Comptroller-General of Customs v Jenner
[2023] VCC 93
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-22-01578
| COMPTROLLER-GENERAL OF CUSTOMS | Plaintiff |
| v | |
| LAUREN HEIDI JENNER | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2023 | |
DATE OF JUDGMENT: | 8 February 2023 | |
CASE MAY BE CITED AS: | Comptroller-General of Customs v Jenner | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 93 | |
REASONS FOR JUDGMENT
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Subject: COMMON LAW
Catchwords: Customs – offences – smuggling – importation of tobacco – evasion of duty – false statement – not appropriate vehicle for general and specific deterrence – youthful offender
Legislation Cited: Crimes Act 1914 (Cth), s16A(2), s16C, s19B; Customs Act 1901 (Cth), Part XIII, s233(1)(a), s234(1)(a), s234(1)(d), s263
Judgment: (1) In relation to smuggling good contrary to s233(1)(a) of the Customs Act, the defendant is discharged on a recognisance order under s19B(1) of the Crimes Act 1914 (Cth), without proceeding to conviction on the following conditions: the defendant give security in the sum of $500 and be of good behaviour for 18 months;
(2) In relation to evading payment of duty that is payable contrary to s234(1)(a) of the Customs Act, the defendant is discharged on a recognisance order under s19B(1) of the Crimes Act 1914 (Cth), without proceeding to conviction on the following conditions: the defendant give security in the sum of $500 and be of good behaviour for 18 months;
(3) In relation to make false statement to an officer contrary to s234(1)(d) of the Customs Act, the defendant is discharged on a recognisance order under s19B(1)(d)(ii) of the Crimes Act 1914 (Cth), without proceeding to conviction, upon her giving security, without sureties, that the defendant will comply with the following conditions: the defendant make a reparation in the amount of $1000 to the Comptroller-General of Customs with a stay of three months and to be of good behaviour for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Haban-Beer | Australian Government Solicitor |
| For the Defendant | Self-represented | - |
HIS HONOUR:
1The plaintiff, Comptroller-General of Customs, brings this prosecution under Part XIII of the Customs Act 1901 (Cth) (“the Act”). The prosecution of the defendant, Lauren Heidi Jenner, arises from a single importation of tobacco products by Ms Jenner at Melbourne Airport on 8 April 2019. On that day, the defendant was intercepted with three suitcases containing 80,420 cigarettes by Customs officers.
2The plaintiff, by Writ dated 27 April 2022, sets out three separate offences in the attached Statement of Claim. The three charges are:
(a) Smuggling goods pursuant to s233(1)(a) of the Act. The maximum penalty for this offence is $84,000.
(b) Evade payment of duty that is payable on tobacco products pursuant to s234(1) of the Act. The maximum penalty is $84,000.
(c) Make false statement to an officer pursuant to s234(1)(d) of the Act. The maximum penalty is $52,500.
3The defendant was self-represented at this hearing.
The proceeding
4The Prosecutor tendered and relied upon the following documents:
· Exhibit “P1” – Writ and Statement of Claim dated 27 April 2022; and
· Exhibit “P2” – Outline of Submissions of the plaintiff on penalty dated 4 January 2023.
5The plaintiff also relied upon the admissions set out in the defendant’s Defence dated 12 August 2022 and the defendant’s affidavit dated 2 October 2022.
6The defendant tendered and relied upon the following documents:
· Exhibit “D1” – Bundle of references:
§David and Lidia Kranjec
§Amy Culpitt
§Chelsea Tucker
§Ashlee Craperi
§Candice Hotham
§Matthew Koo Yuk Cheong
§Glenda Haw.
· Exhibit “D2” – Asset Argument
· Exhibit “D3” – Letter of apology and explanation from the defendant
· Exhibit “D4” – Opening Statement of the defendant.
7The Prosecutor also handed to the Court a folder of documents which contained the documents referred to above, together with a Brief of Evidence and list of authorities.
8The hearing proceeded on the basis of submissions made by both the Prosecutor and the defendant based on the contents of the tendered documents.
