Comptroller-General of Customs v Robson
[2022] VCC 547
•13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-04266
| THE COMPTROLLER-GENERAL OF CUSTOMS | Plaintiff |
| v | |
| JAMES DANIEL ROBSON | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 17 February 2022 and 13 April 2022 | |
DATE OF JUDGMENT: | 13 April 2022 | |
DATE OF SENTENCE: | 4 May 2022 | |
CASE MAY BE CITED AS: | Comptroller-General of Customs v Robson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 547 | |
REASONS FOR JUDGMENT
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Subject:COMMON LAW
Catchwords: Customs – offences – smuggling – importation of tobacco – evasion of duty – false statement – convictions for offences – no appearance by defendant – sentence – deterrence – totality – minimum penalties
Legislation Cited: Customs Act 1901 (Cth); Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth); Customs Tariff Act 1995 (Cth); County Court Civil Procedure Rules 2018; Crimes Act 1914 (Cth)
Cases Cited: Commissioner of Taxation v Cocaj; Commissioner of Taxation v Behluli [2004] 2 Qd R 488; Gill v The Chief Executive Officer of Customs [2009] WASC 222; Johnson v The Queen [2004] 218 CLR 451; Hili v The Queen; Jones v The Queen [2010] 242 CLR 520; Bui v Director of Public Prosecutions (Cth) [2012] 244 CLR 638; The Queen v Pham (2015) 256 CLR 550; Lanham v Brake; Van Velsen v Brake; Van Velsen v Dielos (1983) 34 SASR 578; Hayes v Weller (1988) 50 SASR 182; L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157; Chief Executive Officer of Customs v Coulton [2005] NSWSC 869; Chief Executive Officer of Customs v Tonmill Pty Ltd & Anor [2001] 160 FLR 1; Goulding v Penello [1999] WASC 192; Comptroller-General of Customs v Haidary [2018] VCC 848; Comptroller-General of Customs v Amini [2018] VCC 327; Chief Executive Officer of Australian Customs Service v Karam (No 2) [2013] NSWC 33; Pearce v The Queen [1998] 194 CLR 610; Park v The Queen [2021] HCA 37
Judgment: (1) The defendant is ordered to pay a penalty of $5,000 in respect to the smuggling offence contrary to s233(1)(a) of the Customs Act 1901 (Cth).
(2)The defendant is ordered to pay a penalty of $110,000 in respect of the offence of evading payment of duty contrary to s234(1) of the Customs Act 1901 (Cth). (Such penalty is subject to s245(2) of the Act which provides that where the pecuniary penalty would exceed 400 penalty units ($84,000), the amount of penalty exceeding the 400 penalty units is taken to be abandoned in circumstances when the prosecution is commenced in an intermediate court).
(3)The defendant is ordered to pay a penalty of $3,000 in respect of the making false statement offence contrary to s234(1)(d) of the Customs Act 1901 (Cth).
(4)The defendant is ordered to pay the costs of the plaintiff fixed in the sum of $18,667.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M T Foley (AGS Solicitor) | Australian Government Solicitor |
| For the Defendant | No appearance on 17 February 2022 and 13 April 2022 | - |
HIS HONOUR:
1This is a prosecution brought under Part XIII of the Customs Act 1901 (Cth) (“the Act”) and arises out of one importation of 53,200 cigarette sticks of tobacco on 3 May 2019 at the Melbourne International Airport by Mr James Daniel Robson, who I shall refer to as “the defendant”.
2In respect of such importation, the defendant has been charged by way of Statement of Claim dated 23 September 2020, with the following offences:
(a) smuggling goods contrary to s233(1)(a) of the Act (“the smuggling offence”);
(b) evading payment of duty that is payable contrary to s234(1) of the Act (“the evasion offence”); and
(c) making a false statement to an officer contrary to s234(1)(d) of the Act (“the making false statement offence”).
3These charges fall within the definition of a Customs prosecution, as set out in s224 of the Act[1] and the County Court of Victoria has jurisdiction to hear and determine Customs prosecutions.[2] A Customs prosecution may be instituted at any time within five years after the cause thereof.[3]
[1]That is, they are proceedings “for the recovery of penalties under this Act, other than pecuniary penalties referred to in s245B”: See s234(a) of the Act
[2]By operation of s245 of the Act, Customs prosecutions can be commenced in a “County Court or District Court of a State”
[3]See s249 of the Act
4Section 247 of the Act provides:
“Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.”
