Director of Public Prosecutions v Keefer

[2016] VCC 1805

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01733

DIRECTOR OF COMMONWEALTH PUBLIC PROSECUTIONS

v

DANIEL KEEFER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 November 2016
CASE MAY BE CITED AS:	DPP v Keefer
MEDIUM NEUTRAL CITATION:	[2016] VCC 1805

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms K. Breckweg
For the Accused	Mr D. Sala

Pages 1 - 10

 

 

1HER HONOUR:  I have heard all the material.  You can stand up
Mr Keefer.

2I have no doubt that you have taken your role as provider incredibly seriously and that probably extends on to the next generation, that is your grandchildren.  You have been extraordinarily foolish and it has clearly cost you dear.  Very fortunately for you quite apart from Mr Sala's help, you have one of the most experienced Commonwealth prosecutors in the State in this court who has because of the material she has heard, gone and  sought further instructions.

3I had formed a view during this plea that in terms of any danger you present to the community and to some extent, your moral culpability was such that I would prefer not to have to send you to serve an immediate term.  That was going to be a more difficult exercise I thought, because ordinarily the attitude in relation to significant tax evasion, is very severe and almost inevitably, particularly when you are talking about $8m. worth of revenue, would result even in someone of good character such as yourself, having to serve a term of imprisonment.  Fortunately, the indication has been, that although the preferred position of the prosecution would be because of the amount of revenue lost involved, is so high that you should serve an immediate term, it has been conceded that because of your background, if I were to deal with you by what is called a sentence of imprisonment where you are immediately released on you entering into recognisance to be of good behaviour, that would not  be considered outside the appropriate range or resisted by the Crown.

4In straight terms sir, you are going to avoid gaol today and I cannot say this more fervently and probably with less requirement, do not do it again.  Have  a seat
Mr Keefer because this is not a case where I can just say this is what you are getting and you have to go.  I have to frame reasons which I propose to do now.  Thank you, have a seat sir.  Do you understand what I have said?  You can have a seat, thank you very much.

5Daniel Charles Keefer you have pleaded guilty before me today to one charge of importing goods, being tobacco products with an intent to defraud the revenue contrary to s.233BABAD(1) of the Customs Act 1901 Commonwealth.

6The facts underlining your offending are as follows.  I attach the far more detailed prosecution provided on this plea to my sentencing remarks, but in short compass your offending was as follows.

7You were the owner of a business Dezign for Life situated at a factory at 55-59 Rosamond Road, Maidstone in Victoria.  You were the sole director of this firm which traded as Flooring & Bathroom Bonanza.  In the course of your business as I understand it, you ran into some financial difficulties.  Your rent was raised significantly and at the same time, a major customer to whom you had supplied goods for many years, became  bankrupt, owing you $50,000. 

8As a result of this financial pressure you discussed the matter with another person to whom you supplied, that person being unbeknownst to you, a member of the Haddara family, a family which, although not all its members can be said to be criminal, is well known to this court.   As a result of that discussion he said he could assist you by referring you to his nephew, a man known a Khaled Hussain whose real name is Mohammed Haddara. 

9You had discussions with this man and he said that a certain sum would be provided to you if you allowed your premises and business to be used in order to assist in the importation of a container of goods which would ordinarily be used by you, but in which would be concealed, a large amount of tobacco.  The aim of this exercise of course, was to bring a large amount of tobacco into this country which could then be sold without first being subjected to the very considerable taxes that are now imposted upon such a substance.  This you agreed to do and arrangements were made.

10Ultimately a container containing what were said to be 600 cartons of toilets, addressed for delivery to you and to your business premises, arrived in Australia on   19 August 2013.  Examination of the contents resulted in the discovery of some irregularities and indeed, when the container was ultimately examined, it was discovered that behind rows of boxes containing toilets, toilet seats and cisterns, green mesh bags were stored, x-rayed and found to contain 340 bales of tobacco leaf wrapped in hessian.  Each bale weight approximately 50 kilograms, the total weight of the tobacco being 17,009 kilograms.

11It was decided by Customs to proceed with the delivery by way of what is called a controlled delivery, which meant that the contraband was removed from the container, replaced with ballast and the container then delivered to your premises.  The delivery of course was made under police surveillance.

12It became evident to you, given your experience in importing goods from overseas legitimately for your business, that there had been a more than normal delay; that is the container had arrived on 19 August, arrived on 23 August and no information as to release was given to you until   28 August 2013, by which time, as I have said, it was evident to you that something had gone wrong.  That probably your worst fears had been realised and that the contraband tobacco had been located.

