Director of Public Prosecutions v Tianxue Sun
[2021] VCC 653
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-19-00011
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIANXUE SUN |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2021 | |
DATE OF SENTENCE: | 19 May 2021 | |
CASE MAY BE CITED AS: | DPP v Tianxue Sun | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 653 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Legislation Cited: Commonwealth Code (Cth); Customs Act 1901 (Cth); Crimes Act 1914 (Cth)
Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Zhang (2017) A Crim R 113; R v Pham (2015) 256 CLR 550
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr J. Saunders Ms A. M. Haban-Beer | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr N. Papas QC | JK Lawyers |
HER HONOUR:
Introduction
1Tianxue Sun, you were charged on indictment with one charge of attempt to possess goods, namely tobacco products, knowing that the goods were imported with the intent to defraud the revenue, contrary to ss11.1(1) and 11.2(A) of the Criminal Code (Cth) and sub-s233BABAD(2) of the Customs Act 1901 (Cth), and four charges of aid, abet, counsel or procure the commission of an offence, namely import tobacco products with the intention of defrauding the revenue contrary to sub-s11.2(1) of the Criminal Code (Cth) and sub-s233BABAD(1) of the Customs Act 1901 (Cth). You pleaded not guilty to all charges in a trial by jury ensued before me. You were found guilty by the jury of Charge 1, the attempt to possess tobacco products charge, and Charge 3, which was one of the aid, abet, counsel or procure charges, and I now turn to sentence you on those two offences. You were acquitted by the jury of another two charges, and the jury was unable to reach a verdict in relation to the last charge.
2I have received Crown submissions on sentence dated 23 April 2021 (Exhibit A) and a Crown table of comparative cases (Exhibit B) in the course of the plea in mitigation of penalty. Your counsel relied on written submissions for plea dated 20 April 2021 (Exhibit 1), a GP referral and mental health care plan dated 13 January 2020 (Exhibit 2), a GP referral letter and mental health care plan dated 17 February 2021 (Exhibit 3), a letter from general practitioner dated 23 February 2021 (Exhibit 4), letter from registered psychologist, Chloe Pang, dated 23 February 2021 (Exhibit 5), a report from forensic pathologist, Dr Mathew Barth, dated 4 April 2021 (Exhibit 6), and a bundle of character references (Exhibit 7).
3I have had regard to each of those exhibited documents in formulating these reasons for sentence.
Circumstances of the offending
4Both of your charges related to importations of tobacco products that occurred in April and May 2018.
5Prior to this period, you participated in organising the lease of two residential premises in suburban Melbourne. In February 2018, a gentleman named Hung Fey TEY was asked by his boss, Mr Huang, for a favour, that is to rent a house for his friend Michael, for Michael’s mistress. You admitted in your trial that you were known by that name.
6On or about 11 March 2018, you and Mr Tey went to a house at 2/9 Curlew Court, Doncaster, for an inspection. You brought a friend, that the prosecution allege was Mr Chen. You later spoke to Mr Tey and told him that you wanted the house, and you gave him money for the bond; Mr Tey said he signed a lease on your behalf for that address and you later paid the rent for these premises.
7Also in March 2018, you then asked Mr Tey if he could help you find another house. You then visited premises at 13 Collegium Avenue, Wheelers Hill. The owner described you asking if the garage was working well. On or about 18 March 2018, Mr Tey signed the lease at your request, and you provided money for a bond and one month’s rent.
8Mr Tey’s evidence was that his boss asked him to set up two companies, and then associated bank accounts were opened. The prosecution case alleged that you used these accounts to transfer significant amounts of money, funding the importation of cigarettes from China.
9On 3 April 2018, a shipping container arrived through sea cargo in Melbourne from China. The importer was recorded on the consignment documentation as Bridgeworld International Pty Ltd, and the shipper was listed as “Shenzhen New Asia Logistics Co Ltd”. An Australian company named Bridgeworld conducted a legitimate business in Port Melbourne, however, inquiries revealed that that company had no involvement in importing goods from China, and its name as the importer was used without the company’s permission.