Penalties
5The Commonwealth sentencing regime does not provide for fines being paid without conviction.[4] Accordingly, in seeking penalties for the smuggling offence, the evasion offence and the making a false statement offence, convictions are also sought by the plaintiff.
[4]See Commissioner of Taxation v Cocaj; Commissioner of Taxation v Behluli [2004] 2 Qd R 488
6Section 245(2) of the Act provides that, where a pecuniary penalty would exceed 400 penalty units, the amount of the penalty exceeding 400 penalty units is taken to be abandoned when a prosecution is commenced in an intermediate court (as is this case).
7This section caps the penalty which may be imposed for each instance of the offence charged and does not apply to cap the cumulative penalty which might be imposed for all offences charged or each proceeding instituted.[5]
[5]See Gill v The Chief Executive Officer of Customs [2009] WASC 222; see also Commissioner of Taxation v Cocaj; Commissioner of Taxation v Behluli (op cit)
8At the time of the importation on 3 May 2019, a penalty unit was the amount of AUD210.[6]
[6]See s4AA of the Act as amended by the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth). I note that a penalty unit is now subject to indexation, however, at the date of the offence the amount of the penalty unit was $210
9The Act provides that the maximum penalties for the smuggling offence and the evasion offence are referable to the amount of duty evaded. The customs duty payable at the time of the importation is identified in Chapter 24 of Schedule 3 to the Customs Tariff Act 1995 (Cth), as particularised in the Statement of Claim.
10Duty payable on the importation of cigarette sticks with the tobacco content not exceeding 0.8 grams was $0.81775 per cigarette stick as per 3 May 2019 (being the date of the offending conduct). Accordingly, the duty payable on 53,200 cigarettes was (at that time) $43,504.30.
11In relation to the smuggling offence, s233AB(1)(a)(i) of the Act provides for a penalty not exceeding five times the amount of any duty payable. Accordingly, the maximum penalty for a breach of s233(1)(a) of the Act, in the circumstances of this matter, is a pecuniary penalty of $217,521.50, with any penalty exceeding $84,000 (that is 400 penalty units) is taken to be abandoned.
12In relation to the evasion offence, s234(2)(a)(i) of the Act provides that the applicable penalty is a penalty not exceeding five times the amount of the duty and not less than two times the amount of the duty, where the Court can determine the amount of duty payable at the relevant time, as in the present case.
13Accordingly, the minimum and maximum penalties that can be imposed in relation to the evasion offence, in the circumstances of this matter, are:
· minimum: $87,008.60; and
· maximum: $217,521.50.
Any penalty exceeding $84,000 (400 penalty units) is taken to be abandoned.
14In relation to the false statement offence, s234(2)(c) of the Act provides that the applicable penalty is a penalty not exceeding 250 penalty units. Accordingly, the maximum penalty for the making a false statement, in the circumstances of this matter, is $52,500.
Background
15By Summons filed on 23 December 2021, the plaintiff applies for judgment in default of appearance pursuant to Rule 21.01 and 21.04 of the County Court Civil Procedure Rules 2018. In support of such application, the plaintiff relies upon the following material:
(a) the affidavit of Kylie Rachel McInnes, AGS lawyer, affirmed on 17 December 2021 (“the December McInnes affidavit”), deposing to the service of a Writ and Statement of Claim on the defendant by SMS text message and email;
(b) the affidavit of Kylie Rachel McInnes, AGS lawyer, affirmed on 16 February 2022 (“the February McInnes affidavit”), deposing to the service of the default judgment application on the defendant;
(c) the affidavit of Justine Shira Pianko, AGS lawyer, affirmed on 8 April 2022 (“the April Pianko affidavit”), deposing to the service of the Writ and Statement of Claim on the defendant by post and the failure of the defendant to file a notice of appearance within the requisite time limit.
16Preceding these affidavits, Judicial Registrar Gurry, on 2 June 2021, made an Order for substituted service (“the Substituted Service Order”). On 3 June 2021, the defendant was served with the Writ and Statement of Claim by SMS text message and an email, in accordance with paragraphs 1(b)-(c) of Order 1 of the Substituted Service Order.[7]
[7]See the December McInnes affidavit at paragraphs 4(e)(ii)-(iii)
17The default judgment application was returnable, initially before this Court on 17 February 2022. At that time, the Court sought to clarify the address for service of the defendant recorded in the Substituted Service Order and noticed there appeared to be an accidental slip in the address. The application was adjourned to 10.00am on 13 April 2022.
