Comptroller-General of Customs v Georgio

[2022] VCC 1945

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-21-05016

COMPTROLLER-GENERAL OF CUSTOMS	Plaintiff
v
GEORGE GEORGIO	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	24 August 2022
CASE MAY BE CITED AS:	Comptroller-General of Customs v Georgio
MEDIUM NEUTRAL CITATION:	[2022] VCC 1945

REASONS FOR JUDGMENT
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Subject:COMMON LAW

Catchwords:              Customs – offences – smuggling – importation of tobacco – evasion of duty – false statement – conviction – no appearance by defendant – deterrence – totality – minimum penalties

Legislation Cited:      Crimes Act 1914 (Cth), s16A; Customs Act 1901 (Cth), Part XIII, s233, s234

Cases Cited:Chief Executive Officer of the Australian Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40; Pearce v The Queen (1998) 194 CLR; Comptroller-General of Customs v Haidary [2018] VCC 848

Judgment:                  Penalty of:

1.$3,500 for making false statement;

2.$5,000 for smuggling; and

3.$150,000 ($84,000 subject to the operation of s245(2) of the Act).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Pianko (of AGS)	Australian Government Solicitor
For the Defendant	No appearance	-

HER HONOUR:

1This is a prosecution brought under Part XIII of the Customs Act 1901 (Cth) (“the Act”) and arises out of one importation of tobacco products by the defendant, at Melbourne Airport on 12 April 2019.

2On that day, the defendant imported 80,200 cigarette sticks of tobacco.  The duty payable on the importation as at the date of the offence was $65,583.55.

3In respect of the importation, the defendant was charged, by way of Statement of Claim dated 24 November 2021, with three offences under the Act: smuggling goods (contrary to s233(1)(a)); evading payment of duty that is payable (contrary to s234(1)(a)); and making false statement to an officer (contrary to s234(1)(d)).

4At the time of importation on 12 April 2019, a penalty unit was the amount of $210. 

5In relation to the smuggling of goods, under s233(1)(a) the maximum penalty is not more than five times the duty payable. In this case, in respect of the smuggling, the maximum penalty for the smuggling of goods was $327,917.75.

6In relation to evading payment of duty, under s234A, the minimum is two times the amount of duty, so that is $131,167.10, and the maximum is not more than five times the amount of duty avoided, $327,917.75.

7While the maximum penalty for the smuggling of goods and evading payment of duty are referable to the amount of duty evaded, in each case, any amount of penalty exceeding 400 penalty units – $84,000 – is taken to be abandoned.[1] 

[1]See s245(2) of the Act

8The maximum penalty for making a false statement is a penalty not exceeding 250 penalty units; that is, $52,500.

9The defendant was personally served with the Writ and Statement of Claim on 13 December 2021.  He has not entered an appearance in respect of this proceeding.

10The plaintiff filed a Summons for the application for judgment in default of appearance on 19 May 2022.  The Summons was served on the defendant via email on 20 May 2022 and by registered post on 24 May 2022.

11The Summons for default judgment was listed for hearing on Zoom on 6 June 2022.  The defendant did not appear at Court on that day.

12On 7 June 2022, the Court made the following Orders:

“1.The offences charges at paragraphs [2] to [4] of the CHARGES section of the statement of claim are found proven.

2.   Paragraphs [2]-[4] of the Plaintiff’s summons filed 19 May 2022 are adjourned for consideration to 12 August 2022 at a Penalty Hearing before her Honour Judge K.L. Bourke.  

3.   The Plaintiff is to personally serve a copy of these orders on the Defendant.

4.   Costs reserved.  

5.   Liberty to apply.”

13On 6 June 2022, I was reluctant to proceed to recording a conviction in relation to charges of smuggling goods (s233(1)(a)); evade payment of duty (s234(1)); and making a false statement to an officer (s234(1)(d)) without giving the defendant an opportunity to be heard on that issue.

14The matter was subsequently listed for penalty hearing on 12 August 2022.  The plaintiff was ordered to serve on the defendant a copy of the Orders made on 7 June 2022 and did so.  To date, there has been no application made by the defendant to set aside the default judgment.  The defendant did not appear at Court on Zoom on 6 June 2022 or 12 August 2022.

