Daly v Furjanic; Reardon v Furjanic
[1992] TASSC 65
•10 February 1992
Serial No 1/1992
List “A”
CITATION: Daly v Furjanic; Reardon v Furjanic [1992] TASSC 65; A1/1992
COURT: SUPREME COURT OF TASMANIA
PARTIES: DALY
v
FURJANIC
REARDON
v
FURJANIC
DELIVERED ON: 10 February 1992
JUDGMENT OF: Cox J
Judgment Number: A1/1992
Number of paragraphs:
Serial No 1/1992
List "A"
File No LCA125/1991
LCA126/1991
DALY v FURJANIC
REARDON v FURJANIC
REASONS FOR JUDGMENT COX J
10 February 1992
The prosecutors have appealed against the orders made in the Court of Petty Sessions, Hobart on pleas of guilty by the respondent to complaints under Commonwealth Legislation arising out of the importation of soil into Australia. The respondent pleaded guilty to an offence against the Customs Act 1901, s234(1)(d)(i), viz. that he, on or about the 16 August 1990, at Melbourne Airport, recklessly made a statement to an Officer of Customs that was false in a material particular, to wit, in a Customs Quarantine and Wildlife statement produced to the Customs Officer, in answer to the question "Are you bringing into Australia earth, soil or mineral samples?", he stated "No", which statement was false. He also pleaded guilty to an offence against the Quarantine Act 1908, s67(1), namely that at the same time and place he had knowingly brought into a port in Australia goods subject to quarantine, to wit, 1.6 kilograms of soil from Croatia without the permission of any authorised person. The court in each case ordered the complaint dismissed under the Crimes Act 1914, s19B.
The circumstances of the offences were that the respondent, a long–standing resident and citizen of Australia, brought with him from his native Croatia a small quantity of the soil of that country which he had just visited for the first time after his emigration 33 years earlier. His purpose in doing so was to deliver it to a Hobart funeral director so that when any of his fellow countrymen should be buried in the Croatian cemetery in this State a portion of soil from their native land might be sprinkled on the deceased's coffin.
Towards the end of a 22 hour flight a Customs Quarantine and Wildlife statement was handed to each passenger for completion. On the front of the form the following warning was printed:
"WARNING. Declare all drugs, food, plant and animal matter – penalties for drug and quarantine offences are severe. Giving untrue information to Customs can result in severe penalties and loss of goods."
On another part of the form twelve kinds of materials were prefaced by the question in bold print, "ARE YOU BRINGING INTO AUSTRALIA:". Alongside each group of materials were boxes to be ticked indicating an affirmative or negative answer. The eighth group was expressed as "Earth, soil or mineral samples". Other kinds of materials enquired of ranged from "More than 250g. tobacco products" or "More than 1 litre of alcoholic liquor" to "Food of any kind", "Plants or parts of plants" and "Biological specimens". The respondent had, in each case, ticked the box indicating a negative answer. His luggage was examined and the soil found. In mitigation it was put on his behalf, without dispute by the prosecution, that he was woken up with the request to fill in the form, that he was very tired at the time, and that in ticking the relevant boxes to furnish the answers required he had overlooked question No.8.
He had at first been charged on complaints issued and returnable in Victoria. He had written to the Australian Government Solicitor in that State indicating that he intended to plead guilty, but requesting that the complaints be transferred to Tasmania. This course was agreed to, the Australian Government Solicitor requesting payment of costs amounting to $150.00 which the respondent paid, and the prosecution was effectively transferred to this State with the discontinuance of the Victorian proceedings and the issue of fresh complaints.
The learned magistrate had before him certificates from health and veterinary authorities of the potential for the introduction of exotic animal diseases and plant pathogenes into Australia. The consequences of outbreaks of such diseases are disastrous.