10Contained within the container were wooden crates, with the word “Keon” handwritten on many of them. The prosecution case at trial alleged that Keon was likely to be a person involved in the scheme to import the cigarettes, a person other than you. After the consignment arrived in Australia, an employee of a customs brokerage firm named Curlett Cannon and Galbell, who had been employed in relation to this container, received an email falsely purporting to be from Bridgeworld, with a bank deposit of $1,238.63 being paid directly into the company bank account. This email was sent to establish payment of a customs fee in respect of the consignment. The duty payable on the consignment was $7,281.36 which was substantially lower than the amount of duty payable if the goods had been declared as tobacco products.
11The goods arriving in the container were referred to as 27 packages of compressor accessories.
12On 5 April 2018, Australian Border Force employees examined the shipment and noted 18 wooden crates and one pallet with nine boxes contained therein. An Australian Border Force officer x‑rayed the consignment, and saw anomalies within the 18 crates which indicated cigarettes within the fans which were inside.
13At some stage, the Curlett Cannon and Galbell employee received instructions from Keon, changing the delivery address from Beach Street, Port Melbourne to an address at 13 Collegium Avenue, Wheelers Hill, Victoria. Delivery was arranged to the Wheelers Hill address through another company.
14As a result of the detection of cigarettes in the compressor fans contained within the shipment, Australian Border Force authorities had arranged to conduct surveillance of the delivery to the address in Wheelers Hill. You, and a number of other people, were observed and photographed on 11 April 2018 at the address. Border force officers observed a white Toyota van registered to a gentleman Hanhua Chen driving away from the premises and parking at the Springvale train station. Officers observed a quantity of large cardboard boxes in the rear of the vehicle, consistent with some of the cigarettes being transported from the address. The search warrant was later executed at the Collegium Avenue address two days later; the house was unoccupied and in the garage there were large green metal fans that were all empty.
15Authorities later searched Mr Wang’s home address pursuant to warrant and found a spreadsheet supporting an inference that Mr Wang was involved in a distribution scheme in relation to Chinese-branded cigarettes, together with a large amount of cash. Phone downloads from Mr Chen’s phone provided further support to the existence of an ongoing scheme to import cigarettes in March, April and May of 2018. Mr Chen left Australia on 18 May 2018 and has not returned.
16The prosecution alleged that on 11 April 2018, you committed the offending referable to Charge 1 jointly with Mr Wang and Mr Chen, by your attempts to possess the tobacco products by taking delivery of a consignment at 13 Collegium Avenue in Wheelers Hill.
17Investigators learned that the property was leased in the name of Hung Fei Tey. , and as I’ve mentioned, Mr Tey gave evidence that he was asked by you to rent the house for you for your mistress.
18This is the offending referable to Charge 1, of attempt to possess goods, namely tobacco products, knowing that the goods were imported with the intent to defraud the revenue, contrary to sub-s233BABAD(2) of the Customs Act 1901 (Cth).
19Of the other people photographed at the address, two of the people were later identified as Mr Chen and Mr Wang.
20As far as this is the offending referable to your Charge 1, the maximum penalty for the offence is imprisonment for 10 years, five times the amount of duty payable on the day the offence was committed, or both. Where the duty is unable to be calculated, the maximum penalty is imprisonment for 10 years, a fine of 1,000 penalty units, or both.
21In the course of the trial, the informant gave evidence[1] that the consignment contained an estimated 800,000 cigarettes. Although I am unable to say with any specificity, if I accept that estimate as accurate, the maximum penalty includes a fine of $3,126,024. Having regard to the fact that that was an estimate only, and the fact that the delivery was not intercepted or subject to any further analysis by investigators, I consider that the safer approach is to find that the maximum fine for the purpose of this evaluation is $210,000.
[1]Transcript (“T”) 509, Lines 26 – 31
22After the arrival of the consignment, the subject of Charge 1, you said that you did not want the Collegium Avenue property anymore.
