Director of Public Prosecutions v MA

[2020] VCC 585

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01533

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIA MA

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2020
DATE OF SENTENCE:	8 May 2020
CASE MAY BE CITED AS:	DPP v Ma
MEDIUM NEUTRAL CITATION:	[2020] VCC 585

REASONS FOR SENTENCE
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Subject: possess tobacco products being reckless as to defrauding the revenue contrary to the Customs Act (Cth)
Catchwords: guilty plea – 2800 kg of illegally tobacco imported – $3,359,575.36 of duty and tax invaded – offender arranged for delivery of goods to a warehouse and unpacking – not a principal – a hired hand – modest expected financial gain – 1^st offender – excellent prospects of rehabilitation – unlawful noncitizen – inevitable deportation
Legislation Cited:
Cases Cited:
Sentence: 27 months imprisonment with reconnaissance release after serving 13 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg
For the Accused	Mr M. McLellan

HIS HONOUR:

1Jia Ma, on 5 May 2020 you pleaded guilty to a charge of possess tobacco products being reckless as to defrauding the revenue contrary to the Commonwealth Customs Act.  The maximum penalty for the offence is five years' imprisonment.

2The circumstances of your offending are set out in the summary of prosecution opening for plea.  They are agreed facts. 

3On 26 March 2019 a consignment of 2800 kilograms of loose-leaf tobacco arrived at Melbourne from China.  The tobacco was packaged in crates and shipped as envelopes to avoid defrauding the revenue of duty and GST of $3,359,575.36.

4Australian Border Force officials had detected the concealed tobacco and covertly managed its transit through customs.  The named consignee had no knowledge of the importation.  Someone in New South Wales was using the consignee's nominated mobile phone number, which had been subscribed in a false name, to clear the consignment through customs.

5You communicated with the user of that number using your own phone service, and two other phone services which had been subscribed using false identities, to arrange for customs clearance and delivery of the crates to premises in Melbourne.

6On 28 March, you arranged a funds transfer to pay the customs broker's fees.  On 30 March, using one of the falsely subscribed phone services, you rented a warehouse space at Burwood.  You told the landlord you wanted the space to store building materials imported from China. Later that day, you met the landlord and paid him $1800 cash for one month's rent. He gave you a key to the warehouse.

7On 10 April 2019, someone using the consignee's email address arranged for delivery of the crates to the warehouse.  One of the false phone numbers which you used was given as the contact for delivery.

8On 12 April 2019, a delivery company transported the crates to the Burwood warehouse.  When the driver arrived, he telephoned the contact phone number and, half an hour later, you arrived at the warehouse and unlocked the roller door.

9You gave the driver instructions for unloading and signed a delivery acknowledgement form.  You waited nearby and, using WeChat, contacted Lam Truong who arrived in a three-tonne rental van with a passenger,
Phat Le.  The three of you unloaded the boxes of tobacco from the crates.

10When Australian Border Force officials arrived, you tried to run away but were arrested.  On one of your phones there were photographs and WeChat messages which showed unpacked crates, calculations of the quantity of tobacco and arrangements to load the tobacco into the rental van.

11When investigators interviewed you, you admitted you had rented the warehouse and you went there to accept delivery of goods which were to be collected by another person with a truck.  You said someone at the casino recruited you for the job and you were to be paid $2000 in addition to the warehouse rent you had paid.

12You said although you did not know what the goods were, you knew or suspected they were illegal.  You were charged and remanded in custody.

13You have no criminal record. 

14At the time you offended you were aged 42 years.  You are now 43.  You were born in Haman, a central Chinese province.  You went to local schools until Year 10 and then worked as a labourer on construction sites for around seven years.

15After a short-lived, unsuccessful attempt to run a small hairdressing salon you returned to labouring. 

16In 2008 you came to Australia on a tourist visa.  You obtained labouring work usually for cash in hand here and overstayed your visa.

17When you offended, you were living in a bungalow at Blackburn.  You fell into gambling.  Your labouring work was irregular.  Some weeks you earned $1000, others only $100 or $200.  In the context of money problems, you accepted the offer of illegal work.