The respondent was shown to be a man without any previous convictions, held in very high regard, not only by his own ethnic community, of whom he was a leading member, but also by the wider community. It was put to the learned magistrate and not challenged by the prosecutor that no attempt had been consciously made to secrete the soil, and that had he adverted to the relevant question and given an affirmative answer, the soil could have been neutralized and his altruistic purpose fulfilled without risk to the community.
The seriousness of these offences cannot be minimized. It has been the subject of consideration in a number of South Australian cases which were cited to the learned magistrate and mentioned by him at the time of passing sentence. The present penalty for the breach in question of the Customs Act is a fine not exceeding $5,000.00 (s234(2) of that Act), while that for the breach in question of the Quarantine Act is a fine of $50,000.00 or imprisonment for ten years, or both (s67(1) of the latter Act), although where prosecuted summarily, as here, the court may not impose a greater penalty than a fine of $5,000.00 or two years' imprisonment (s85, ibid.). These penalties are more than double those prescribed at the time the cases I will advert to were decided.
In Lanham v Brake: Van Velsen v Brake (1983) 52 ALR 351, Cox J of the South Australian Supreme Court dealt with an appeal from the dismissal under the Crimes Act 1914, s19B, of similar offences involving the importation in hand luggage by a New Zealand entrant to the country of three apples, the presence of which had not been adverted to by the defendant, if not at the time he filled the relevant form in (for it appears he had intended to consume them in flight), at least at the time of surrendering the form and disembarking. He, too, was of impeccable character and had no idea of the potential his act had for the introduction of fireblight, an extremely infectious and destructive bacterial disease of apple and pear trees. After considering some affidavit material relating to similar offences dealt with by the Adelaide Court of Petty Sessions in a ten month period not long before the appeal was heard, his Honour said, at 357 – 358:
"There were only three apples involved, and the respondent said that he was unaware of the possibility of any harm that could result from bringing apples into this country. That, so far as I can judge from the statistics to which I have referred and from what one would expect, simply makes him a typical offender. The temptation is obviously strong for overseas travellers to take, and act on, the view that these quarantine restrictions, while possibly necessary for commercial importers, cannot really have any sensible application to a handful of fruit or nuts or vegetable seeds and may therefore be, in good conscience, ignored. What harm could three apples do? But the information given to the special magistrate by the prosecuting counsel showed very strikingly that enormous and permanent damage to an important primary industry can result from the introduction of the kind of disease that can be carried in a handful of apparently healthy apples. None of this would surprise a reasonably well–informed Australian who is well used to hearing of the ravages caused since the earliest settlements from a large variety of introduced stock and cereal and fruit and vegetable pests. I should be surprised if things are much different in New Zealand but, at any rate, the respondent must have been given an impressive indication of the seriousness with which these things are regarded in Australia when, as I have no doubt happened, the interior of his plane was solemnly sprayed with insecticide, at its first port of arrival in Australia, before any passengers were allowed to leave it. The penalties provided for a breach of s67 of the Quarantine Act, even upon summary prosecution, are severe and necessarily so. They are also designed, of course, to deter much more dangerous offenders than the respondent, but the typical small scale offender, who prefers to substitute his own judgment about the risks involved for that of an expertly advised Parliament, is still committing a serious offence. It is important that summary courts give expression to the legislative policy indicated by the statutory penalty range. This is an area, in my view, in which considerations of deterrence much predominate. That does not mean that matters personal to a particular offender should not be taken into account, but it does mean that the fact that only a small quantity of a prohibited import was involved is unlikely to make the breach of the law unimportant, and a defendant's ignorance of the way in which his particular offence could put a primary industry at risk will usually be of little moment."
At 359, having adverted to the considerations a magistrate should refer to when considering whether the kind of power under s19B to mitigate penalty should be used, he said:
"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. In the light of all those matters, viewed against the disastrous consequences to the community that could result from a breach of these laws, any application by a defendant that the charge against him should be dismissed under s19B of the Crimes Act should, in my view, be regarded by the court with great circumspection. That does not mean that occasions for the exercise of these mitigatory powers will never occur. No doubt they will, but I should expect that appropriate instances will be uncommon."