The factual basis for the three charges
9On 8 April 2019, the defendant arrived on board flight VN781 at the Melbourne International Airport from Vietnam.
10The defendant disembarked the flight with five pieces of luggage:
· A small duffle bag
· A small black YSL handbag
· Three large brown and black Samsonite suitcases.
11The defendant completed and signed an Incoming Passenger Card (“IPC”) dated 8 April 2019.
12The defendant presented the IPC for Australian Border Force (“ABF”) Officer, Kate Layton. The IPC declared the defendant was not bringing into Australia more than 25 cigarettes or 25 grams of tobacco.
13ABF Officer Layton questioned the defendant and in answering those questions, the defendant stated the following:
· It was the defendant’s IPC
· The defendant had signed the IPC
· The defendant had read the IPC
· The defendant had understood all the questions on the IPC
· The luggage belonged to the defendant
· The defendant had packed the luggage
· The defendant was aware of the contents of the luggage.
14A search of the three suitcases revealed they contained 80,420 cigarette sticks.
15The total duty payable on the 80,420 cigarette sticks was $65,763.46.
16The defendant did not pay the duty, knew that there was duty payable on the cigarettes contained in her luggage and had no intention to pay the relevant duty.
17The accepted facts constituted the basis for the proof of each of the three charges.
Considerations for penalty
Personal circumstances of the Defendant
18At the time of the offending, the defendant was twenty years of age. The defendant is originally from New Zealand. She was in an abusive, controlling and sexually abusive domestic relationship in the period prior to her offending. Prior to the offending, the defendant has been prescribed medication for depression by her general practitioner. In June 2019, after the offending, the defendant attempted to take her own life and was hospitalised at Casey Hospital, Berwick, on 13 June 2019 as a result.[1]
[1] Affidavit of Lauren Jenner sworn on 22 October 2022
19The defendant then commenced a new domestic relationship which again became abusive physically and controlling in nature. The defendant gave birth to her son in August 2020 during that relationship. One of the defendant’s character references is from her son’s paternal grandparents who encouraged and supported the defendant in leaving the relationship with their own son.
20The references in Exhibit “D1” speak clearly and unequivocally about the “one mistake” the defendant made in respect of this offending and her remorse for it. Further, the referees confirm the defendant has established independent living for herself and her son. The defendant has no family support in Australia. The defendant enjoys the support and assistance of her referees (Exhibit “D1”) and her “in laws” as she referred to them.
21The defendant’s financial position is dire. She has a rental commitment of $2,390 per month plus utility costs. She lost her motor vehicle in a car accident and cannot afford a replacement. She receives a Family Tax Benefit for her son of $1,060 per month. The defendant otherwise relies on casual work, from modelling, dog walking, pet day care, pet hosting and house sitting. Her estimate was an income of $400 per week.
22The defendant has no prior convictions or subsequent charges. She is a twenty-four-year old single parent of a two-and-half year old son.
23The defendant expressed guilt and shame for these offences as stated in Exhibit “D3” and in Court. I accept her remorse is genuine. The defendant also states, in Exhibit “D2”, she received no payment for bringing the cigarettes into Australia. In the defendant’s apology letter (Exhibit “D3”) the defendant refers to the abusive relationship, the resulting desperation and depression, and mixing with the wrong people as the explanation for her offending that now brings her before this Court.
24At the time of the defendant’s interception at Melbourne Airport with the cigarettes, she told ABF Officers that:
· She was a heavy smoker
· She could not afford cigarettes in Australia
· The cigarettes were meant to last a long time
· The cigarettes were all for herself
· She was not travelling with anyone else that day.
25I note that whilst cigarettes are a non-perishable product, the defendant would have a sufficient number of cigarettes for a decade if her rate of “heavy smoking” was 20 cigarettes per day – everyday.
26The offending was very unsophisticated and the defendant was always going to come to the attention of ABF. Her trip to Vietnam was of short duration. She was in possession of three new Samsonite suitcases, all the same colour and size.
27The allegation is that she was travelling with a male person with the same luggage and contents.