15The plaintiff seeks a conviction in relation to the three charges.

16The plaintiff also seeks relief by way of the imposition of pecuniary penalties within the range of permissible statutory penalties as outlined at paragraphs 1, 2 and 3 of the Statement of Claim.

17I was assisted by detailed written submissions from the plaintiff’s solicitor filed before the June 2022 hearing and also oral submissions made on 12 August 2022.

18As the solicitor for the plaintiff submitted, each of the offences should be dealt with as separate offences and not a single event involving these types of offences.  It was conceded there was some degree of overlap in the criminal activity of smuggling and evading the payment of duty charges.

19The defendant did not appear at the penalty hearing.  I am satisfied the defendant knew of the time and place of the penalty hearing.  As a consequence, 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.[2]

[2]See s16C of the Crimes Act 1914 (Cth)

20Each of the offences is a federal offence, and the determination of the appropriate sentence or order is governed by s16A 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. 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.

21The fact that the defendant has not appeared at Court and has failed to provide submissions as to penalty or disposition makes it difficult to fully explore the matters set out in s16A(2) of the Crimes Act 1914 (Cth).

22I accept that the importation of tobacco by the defendant on 12 April 2019 involved three separate offences which are substantially connected and contemporaneous with each other.[3]

[3]Chief Executive Officer of the Australian Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 40

23I accept there is an overlap between the conduct of the defendant which satisfies the elements of one offence and constituted a set of facts that prove an element of another offence.  The defendant is guilty of smuggling because he intended to defraud the revenue.  He has evaded the payment of duty.  He makes the false statement about the quantity of cigarettes – declaring he was not bringing more than 25 cigarettes into Australia to evade payment of duty.   Therefore, the making of a false statement is not only an offence on its own but is also conduct that is integral to the offence of smuggling and the evasion of duty.

24I am 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.[4]

[4]Pearce v The Queen (1998) 194 CLR 610

25On 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.  There is no evidence of remorse or contrition on the part of the defendant 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.

26In 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.

27I take into account the applicable duty on this shipment of tobacco was $65,583.55. I take into account Parliament’s intention as expressed in the provisions of s234(1)(a) of the Act in respect of evasion of duty. I find that whilst this offending has occurred on one occasion, the need for specific deterrence is raised by the amount of the importation and the defendant’s lack of co-operation with authorities.

28The consideration of general deterrence is to be given considerable weight in this case, given the nature of the customs offending and the consequences for the community at large.  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.

29The tobacco was simply in two brown soft-sided suitcases.  The basic examination of the defendant’s luggage was all that was required to detect this tobacco importation.  I do not consider the level of dishonesty to be at the higher end when compared to other cases of this kind.

30The solicitor for the plaintiff accepted that it was an amateurish, unsophisticated act, of a similar nature to the defendant’s conduct in the matter of Haidary.[5]

[5]        Comptroller-General of Customs v Haidary [2018] VCC 848

31The solicitor for the plaintiff still maintained however, that it was serious offending, as the plaintiff declared having less than twenty-five cigarettes, whereas he had over 80,000, which was a large personal importation.

32As the solicitor for the plaintiff submitted, the defendant has shown a disregard for the law in the past, having a number of prior convictions including the dishonesty offence of perjury in 2020.

33For the above reasons, I find that it is appropriate to convict the defendant in respect of each of the charges set out in paragraphs 2, 3 and 4 of the Statement of Claim dated 24 November 2021.

34In respect of the charge of making a false statement, the defendant is ordered to pay a penalty of $3,500 – a nominal fine, as the solicitor for the plaintiff submitted was appropriate.

35In respect of the charge of smuggling, the defendant is ordered to pay a penalty of $5,000.

36In respect of the charge of evading duty, the defendant is ordered to pay a penalty of $150,000, to the lower end of the penalty range under the Act, taking into account all the relevant sentencing considerations discussed above. However, the abandonment limit is $84,000, which is 400 penalty units at $210 each.

37I will also allow the costs claimed totalling $14,709.80, being $11,706.75 (75 per cent of the actual costs of $15,609), together with disbursements of $ 3,003.05.

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