Later, at 359 – 360, his Honour continued:
" ... I am satisfied that what prosecuting counsel said in this case implied that the risk involved in the importation of even three apples was not trifling. Furthermore, the seriousness of the respondent's offences is not to be measured solely by reference to the actual risk created in his particular case. It should be obvious to any traveller that these quarantine type restrictions are important and ought, as a matter of course, to be obeyed. No doubt an offence will be all the more serious where the risk of a disease thereby being introduced is demonstrably high, but it does not follow that offences of a less spectacular or less certain kind are not still serious. Two things about this kind of pest control are self–evident – that the nature and extent of modern travel and transport must make this country's continued isolation from the ravages of a great many of the world's stock and vegetable diseases quite precarious and, secondly, that the only hope of maintaining any sort of barrier against the introduction of such diseases rests upon an absolute prohibition against the importation of uninspected carrying agents, no matter how small the quantities."
Cox J quashed the order dismissing the complaints and substituted fines of $100.00 and $50.00 respectively. The same report, under the heading "Van Velsen v Dielos" commencing at 360, contains his reasons for quashing a similar order and substituting fines of $150.00 and $400.00 on a lady of Greek origin who brought into the country chestnuts and bean seeds from her mother's garden intending to eat the former and to plant the latter in her own garden in Australia. She had deliberately answered the relevant question falsely, realising that disclosure would prevent her from bringing them into the country.
In a later case of Holmden v Bitar: Crawford v Bitar (1987) 75 ALR 522, Cox J heard a similar appeal where the respondent, again of good character, had brought in but falsely denied having done so in the Customs and Quarantine statement, food in the form of five small tins of meat paté. Dealing with the magistrate's characterisation of the charges as "technical" and with his disposition of them under the Crimes Act, s20, his Honour, at 537, said:
"With all respect to the learned magistrate, I am of the opinion that his discretion miscarried in this case. There was a series of appeals under these Acts in 1983 and 1984 in which several judges of this court emphasised the need for realistic penalties for even small–scale breaches of the Quarantine Act or Customs Act provisions by ordinary travellers of good character: see, for example, Lanham v Brake (1983) 34 SASR 578; Tsorvas v Van Velsen (1984) 37 SASR 490; Gallego v Holmden (1984) 35 SASR 198; Lanham v Cafcakis 113 LSJS 167 and Lanham v Thorne 114 LSJS 427. There was nothing 'technical' in my view, about the respondent's offence, and I am inclined to think that that misdescription alone is enough to vitiate the learned magistrate's decision. Furthermore, to show that the respondent was of good character, that the quantity of undeclared goods was small, and that she was tired when she got to Adelaide Airport, simply showed that she was a fairly typical offender. On the other side of the ledger there was the seriousness of such offences and the need to impose penalties that will operate as an effective deterrent to others. I refer to my remarks on this subject in Lanham v Brake in order to save repeating them here. An exercise of the s 20 discretion required more than the mere establishment of one of the specified conditions. In my opinion, there was nothing about this case that could reasonably support the exercise of the discretion in the respondent's favour. To allow the magistrate's order to stand would be to subvert the sentencing policy that is indicated in the penalty provisions of the Customs Act and explained in the decisions of this court that I have cited."