13At that stage you began to disassociate yourself from this container in emails to the shipping authorities stating things such as, "I have no idea what this container is" and other protestations to that effect.  Indeed on 30 August 2013 when you received an email from the shipper advising you that the container was ready for collection you replied, "As stated before, this is not my container." 

14Eventually the container was as I said, delivered on 29 August and that evening Customs Officers who had entered the car park at your business premises, noted that the container door was open, that there were boxes on the ground and there was a  forklift parked near the shipping area. 

15Phone records revealed that you made a number of calls to Hussain who attended to the shipping container along  with trucks and other men and indeed, it was noted that you made a forklift from your business, as well as one of your employees, available for the removal of the items from the container. 

16Australian Border Customs and Control Police executed a search warrant at your Dezign for Life premises on 30 August 2013 at which stage it was noted that the container was still there and had ultimately been abandoned,  probably because the ballast which had been placed in the container in place of the tobacco, had been discovered.

17You told police you knew nothing about it.  You stated in a record of interview that you thought there was, "It was a bit funny" that you knew the container, "Had gone to x-ray because it had been so long.  So I thought something is not right here."  You gave police no information really except that you had no involvement with this container.  Ultimately in December 2014, you were charged.

18A one day committal was conducted.  You entered a plea of not guilty and this matter proceeded by way of a trial earlier this year at which time a specific submission was made by your counsel as to the admissibility of a particular piece of evidence, which I ruled against and thereafter you entered a plea of guilty.

19I now turn to your personal circumstances.   You are 65 years of age.  You were 63 at the time of this offending.  You have no prior convictions. 

20You have had a long and entirely praiseworthy working history.  You were born in Canada, you came to Australia with your parents when you were about four or five.  Your father was a church minister, as a result of which the family moved around a great deal and you were sent at about the age of 11 or 12 to boarding school where you remained until you completed Year 12.

21Thereafter you began work as at an abattoir and then factory work.  You became a furniture salesman, then a store manager, then spent time again as a salesman.   You studied at Bible college when you were about 29 or 30 and worked as a pastor for two or three years.  You then became manager of a business known as Send Furniture and then when you were in your late 30s, you opened your first furniture business.  You went to Canada for a year with your family where you worked as a salesman.  Returned again to Australia working a salesman, opened your second business, Think Furniture, which you ran for about eight or nine years.  Then finally at the age of 59, you opened your third business which had been running for some years prior to your arrest on this offending.

22You married when you were in your early 20s, you had four children.  Two of those children gave evidence on the plea.  It is quite clear you have always been a concerned and committed parent.  You found your own childhood somewhat lonely and your family somewhat distant as a result of your experiences at boarding school and your family moving around.  And it appears according to both your children Ruth Wilson and your son John Keefer, who gave evidence on this plea, that you were determined that would not occur and they described growing up in a close family where although you worked very long hours, you always presented as a kind, caring parent to whom they could always turn. 

23Both gave evidence not only of your very strong involvement in their lives, but your continuing involvement as a grandparent, where  I heard you go well beyond what would be expected in that role, and have an extremely active involvement in those children's lives as well.  I gained the impression that over the years you have regarded yourself as someone who is a point of reference for and a provider for, not only your family but your extended family. 

24Your son John moved in with his two children to live with you about three years ago and gave evidence of your involvement in that regard.  Your daughter Ruth gave evidence about what you do for her and her three children, and it was through their evidence that I very much gained the impression that I have just described.

25I have no doubt  that the decision that you made was one which was entirely out of character for you and was brought about by the unusually difficult financial circumstances you found yourself in.

26The explanation that was given to me  about your involvement in this offending, remains no more than that.  As you are no doubt thoroughly aware by now Mr Keefer, you engaged yourself in a very illegal and dangerous enterprise.  You have been facing the prospect of immediate gaol square in the face, for some time now.  I have no doubt given your previous long and very good history, that this whole business of being arrested and charged and being advised as you no doubt have been, of the likelihood of you being gaoled, has been one which has had a more than salutary effect upon you and which has been an extremely distressing business. 

27It is my view that your prospects of rehabilitation are excellent.  I doubt that the courts will ever see you again and I doubt that but for this financial situation you found yourself in and your unusually high standards as a provider, a court would never have seen you before it.  But you need to understand that your first foray into the criminal world was at a fairly senior level and has brought you before the County Court, which is a court which can only hear matters which are of a particular seriousness.

