Comptroller-General of Customs v Haidary

[2018] VCC 848

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-05423

COMPTROLLER GENERAL OF CUSTOMS	Plaintiff
v
ASHGAR ALI HAIDARY	Defendant

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 JUNE 2018
DATE OF JUDGMENT:	14 JUNE 2018
CASE MAY BE CITED AS:	Comptroller General of Customs v Haidary
MEDIUM NEUTRAL CITATION:	[2018] VCC 848

REASONS FOR JUDGMENT
---

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); Customs Act 1901 (Cth)

Cases Cited:Chief Executive Officer of the Australian Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40; Pearce v The Queen (1998) 194 CLR 610 and Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33.

Judgment:                Penalty of:

1. $2,000 for making false statement;
  2. $3,000 for smuggling; and
  3. $60,000 for evasion of duty.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Haban-Beer	Australian Government Solicitor
For the Defendant	No Appearance (Hearing)	19 April 2018  8 June 2018

HIS HONOUR:

1       This 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 Mr Haidary, at Melbourne Airport on 28 August 2016. On that day the defendant imported 40 kilograms of water pipe tobacco. In respect of the importation, the defendant was charged, by way of Statement of Claim dated 15 November 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 ($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 five times the duty payable. In this case, in respect of the importation, the maximum penalty for the smuggling of goods was $134,366 but the penalty maximum is $72,000; due to operation of s 245 (2) of the Act.

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 five times the amount of duty. In respect of the importation, the penalty range available is between $53,784.40 and $72,000.

5       The maximum penalty for making a false statement is a penalty not exceeding 250 penalty units, that is, $45,000.

6       The defendant was personally served with the Writ and Statement of Claim on 27 November 2017. The defendant has not entered an appearance in respect of this proceeding. The plaintiff issued a summons for judgment in default of appearance on 5 March 2018. The summons for default judgment was personally served on the defendant on 14 March 2018.

7       The summons for default judgment was listed for hearing on 19 April 2018. The defendant did not appear at Court on 19 April 2018.

8       On 19 April 2018, 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. That the matter be listed for a hearing to determine whether any penalty is payable by the defendant pursuant to paragraphs 1(a) and (b), 2(a) and (b) and 3(a) and (b) of the RELIEF CLAIM section of the statement of claim.

3. The Defendant pay the Plaintiff’s costs in relation to the proceedings, pursuant to section 263 of the Customs Act fixed in the sum of $7,671.36.

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

5. The matter be adjourned for further hearing on 8 June 2018 before His Honour Judge Carmody.’

9         On 19 April 2018, I was reluctant to proceed to recording a conviction in relation to charges of smuggling goods (s 233 (1) (a)); evade payment of duty (s 234 (1)); and making a false statement to and officer (s 234 (1) (d)) without giving the defendant an opportunity to be heard on that issue.

10       The matter was subsequently listed for penalty hearing on 8 June 2018. The Plaintiff was ordered to serve on the defendant a copy of the orders made on 19 April 2018, 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 8 June 2018.

11       The plaintiff now 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.

12       This prosecution appears to be the second matter of this kind to come before a Judge of this Court.

13       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. I was also assisted by written submission from Counsel for the plaintiff.  

14       Counsel for the plaintiff submitted that each of the offences should be dealt with as separate offences and not a single event involving these types of offences. Counsel did concede that there was some degree of overlap in the criminal activity of smuggling and evading the payment of duty charges.

15       It was submitted that the defendant was a regular traveller in and out of Australian Airports and would be familiar with his declaration obligations to Customs Officers. Exhibit A was tendered to show the frequency of the defendants movements in and out of Australia between 1999 and 2017.

16       Counsel for the plaintiff also submitted that the defendant was blatantly flouting the duty to be paid on tobacco when he told Border Force Officer Tsionis that the tobacco was ‘Chinese Green Tea’ before finally admitting the product was tobacco. Counsel also submitted the seriousness of the offending is marked out by the source of the tobacco a (Shisha shop) and the fact that the defendant paid $1,600 for the 40 kilograms of water pipe tobacco. Counsel relied on Officer Tsionis statement dated 28 August 2016 for these submissions (Exhibit B). Finally Counsel submitted that these offences are difficult to detect and that attacks on the revenue affect the community at large, hence, general deterrence is a significant factor in determining the appropriate penalties for such offences.

17       The 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 s 16C of the Crimes Act 1914 (Cth)

18 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 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 prospects of rehabilitation, the defendant’s co-operation with investigations, and the impact of any order on the person’s family or dependants.

19 The 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 s 16A (2) of the Crimes Act 1914 (Cth).

20       I accept that the importation of tobacco by the defendant on 28 August 2016, 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 (No 2) [2006] QSC 40.

21       I 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 makes the false statement about the precise nature of the goods i.e. tea verse tobacco 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.

22       I 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.

23       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. There is no evidence of remorse or contribution 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.

24       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.

25 I take into account the applicable duty on this shipment of tobacco was $26,867.20. I take into account Parliaments intention as expressed in the provisions of s 234 (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 defendants lack of co-operation with authorities.

26       The 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.[5] 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.

[5]Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33.

27       The tobacco was packed in boxes and not secreted in any manner. The photographs attached to exhibit B, show this clearly. The basic examination of the defendants luggage was all that was required to detect this tobacco importation. The dishonesty in his false declaration is not at the higher end of this type of offending.

28       For the above reasons, I find that it is appropriate to convict the defendant in respect of each of the charges set out in paragraph 2, 3 and 4 of the Statement of Claim dated 15 November 2017.

29       In respect of the charge of making a false statement, the defendant is ordered to pay a penalty of $2,000.

30       In respect of the charge of smuggling, the defendant is order to pay a penalty of $3,000.

31       In respect of the charge of evading duty, the defendant is ordered to pay a penalty of $60,000.

32       I will now hear Counsel on appropriate Form of Orders.