18In the meantime, the plaintiff sought to have the Substituted Service Order amended and on 1 March 2022, Judicial Registrar Gurry made an Order to amend the accidental slip in the Substituted Service Order (“the Amending Order”).[8]
[8]See the April Pianko affidavit at paragraphs [9]-[10]
19I note the following:
(a) On 4 March 2022, the defendant was served with a Writ and Statement of Claim via post in accordance with paragraph 1(a) of the Substituted Service Order, as amended by the Amending Order;[9]
(b) On 7 March 2022, the defendant received the documents served in accordance with paragraph 1(a) of the Substituted Service Order, as amended by the Amending Order.[10]
[9]See the April Pianko affidavit at paragraph [11]
[10]See the April Pianko affidavit at paragraph [12]
20Pursuant to Order 2 of the Substituted Service Order, as amended by the Amending Order, service on the defendant is deemed to have taken effect twenty-one days after service has been effected in accordance with each paragraph of Order 1 ꟷ that is to say, by 25 March 2022. Service in accordance with paragraphs 1(b)-(c) of Order 1 of the Substituted Service Order was deemed to have taken effect and service in accordance with paragraph 1(a) of Order 1 of the substituted Service Order, as amended by the Amending Order.
21Pursuant to Rule 8.04(a) of the Rules and the Writ, the defendant was required to file a notice of appearance within ten days after service – that is 4 April 2022, being the time for filing. No notice of appearance was filed by the time for filing,[11] and as at the date of the April Pianko affidavit, no notice of appearance had been filed.[12]
[11]See the April Pianko affidavit at paragraph [13]
[12]See the April Pianko affidavit at paragraph [14]
Default judgment application
22A summons for the application for default judgment was filed with this Court on 23 December 2021. The application was made on notice to the defendant.[13] It was not necessary or required under the Rules for such an application to be made on notice.[14] The defendant was copied into correspondence between the AGS and the Common Law Registry on 17 and 20 December 2021.[15] In addition, on 23 December 2021, the AGS forwarded the defendant correspondence from the Common Law Registry, listing the Summons and served a copy of the Summons and the December McInnes affidavit, on the defendant by email.[16]
[13]See the McInnes affidavit at paragraph [6]
[14]See Rule 21.04(2) of the Rules, which provides an application made under Rule 21.04(1) may be made without notice
[15]See February McInnes affidavit at paragraphs [6a]-6b(i)-(ii)
[16]See February McInnes affidavit at paragraph [6c]
23On 4 March 2022, the AGS sent the defendant a letter which advised the defendant of the outcome of the hearing on 17 February 2022. Such letter also enclosed documents the plaintiff relied upon at the hearing on 17 February 2022 – being the Summons, the December McInnes affidavit, the February McInnes affidavit (and the plaintiff’s Outline of Opening Submissions). Such letter also included a copy of the Orders made by this Court on 17 February 2022.[17] The defendant was also copied into correspondence from the Common Law Registry attaching the Orders made by this Court on 17 February 2022.[18]
[17]See April Pianko affidavit, exhibit JSP-6, referred to in paragraph [11a]
[18]See April Pianko affidavit at paragraph [8]
Convictions being entered
24Having read all the available material, I am satisfied that there has been effective substituted service on the defendant pursuant to the relevant Orders. Furthermore, I note that the defendant did not appear at this Court on 17 February 2022 or on 12 April 2022.
25I also note that s255 of the Act provides that any fact that is averred in the Statement of Claim shall be prima facie evidence of that fact. The Statement of Claim in this matter has averred matters of facts, sufficient for the Court to find each of the charges proven, and to substantiate a finding of guilt for each charge.
26On 12 April 2022, the Court found that the offences charged at paragraphs 2 to 4 of the Charges’ section of the Statement of Claim were proven and that the defendant be convicted in relation to the smuggling offence, the evasion offence and the making the false statement offence. I direct that such convictions be recorded accordingly.
Sentencing considerations
27The various convictions that I have entered are for Federal offences, the sentences for which are primarily governed by Part 1B of the Crimes Act 1914 (Cth) (“the Crimes Act”). In particular, Division 2 of that Part, is headed “GENERAL SENTENCING PRINCIPLES”. Section 16A(1) of the Act provides that, in determining an appropriate sentence, the Court must impose a sentence that is of “a severity appropriate in all the circumstances of the offence”. Section 16A(2) of the Act provides that –
“In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
… .”