23In relation to your offending the subject of Charge 3, the consignment was addressed originally to Bridgeworld International in Port Melbourne, like the consignment the subject of Charge 1. As in relation to Charge 1, the goods were misdescribed as “Centrifugal fan accessories”. A customs broker company paid the customs duty for the consignment, at $998.29, which was substantially lower than the duty payable if the consignment was known to be cigarettes. The duty was later increased to $1,196.30, still much less than the appropriate duty calculable. A photograph of the invoice for the import duty, and the invoice from the customs broker, relating to the subject matter of this charge were later found on WeChat messages on your phone.
24On 16 May 2018, the director of the freight-forwarding company which had been engaged in relation to the consignment communicated with the apparent addressee via email which changed the delivery address of the consignment to Unit 2/9 Curlew Court, Doncaster. The details on the documentation in relation to the consignment described the consignment as being thirty packages with the reference “Keon”, which is a name also used in relation to Charge 1.
25On 21 May 2018, Border Force officers examined the consignment and found that hidden inside green industrial-sized fans identical to those which were the subject of Charge 1, were foil-wrapped cartons of “Double Happiness Cigarettes”. The cigarettes were sampled and analysed and determined to be tobacco products. There were twenty crates containing an estimated 893,000 cigarettes.
26As the cigarettes on this occasion were intercepted, the verdict relating to your aiding, abetting, counselling or procuring of imported tobacco products with the intention of defrauding the revenue differs in its verdict from Charge 1. This is the offending referable to your Charge 3. The maximum penalty for the offence is imprisonment for 10 years, five times the amount of duty payable on the day the offence was committed, or both. The maximum penalty for this offence is therefore imprisonment for 10 years, a fine of $3,490,440.20 or both.
Personal circumstances
27You are now 34 years of age, and were 32 at the time of your offending.
28You were born in Shenyang, China. I was told that your parents’ relationship was volatile during your childhood, and your father was a heavy gambler and was regularly violent and abusive towards you. When you were nine years of age, your mother worked away and your father was your primary carer, which you consider to be a very distressing time for you at this key developmental age. You commenced schooling in China, and whilst you were still in primary school, your mother returned to live at home and your father moved to Italy. You have had minimal contact with your father since that move, and none in the last 10 years. You were then raised primarily by your mother, to whom you are very close.
29In 2000, when you were approximately 14 years of age, your mother moved to Australia and she has lived here for the last 20 years. You remained in China on your own to continue your studies and have many close relatives who lived near you. You completed primary and high school in China, and initially pursued a career in nursing as a number of your relatives were employed within the medical profession. You graduated in 2007 from Fushun Health School, and then from 2007 to 2008 you attended your medical practical year in various health care departments.
30From 2008 to 2010, you started learning English to prepare for a pending move to Australia. You arrived in Australia on 12 January 2010 on a family reunion visa to live with your mother, and you are now an Australian citizen. After you arrived, you studied English at Swinburne University, although I note that you consider that your English proficiency level is still quite poor.
31You then shifted from our career in nursing, to building and construction and found an apprenticeship in carpentry. In 2011, you registered your own company, and worked from 7:00am to 3:00pm daily as a sub-contractor, and then from 3:00pm to 1:00 or 2:00am on your own building work, and for your own clients. The first few years after you incorporated were very hard work. In 2012, the business started to grow and you were able to engage your own sub-contractors.
32You subsequently operated the business under different company names, and the business grew to a point where at its largest, you engaged around 80 contractors. In anticipating the proceedings before me, you downsized to engage 11 sub-contracting workers. The future of your business remains unclear.
33You have a wife, and two young daughters, aged seven and eight. You are a very active father and have a close bond with your children.