In the present case, the learned magistrate accepted the potential for harm of the importation of untreated soil from Croatia; he accepted the respondent's innocent and indeed otherwise commendable purpose in doing so and the fact that he had no idea of its potential dangers; he accepted also the fact of the respondent's tiredness and inattention when filling in the form; and then considered the cases which I have cited. Finally, accepting the character references presented, he concluded:
"And so we have a person here of high repute, but as His Honour Mr. Justice Cox has said there's nothing unusual about people even of high repute being involved in matters of this nature. Under ordinary circumstances I would have thought that a penalty in the usual range, which appears to be in the sum of around about $150, would therefore be an appropriate penalty, but again there is a twist to this particular tale, and I'm not just using Geoffrey Archer's book title without good reason. In this State it is normal and I think very commendable that the Australian Government solicitors do not seek costs relating to the prosecutions that they bring. That situation, however, doesn't apply obviously in one of our Mainland States, Victoria, and I accept the proposition that the defendant, having been summoned to appear at the Broadmeadows court in Victoria, wrote to Melbourne, indicated that he would like the matter transferred to Tasmania, that he'd be pleading guilty in any event, but still had to pay $150 in costs to the Australian Government Solicitor's Office in Melbourne to cover what they had done to date. Now, it seems to me that the Commonwealth through the A.G.S. in Victoria have already meted out the penalty that I would have regarded as appropriate, and on that basis I think it would be singularly inappropriate for me to give him a double dose of the penalty when his intention to plead guilty was made very clear and he has followed that intention through, and I think it is a relevant factor to take into account then in the overall question of penalty. The end result is that I believe that under all of those circumstances and because I think he'd already had a penalty, maybe this is one of those few occasions where, despite the very seriousness of the charge, I think the matter could be properly dealt with under Section 19B of the Crimes Act and, accordingly, that is what I will do, so that both counts will be dismissed for that reason."
The applicants claim that the learned magistrate took into account an irrelevant factor in paying regard to the fact that the respondent had already paid $150.00 to the Australian Government Solicitor in Victoria. I do not think it can be said to be wholly irrelevant to the question of sentence. Just as a court may take into account the expense occasioned a party by having to travel a long distance to the court, or the loss of wages a hearing may cause, so too, in my view, the court may take into account an expense such as this. But it seems clear that the learned magistrate treated this as a decisive factor in determining to adopt the course permitted by s19B. In effect he was saying, "But for this expense, a monetary penalty of around $150.00 would be appropriate, but as that has in effect been exacted, I will dismiss the complaint." In my opinion, the incurring of an expense of this nature is relevant to a determination of the quantum of a monetary penalty if such a penalty is otherwise appropriate, but for the purposes of activating the discretion to dismiss the complaints under s19B, it is not, in my view, relevant.
In an area where, as Cox J says, "considerations of deterrence much predominate" (Lanham v Brake (supra) at p.358) the reduction of any financial penalty because of the defendant's impecuniosity or because he has already suffered a significant financial penalty, may still be accommodated, for it is the stigma of conviction and the imposition of some penalty, even if only token, which is likely to constitute a deterrent to the class of potential offenders whom the respondent typifies. However in this case the learned magistrate not only waived all financial penalty, but did not proceed to conviction at all, a course it seems clear he would not have regarded as appropriate but for this additional factor. In these circumstances I am satisfied that the exercise of his discretion was vitiated by error and that his orders must be set aside.
This was not, in my view, an appropriate case for dismissal of the complaints under s19B. The penalties for breach are severe; this fact is pointed out to travellers in the form itself; fatigue at the time of filling the form out is common, but travellers must accept responsibility for the accurate filling in of documents relevant to such important matters as quarantine; and the respondent admitted by his plea that he had filled the form in "recklessly". A draconian penalty is inappropriate to a person of the respondent's high moral character and, but for this incident, sense of responsibility to the community, but, in the circumstances of this case, without conviction and a moderate fine on each charge the court would not fulfil its obligation to enforce the law with any degree of consistency.
As to the quantum of fines for matters of this nature, I think it is unsafe to place any reliance on the evidentiary material placed before the Supreme Court of South Australia in 1983 if only for the reason that penalties have been significantly increased subsequently. I do not think it appropriate to offset the respondent's pretrial expense of $150.00 in full against the figure thought by the learned magistrate to represent a penalty "in the usual range, which appears to be around about" that sum. Nevertheless I bear in mind that he did incur that expense as a result of his offences. On Complaint No. 6492591 (the breach of the Customs Act) I impose a fine of $100.00. On Complaint No. 6492691 (the breach of the Quarantine Act) I impose a fine of $150.00.
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