28In particular, the following matters are relevant to sentencing in relation to the various offences:
(a) the nature and circumstances of the offence (see s16A(2)(a));
(b) whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar nature – that course of conduct (see s16A(2)(c));
(c) the deterrent effect of the sentence on the offender (see s16A(2)(j));
(d) the deterrent effect of the sentence on other persons (see s16A(2)(ja));
(e) the need to ensure that the person is adequately punished for the offence (see s16A(2)(k)).
29The opening words of s16A(2) of the Act – that is, “in addition to any other matters” – makes clear that the list of matters in ss(2) is not exhaustive and, in particular, will allow the application of general common law principles in sentencing a Federal offence such as proportionality, totality and parity.[19] The common law will also allow the Court to take into account current sentencing practices throughout the Commonwealth.[20]
[19]See CDPP Guide entitled Sentencing of Federal Offenders in Australia a Guide for Practitioners at page 10, relying on Johnson v The Queen [2004] 218 CLR 451 at paragraph [15]; Hili v The Queen; Jones v The Queen [2010] 242 CLR 520 at paragraph [25]; Bui v Director of Public Prosecutions (Cth) [2012] 244 CLR 638 at paragraph [18]
[20]See The Queen v Pham (2015) 256 CLR 550 at 557 per French CJ, Keane and Nettle JJ
30I have regard to the following matters dealing with sentencing principles as applied in the context of the subject offending:
(a) the South Australian Supreme Court decision of Lanham v Brake; Van Velsen v Brake; Van Velsen v Dielos,[21] wherein Cox J enunciated the following matters relevant to a consideration of determining an appropriate sentence:
[21](1983) 34 SASR 578
(i)the seriousness of the offence;
(ii)its prevalence;
(iii)the obvious difficulty detecting the offence;
(iv)the consequent need to impose deterrent penalties;
Cox J noting that the deterrence must predominate;
(v)whether the offences are such that they are usually committed by persons of generally good character;
(b) so far as the relevant legislative policy is concerned, Customs offences are notoriously difficult to police and such offences have traditionally attracted heavy penalties;[22]
(c) from a practical necessity, Customs is dependent on the information supplied to it to perform its duties;[23]
(d) penalties for Customs offences are to be of a very high order.[24]
[22]See Hayes v Weller (1988) 50 SASR 182, per Perry J at 186, with whom King CJ and Jacobs J agreed
[23]See Anderson v L Vogel & Son Pty Ltd (1967) 120 CLR 157, per Kitto J at 164
[24]Chief Executive Officer of Customs v Coulton [2005] NSWC 869 at paragraph [48], per Simpson J
The submissions made on behalf of the Plaintiff
31Mr Foley, solicitor with the Australian Government Solicitor, made very helpful written submissions in relation to the offences generally, sentencing policies in relation to these offences and, more particularly, the sentencing considerations in respect of the circumstances surrounding the subject offences. I refer to the following:
(a) Given the nature of the offending, it was submitted that the three charges ought each to be considered as an individual instance of offending rather than a single course of conduct. Reference was made to Goulding v Penello[25] wherein Heenan J held that smuggling and evasion of duty was separate conduct. Smuggling relates to importation of goods with intent to defraud the revenue and the evasion of payment of duty “relates to a separate piece of conduct in furtherance of the act of smuggling”.[26] Reference was also made to the matter of Comptroller-General of Customs v Haidary,[27] wherein, in that matter, the defendant was charged with the same offences as the defendant in this matter. Ultimately, the presiding judge, Judge Carmody after consideration, treated the charges as individual instances of offending and ordered a penalty for each;[28]
[25][1999] WASC 192
[26]See also Chief Executive of Customs v Tonmill Pty Ltd (2001) 160 FLR 1 at paragraphs [41]-[42]
[27][2018] VCC 848
[28]Haidary (op cit) at paragraphs [21]-[23] and [28]
(b) It is submitted that the penalties to be imposed ought to reflect the seriousness of the offending in this matter. Reference was made to Chief Executive Officer of Customs v Coulton,[29] wherein Simpson J observed that:
[29][2005] NSWSC 869 at paragraph [48]
“Penalties imposed are required to reflect the serious inroads made on the revenue by customs offenders, and to render customs offending a very unattractive proposition … .”[30]
[30]Coulton (op cit) at paragraph [32]
(c) It was further submitted that the Court should have regard to the amount of tobacco imported and the amount of duty evaded in assessing the objective seriousness of the offending in this respect, and it is noted that the total amount of duty that was payable on importation in this matter was $43,504.30, which was described as “significant”. Further, it was a large importation of cigarettes by an individual in their personal luggage through an international airport;
(d) Further, it was submitted, the existence of legislation that prescribes minimal penalties in respect to the evasion of duty offences indicates that there is a minimum acceptable standard of penalty for this type of offending;
(e) Reference was made to what were referred to as “germane matters” to be considered in this type of offending set out in Chief Executive Officer of Customs v Tonmill,[31] wherein Hasluck J observed:
[31]op cit
“The decided cases indicate that relevant considerations in respect of sentencing for Customs offences set out in s234 of the Customs Act include the seriousness of the offence, the prevalence of the offence, the obvious difficulty of detecting breaches, the consequent need to impose deterrent penalties and the legislative policy embodied in the relevant provisions.”[32]
[32](op cit) at paragraph [25]
In both Haidary and Comptroller-General of Customs vAmini,[33] Judges Carmody and Davis respectively,[34] in each of those decisions, noted that relevant sentencing considerations which emerge from the authorities in relation to smuggling and evasion of duty payable in almost identical terms to Hasluck J.
