity, he is nevertheless entitled to a statutory sentencing discount;
· the Defendant has avoided the cost of a trial and has spared witnesses the inconvenience of giving evidence at trial; and
· there is social utility inherent in the pleas of guilty. This factor must be given additional weight during the current period of the COVID-19 crisis, which has had considerable negative impact upon the justice system.[41]
[40]The charge of evading the payment of duty contrary to s234(1)(a) of the Act was withdrawn on the day of the plea hearing, as was the associated prayer for relief – leave was granted to withdraw paragraph 3 of the Amended Statement of Claim dated 18 March 2021 and paragraph 2 of the prayer for relief.
[41]Worboyes v The Queen [2021] VSCA 169, particularly at paragraphs [34]-[39]
Admissions
40Although the Defendant did not acknowledge that he had imported tobacco products in his luggage until the luggage was x-rayed, he later made full admissions to ABF officers in the course of the formal interview.
Prior good character and contribution to the community
41The Defendant is a man of prior good character and enjoys a good reputation in the community, matters I shall count in his favour.
42A number of references were tendered attesting to the Defendant’s good character.[42]
[42]Exhibit 2, reference from Adnan Mir, Premier Professional Partners, Certified Practicing Accountants & Business Advisors, undated; Unsigned reference from Imam Abdulla Hawari dated 28 September 2022; and reference from Dr Nezor Houli dated 29 September 2022
43There is also evidence of the Defendant’s commitment to his community by way of the volunteer work he does for youth. He has been an excellent role model for and leader to the young members of his Mosque.[43]
[43]Exhibit 2, reference from Imam Abdulla Hawari and reference from Dr Nezor Houli
44As part of his Master of International Community Development Degree, the Defendant also did volunteer work for disadvantaged members of the community.
Remorse
45The Defendant has expressed remorse to his Imam, who wrote:
“Mohamed and I have spoken at length regarding the unfortunate circumstances he found himself in with the law. Mohamed deeply regrets his actions and the position he has currently found himself in. He is quite distressed as to the repercussions of the actions and I have encouraged him to continue in his role supporting the youth despite this matter given his great remorse.”[44]
[44]Exhibit 2
46Dr Houli wrote:
“[Mohamed] is a decent, hard-working and trustworthy person. I truly believe Mohamed regrets his actions and the current situation he is facing. He has expressed this to me on several occasions. The matter came as a surprise to me as it is very out of character for him.”[45]
[45]Exhibit 2
47I accept that the Defendant is remorseful.
Delay
48There has been significant delay in charges being brought. The Defendant was interviewed at the airport on 27 August 2018, the day he smuggled the goods and made the false statement. It was not until 17 February 2021 that the plaintiff filed the Statement of Claim. I was told by Ms Haban-Beer, who appeared on behalf of the Plaintiff, that part of this delay was due to advice being sought by the Plaintiff as to whether the Defendant should be charged in the Magistrates’ Court or face proceedings in this Court. Even so, the delay between commission of the offences and the initiation of proceedings is lengthy. The Defendant is not responsible for this period of delay.
49Once proceedings were instituted there was delay caused on the Defendant’s part, with a number of applications being made for the extension of time within which to comply with procedural requirements.
50What is important is that for some time, the worry of the proceedings has been hanging over the Defendant’s head. In that period, there has been no further offending.
Factors relevant to the imposition of fines
51Before imposing a fine the Court must take into account the Defendant’s financial circumstances in addition to any other matters that the Court is required or permitted to take into account.[46]
[46]16C Crimes Act
52As mentioned earlier, the Defendant is the sole breadwinner in his household. He has a wife and three very young children to support. The Defendant makes mortgage payments of approximately $4,800.00 per month in respect of the loan over the family home. The Defendant’s father assists with mortgage repayments. The Defendant pays approximately $2,200.00 towards the mortgage instalments.
53The Defendant runs his own kebab shop, and as I understand it he takes home approximately $1,200.00 per week, on average. His taxable income last financial year was approximately $80,000.00. The Defendant’s wife is in receipt of a parenting payment of approximately $600.00 per fortnight.
Submissions as to penalty
54Both parties acknowledged that there is an insufficient number of like cases from which to discern an appropriate sentencing “tariff”. That said, attention was drawn to three cases determined in this Court as offering guidance: Comptroller General of Customs v Amini,[47] Comptroller General of Customs v Haidary,[48] and Comptroller General of Customs v Robson.[49]
[47][2018] VCC 327
[48][2018] VCC 848
[49][2022] VCC 547
55The applicable sentencing principles are not in controversy.
Sentences to be imposed
56I have taken into account all of the matters identified by counsel and those to which I have referred. I have also taken into account that although there is an inherent connection between the offences, they each represent discrete criminal misconduct.[50] Nevertheless, principles of totality apply.
[50]Goulding v Penello & Anor (1999) 43 ATR 179 per Heenan J
57The Defendant’s pleas of guilty have been entered in the Court’s records in accordance with the Direction I gave on 3 October 2022.
58On the charge of smuggling goods contrary to s233(1)(a) of the Customs Act 1901 the Defendant is convicted and sentenced to pay a penalty in the amount of $4,000.00 (four thousand dollars).
59On the charge of making a false statement to an officer contrary to s234(1)(d) of the Customs Act the Defendant is convicted and sentenced to pay a penalty in the amount of $1,000.00 (one thousand dollars).
60The plaintiff does not seek an order of costs against the Defendant.
61I direct that the terms of these orders be entered into the records of the Court.
ORDERS
1 Judgment entered in favour of the plaintiff.
2 The Defendant is convicted of one charge of smuggling goods contrary to s233(1)(a) of the Customs Act 1901 (Cth) (“the Act”).
3 The Defendant is convicted of one charge of making a false statement to an officer contrary to s234(1)(d) of the Act.
4 The Defendant is ordered to pay financial penalties as follows:
(a)On the charge of smuggling goods contrary to s233(1)(a) of the Customs Act 1901 the Defendant is sentenced to pay a penalty in the amount of $4,000.00 (four thousand dollars); and
(b)On the charge of making a false statement to an officer contrary to s234(1)(d) of the Customs Act the Defendant is sentenced to pay a penalty in the amount of $1,000.00 (one thousand dollars).
5 No order as to costs.
6 The proceeding is otherwise dismissed.
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