18You have been too ashamed to tell your parents of your offending and you were concerned their worry for you will be a burden on them.  You plan to eventually tell them and to return home to Hanan.

19Australian Border Force has served you with a s.254 Migration Act notice.  As an unlawful non-citizen, you will be removed from Australia when you are entitled to be released from custody. 

20Your offending was serious.  The amount of revenue defrauded was substantial. 

21Your role was integral to the success of the criminal operation. Over a four-week period, you paid for the crates containing the tobacco to be cleared from customs, you rented a warehouse to store them and you coordinated their delivery to the warehouse and collection for distribution of the tobacco in the community. 

22However, you were not a principal in the enterprise.  You were a hired hand and your anticipated financial gain was modest.

23Mr McLellan, who appeared on your behalf, in written and oral submissions, relied on the following factors in mitigation of penalty.

24Firstly, your guilty plea, and cooperation with authorities, for their utilitarian value and as evidence of your acceptance of responsibility and remorse.

25Secondly, your excellent prospects of rehabilitation considering you are a first offender, you have no mental health problems or drug or alcohol issues, you have a good work record and when you return to China you will resume work in the building industry and live with your family.

26Thirdly, the hardship of your inevitable deportation for the loss of the opportunity to continue to make your life in Australia.

27I accept the force of his submissions. 

28Mr McLellan conceded your offending warrants a term of imprisonment.

29He submitted the period of your incarceration should not exceed the time you have already served in remand custody; that is, nearly 13 months. 

30On behalf of the Crown, Mr Ginsbourg, in written and oral submissions, contended that general deterrence is a primary factor in sentencing persons for offences which involve defrauding the revenue.

31He noted legislative amendment in 2018 increased the maximum penalty for offending of this type from two years to five years' imprisonment and he submitted your crime calls for a custodial sentence.  Specifically, he submitted a recognisance release order would be an appropriate release mechanism, and, more specifically, in oral submissions, contended the term of imprisonment before your release on recognisance need not exceed the time you have already served.

32The Crown also helpfully provided me with a table of comparable cases.  I have read them and, making appropriate adjustment for the differences between the circumstances of the offending and the personal circumstances, I have used them as a yard stick to measure the sentence I should impose in your case.

33You are a federal offender who must be sentenced in accordance with the provisions of Part 1B of the Crimes Act.  When sentencing a federal offender, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

34The court must consider the factors set out in s.16A(2) of the Crimes Act if those matters are relevant and known to the court, although the list of factors is not exhaustive.  Other common law principles of sentencing apply in order to determine a sentence of severity appropriate in all the circumstances.

35Division 4 of Part 1B of the Crimes Act governs the fixing of non-parole periods or the making of a recognisance release order.  For an offence of this type the primary sentencing considerations are deterrence, both general and specific, and the need for just punishment.

36For those reasons I must impose a sentence of imprisonment upon you.  However, I have moderated the term of imprisonment and the period of your actual incarceration to take into account your guilty plea, your excellent prospects of rehabilitation and the additional punishment of deportation.

37By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

38Having considered the circumstances of your offending and your personal circumstance and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you on the charge of possess tobacco products, being reckless to defrauding the revenue you are sentenced to two years and three months' imprisonment which sentence commences today.

39Pursuant to s.20(1)(b) of the Crimes Act I direct you be released after you have served 13 months of the term of imprisonment I have imposed. 

40I declare you have already served 392 days of your sentence by way of presentence detention.  That is a period of very nearly 13 months.

41But for your plea of guilty I would have imposed a term of three years' imprisonment and directed your release after two years. 

42The effect of the recognisance release order is you will serve 13 months' imprisonment and you must be of good behaviour for 14 months thereafter.

43I fix the recognisance in the sum of $1000.  You will not be liable to pay that money unless you commit a crime punishable by imprisonment during the
14 month period.

44Because I have declared you have already served very nearly 13 months of your sentence you should be eligible for release within the next day or two.

45HIS HONOUR:  Mr Ma, we will have the recognisance sent to the gaol and you will be asked to sign it and, when you have done that, I will make the sentencing order.  That concludes the proceeding.  Mr Interpreter, thank you for your assistance. Adjourn the court please.

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