[33][2018] VCC 327
[34]Both of whom sit on the County Court of Victoria
In Chief Executive Officer of Australian Customs Service v Karam (No 2),[35] it was submitted to be another penalty decision in respect of offending of this type, also involving tobacco. In that case, McCallum J noted, citing Kitto J in L Vogel & Son Pty Ltd v Anderson:[36]
[35][2013] NSWSC 33
[36]op cit
“‘… The Customs laws represent the judgment of Parliament upon an important aspect of the economic organisation (sic) of the community, and the object of the penal system [scil provisions] [is] to make that judgment as effective as possible. … .’”[37]
McCallum J noted also:
“… it is clear in my view that Customs Act offences are not to be regarded as victimless crimes … customs offences may similarly be regarded as having the community at large as their victim.”[38]
Again, Judge Davis, in Amini,[39] citing these comments of McCallum J, acknowledged that there is a need for both specific and general deterrence, given the nature of Customs offending and the consequences for the community at large.”[40]
[37]Karam (op cit) at paragraph [14]
[38](op cit) at paragraph [27]
[39]op cit
[40](op cit) at paragraph [38]
Particular aspects of the subject offending
32The solicitor for the plaintiff highlights the following matters:
(a) In relation to the making a false statement offence, the defendant had the opportunity to inform Customs he was importing the cigarettes on his IPC. The defendant ticked “No” top Question 2 on the IPC, which referred to more than 25 cigarettes.
The defendant admitted to the Customs officer that he had read and understood the questions on the IPC. The IPIC states that, if unsure, to put an “x” in the “yes” box. The defendant signed the IPC and, in doing so, declared the information was true and correct and complete.
Accordingly, it was submitted there was no excuse for the defendant not declaring the cigarettes, particularly so, as the IPC specifically referred to cigarettes. It was submitted that this is clearly a false statement, as the cigarettes (53,200 sticks) were located in the defendant’s luggage.
I accept this submission and consider that the defendant’s actions amounted to a conscious and deliberate action of making a false statement;
(b) Revenue from duties enliven a clear public interest in imposing penalties that deters conduct of this type in the wider community The offences are crimes against the community at large and follows the general deterrence as a significant factor in the imposition of penalties that reflect the impact of that conduct. Revenue is important for the public at large and attacks on revenue ought to be appropriately sanctioned and future conduct deterred.
Again, I accept this submission, which conforms to the various authorities to which I have referred;
(c) In relation to mitigating factors, I was informed that the defendant does not have a Victorian criminal history and, accordingly, must be treated as a first- time offender;
(d) The defendant has not provided any information or submission about his personal circumstances, so the plaintiff is unable to make submissions that are relevant to any appropriate mitigating factors which may or may not exist in his situation. In this respect, it was noted that s16A(2) only requires matters that are “known to the court” to be taken into account. As these matters are not known, they cannot be taken into account.[41] Of course, it is also relevant to note that the defendant has not sought to defend this proceeding by filing any pleadings or appearing before the Court at the return of the application for default judgment;
(e) Section 263 of the Act provides that in a Customs prosecution, a court may award costs against a party. In ordering such costs, the Court can exercise a judicial discretion as to the amount to be determined. In this respect, those acting for the plaintiff forwarded to the Court, what was referred to as the “Prosecution’s Schedule of Costs”. The total professional costs up to and including 12 April 2022 amounted to $25,909.50, from which 25 per cent was deducted, with the total amount claimed being $21,778.88.