28The prosecution’s case is the cigarettes seized from the defendant are for her own use. I find that the defendant was being used as a “mule” to bring the cigarettes past Customs. Her comment in the apology letter, “I did not earn any money from bringing them in” is confirmation of the “mule” finding. She is not a “heavy smoker”.
29The defendant is a young offender and rehabilitation is a significant consideration in determining these charges. In the almost four years since the offending, the defendant has turned her life around. She has no prior or subsequent criminal convictions.
30At the time of the offending, I accept that the defendant was suffering from a mental health diagnosis requiring the prescribing of anti-depressant medication. I find that she has a reduced moral culpability for the offending due to her mental state at that time.
31I accept that the offending overall is serious offending. The defendant was attempting to evade duty on cigarettes which amounted to approximately $65,000. As I have noted, she was always going to be intercepted.
32The principles of general and specific deterrence require significant weight in cases relating to the avoidance of customs duties. In this case, however, the defendant is not a good vehicle to give full weight to general and specific deterrence due to her personal circumstances then and now, and the role she played in the offending.
33The defendant was fully co-operative with the authorities. Subsequently, during the prosecution of these matters, the defendant expressed remorse at the time of the offending and later to her referees, and the Court. I accept she is genuinely remorseful for these offences.
34I accept that the defendant has experienced, and in all likelihood will continue to experience, close attention from ABF officers on her way in and out of Australia. This has caused her to forego any travel with her young son to see her own mother in New Zealand.
35Counsel for the plaintiff submitted that convictions and fines be imposed on the defendant in respect of each of the three charges. In the traditions of advocates opposed to unrepresented defendants, Counsel for the plaintiff included submissions on s19B of the Crimes Act.
36I am required to take into account the considerations and matters set out in s16A(2) of the Crimes Act.
37I have noted the requirement under s16C of the Crimes Act to take into account the financial circumstances of the defendant when assessing the penalty to be applied to the defendant for these three offences.
38The three offences involved in the importation of tobacco on 8 April 2019 are substantially connected and contemporaneous with each other.
39I 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 she intended to defraud the revenue. She made a false statement about the precise nature of the goods; that is, no 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.
40I 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.
41The appropriate penalty is a recognisance order pursuant to s19B of the Crimes Act. In the exercise of my sentencing discretion, I do not find it appropriate to proceed to conviction in any of the charges for the reasons set out. The recognisance will have a condition for payment of a reparation of $1000 with a stay of three months.
Orders
42In relation to paragraph 2 of the Statement of Claim (smuggling goods contrary to s233(1)(a) of the Customs Act), the defendant is discharged under s19B(1) of the Crimes Act, without proceeding to conviction, on the following conditions:
· The defendant gives security in the sum of $500.
· The defendant to be of good behaviour for eighteen (18) months.
43In relation paragraph 3 of the Statement of Claim (evading payment of duty that is payable contrary to s234(1)(a) of the Customs Act), the defendant is discharged under s19B(1) of the Crimes Act, without proceeding to conviction, on the following conditions:
· The defendant gives security in the sum of $500.
· The defendant to be of good behaviour for eighteen (18) months.
44In relation to paragraph 4 of the Statement of Claim (make false statement to an officer contrary to s234(1)(d) of the Customs Act), the defendant is discharged under s19B(1)(d)(ii) of the Crimes Act, without proceeding to conviction, upon her giving security, without sureties, that the defendant will comply with the following conditions:
· The defendant to make reparation in the amount of $1000 to the Comptroller-General of Customs.
· The defendant to be of good behaviour for eighteen (18) months.
· There be a stay of payment of the reparation for three (3) months.
Costs
45The prosecution sought an order for costs pursuant to s263 of the Act. The amount sought was $15,826.50.
46The award of costs to a party in a successful prosecution or defence of a prosecution is not a punishment but compensatory in nature. The award of costs in a prosecution under the Act follows the usual rule of costs following the event.
47Costs orders are discretionary orders made by the Court. In this case, it is in the exercise of my discretion to make no order as to costs. I do so for the same reasons set out in respect of penalty.
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