28As I doubt that a court will ever see you again, I do not regard the aspects of specific deterrence, punishment or protection of the community to be relevant to the sentencing exercise before me.  But the issue of general deterrence, that is, the imposition of a sentence of imprisonment which is designed to deter other people minded to behave in the criminal fashion that you did, is a very live issue in this sentencing exercise.  That is, ordinarily I would be expected to impose a sentence upon you which would effectively frighten and deter other persons from behaving in the way you have.   Ordinarily, given that the amount of impost or taxation sought to be avoided was in the order of, or specifically was $8,356,776.70, this offending would result in a considerable immediate sentence of imprisonment being imposed.  Were it not for the fact that at the age of 65 you present with the impeccable lifestyle that you have, there is no doubt you would have been sentenced to such a term of imprisonment. 

29I note that on 29 April this year your co-accused Khaled Hussain was sentenced by His Honour Judge Coish in respect of precisely the same charge as you, to a term of imprisonment of two and a half years, to be released after 12 months after entering into a recognisance in the sum of $5000 to be of good behaviour for two and a half years.

30I am satisfied that I can distinguish between you and Mr Hussain.  I am  satisfied that your role was a lesser role.  It was a significant role because without your cooperation and the assistance that you gave, the contraband, the illegal importation could not have been effected.  Nevertheless I am satisfied that the mover and shaker if you like, the operator was indeed Khaled Hussain.  Further, it is clear that Mr Hussain was also dealt with, albeit in the Magistrates' Court, for other offences involving the illegal sale of tobacco which had not been the subject of impost and therefore stands at a further distance from you in terms of the sentencing exercise and the requirements of parity; that is, the requirement that co-accused are treated in the same way are concerned.

31In all the circumstances I have decided that the general deterrent aspect, that is the requirement that this court deal with you in a way of sufficient seriousness, while at the same time recognising the mitigatory factors in your case, can best be achieved by the imposition of a term of imprisonment but a term from which you will be released upon you entering into a recognisance to be of good behaviour.

32Could you stand up please sir.  On the charge of importing tobacco goods with intent to defraud the revenue I sentence you to a term of imprisonment of 18 months.  You will however, be immediately released upon you entering into a recognisance to be of good behaviour in the sum of $3000 for a period of two years.  What that means is, if you enter into this recognisance you must be of good behaviour for the next two years.  If you commit another offence punishable by imprisonment you will breach that recognisance, you will be brought back in front of me and I will sentence you again on these original charges.  You do not have to pay the $3000 unless you do commit an offence in the next two years, at which stage you will also have to pay the $3000.  Are you willing to enter this recognisance?

33OFFENDER:  Yes.

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35HER HONOUR:  Have a seat sir we will prepare the paperwork.  I wish to also comment that quite understandably, the original attitude of the Commonwealth Office of Public Prosecution was that you should serve a term of imprisonment.  But as I have said, fortunately for you, you have a most experienced prosecutor in this case who then went and sought further instructions so that I am able to act in the way that I have been and I am extremely grateful to her.  I also thank Mr Sala in his assistance in the plea in this matter.  I will now sign this.  I will get you to sign this thank you Mr Keefer.

36MR SALA:  Your Honour may I approach as he signs it.  I just noticed it's a little (indistinct) in this running a professional ‑ ‑ ‑

37HER HONOUR:  Very good thing, off you go.  You need to have it happen more often.  We've been putting up with it forever.  All right, thank you.  We're just referring to the fact that usually the court is crammed with male practitioners and the tide is finally turning.  I also note that whilst Mr Hussain pleaded a much earlier stage than did you, your position at law was somewhat different and the basis on which you sought to plead not guilty was very much related to a single legal point, which when not successful resulted in the prompt entry of a plea of guilty.  Thank you.  I'll return - I also need to add that I received a raft of references from family and friends also speaking very highly of your ordinarily honest, hardworking and charitable nature, as well as the evidence from witnesses in this court, Mr Graham Reny and
Ms Amanda Herauville.  Thank you. 

38Do I need to do a s.6AAA declaration.

39MS BRECKWEG:  Yes Your Honour.

40HER HONOUR:  Yes pursuant to s.6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of 18 months and order that you serve a minimum term of nine months.

41MR SALA:  As Your Honour pleases.

42MS BRECKWEG:  As Your Honour pleases.

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