I was also informed the costs incurred as at 17 February 2022 (when the matter first came on) was a net $14,000 (being 75 per cent of costs incurred at that time). In other words, approximately, $7,788 had been incurred as a result of the accidental slip in naming the residential address of the defendant correctly, thus causing the matter to be revisited by Judicial Registrar Gurry and further service of documentation.
[41]It is noted that in Comptroller-General of Customs v Amini (op cit) a determination as to penalty was made in the absence of this information
Conclusion
33I accept that the importation of tobacco by the defendant on 3 May 2019 involved three separate offences which are substantially connected and contemporaneous with each other.[42] In particular, I refer to the matter of Haidary,[43] wherein Judge Carmody stated:
“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 … 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.
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.”[44]
With great respect, I adopt the reasoning set out in such statement.
[42]See Section 16C of the Crimes Act 1914 (Cth)
[43](op cit) at paragraphs [21]-[22]
[44]Reference was made to Pearce v The Queen [1998] 194 CLR 610
34In relation to the smuggling offence and the evasion of duty offence, the relevant sentencing considerations which emerge from the authorities to which I have referred are: the relative seriousness of the offending; the prevalence of the offence; the obvious difficulty in detecting breaches; the consequent need to impose deterrent penalties (both for the offender and others) and the legislative authority embodied in the relevant provision.
35In general, I do not consider that the operation of importing the tobacco was particularly sophisticated, bearing in mind that the cigarettes were not in any way secreted but, rather, one suitcase being full of cigarette cartons.
36In this respect, the amount of duty payable was, at the time of offending, $43,504.30. This sum is significant, and I take into account Parliament’s intention, as expressed in the provision of s234(1)(a) of the Act in respect of the evasion of duty. The evidence before me establishes that this has only occurred on one occasion, but the need for specific deterrence is raised by the amount of the importation and the corresponding duty payable. Furthermore, for those reasons again, general deterrence should be given considerable weight given the nature of this type of offending and the consequences for the community at large.
37Considering the commonality between the various offences, I am conscious in determining an appropriate penalty for each offence, I must be mindful of the need to avoid double punishment and also consider the issue of totality.
38I do note that in relation to the penalty to be imposed in relation to the evasion offence, there is a minimum penalty of $87,008.60 and a maximum penalty of $217,521.50. However, as I have already recorded, the Act also requires that any penalty exceeding $84,000 (400 penalty units) is taken to be abandoned.
39The Court was referred to the High Court decision of Park v The Queen,[45] which gives some assistance in construing the proper approach in dealing where there are minimum and maximum penalties in circumstances where there is also a requirement to abandon an amount of any penalty over a certain sum. I intend to order a certain sum as the penalty in relation to this offence, bearing in mind the minimum and maximums specified under the legislation.
[45][2021] HCA 37
40I take into account the amount of duty which was payable, the need for specific deterrence and general deterrence, the relative seriousness of the offending (bearing in mind again, the number of cigarettes and the duty payable) and indeed, take account that the legislature has seen fit to legislate a minimum amount for this type of offending. Furthermore, as I have already recorded, other than this appearing to be the first offence committed by the defendant, there are no other mitigatory factors. However, I do take account of totality and double punishment.
41In all of the circumstances, I order that the defendant pay a penalty of $110,000. However, as already stressed, the relevant authority will only be able to recover $84,000, given the operation of s245(2) of the Act.
42Accordingly, I make the following Orders:
(a) in respect to the charge of making a false statement to an officer, the defendant is ordered to pay a penalty of $3,000;
(b) in respect of the charge of smuggling goods, the defendant is ordered to pay a penalty of $5,000;
(c) in respect of the offence of evading payment of duty that is payable, the defendant is ordered to pay a penalty of $110,000 (subject to the operation of s245(2) of the Act.
43I further order that the defendant pay the costs of the plaintiff fixed in the sum of $18,667.
44Such sum represents the total costs up to and including 17 February 2022, but without any discount of 25 per cent. I do not consider it appropriate that the plaintiff has its full costs up until 12 April 2022, bearing in mind that the accidental slip was, in part, brought about by the actions of the solicitors for the plaintiff. Although I clearly accept further costs were incurred after 17 February 2022 to rectify the accidental slip (and indeed extending the written submissions, as I have outlined above), I see no good reason why the defendant should bear all of those costs. As a compromise, I have ordered the total costs up to and including 17 February 2022, balancing that those costs may have been reduced on taxation, but also allowing, as it were, some aspects of the added work after 17 February 2022.
45I will hear the solicitor for the plaintiff on the form of the order that is sought.
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