34You have no prior or subsequent criminal matters. I accept and take into account that at the time of committing these offences, you were a person of good character, and I afford mitigatory weight to that fact. I have received a bundle of character references that endorse this view as to your good character. For instance, you have been known to Feng Xue for nine years, and you are in daily contact for work and have become good friends over time. I was told that since your conviction you have been in a state of trance, and you often have difficulties with sleep. As far as the author knows, if you are sentenced to imprisonment, your wife and children will have no source of income. You are described as a cheerful and responsible person with national pride.
35Yiwen Chi told me that you got to know each other at a friend’s birthday party, and have developed a friendship. Although you have a busy working schedule, you do not miss out on any of the kids’ and family activities. You are a decent hardworking and trustworthy person and a caring father and responsible husband.
36Your mother, Li Xue, told me that she is a single mother, who raised you on her own. It has not been easy for her, but her personality is optimistic, openminded and strong. You have not been the perfect child, but she knows you are a good kid, kind and innocent. You have encouraged each other and relied on each other during your journey, including to Australia. She has seen you grow into a generous and forgiving father and responsible husband. Your mother has eye conditions, which make it difficult for her to see things, and she will also need a hysterectomy.
37Your wife, Peixin Zeng, told me that you have been married for more than 10 years, and have two daughters, and you are their pride. Since you have been charged, you have been under tremendous pressure in your daily life and spirit.
Mental health diagnosis
38I note that on your arrival in Australia, you had some difficulty adjusting, and sought treatment from a general practitioner who has provided a report to me. You were prescribed the sleeping tablet Stilden in November 2010, and your general practitioner notes that you continued to need this group of medicine, with insomnia and vague depression symptoms. In June 2018, you were prescribed the antidepressant Avanza, and have been on this medication since. You were also referred for psychotherapy in January 2020 with a diagnosis of Major Depressive Disorder.
39The psychologist you consulted provided me with a report and told me that since 2018, your psychological condition has deteriorated, as you were stressed about “the legal issues related to your taxation matter.” During that time, you reported low mood, a lack of motivation and interest, irritation, fatigue, impaired memory, suicidal thoughts, preoccupation with worries, and recurrent panic attacks. Psychologist, Chloe Kit Ying Pang, noted that based on her initial assessment of you, you seemed to have displayed symptoms of generalised anxiety disorder and Major Depressive Disorder.
40You were assessed by psychologist, Dr Mathew Barth, who also provided me with a report. He observed that your emotional demeaner was very downcast, dysphoric and subdued, and you appeared very lethargic and on the verge of tears on several occasions. You reported to him issues with your self-esteem from a young age, predominantly due to inadequacy and rejection as a result of your father’s abusive behaviour. You have experienced periods of depression and anxiety during your adult years. In Dr Barth’s opinion, your symptoms remain sufficiently severe to warrant a diagnosis of a Major Depressive Disorder by DSM-5 criteria, at the moderate level of severity.
41In Dr Barth’s opinion, there is a genuine risk that your mental state could deteriorate in the time immediately following the final resolution of the matter.
42Your cognitive functioning is normal, you are not psychotic and there are no deficits in your ability to appreciate the wrongfulness of your behaviour. Your intelligence falls within the normal range.
43Dr Barth also observes that your poor social skills, language problems and separation from your family are likely to render you a relatively vulnerable prisoner, particularly when considering the hardened criminal elements in Dr Barth’s opinion that you are sure to encounter a custodial setting.
44Your counsel submitted that, as a result of these matters, the fifth and sixth limbs of Verdins[2] attracted weight in the sentencing exercise – that is, the existence of your condition will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health, and that there was a serious risk that imprisonment would have a significant adverse effect on your mental health, and your condition should have a bearing on the kind of sentence that was imposed, and the conditions in which it should be served.
[2]Verdins, Buckley and Vo (2007) 16 VR 269, paragraph 32
45I find, consistent with Dr Barth’s opinion, that your condition will mean that a sentence will weigh more heavily upon you than it would upon a person of normal health, and I attach mitigatory weight to this factor in the operation of those two Verdins factors.
46A linked mitigatory factor is the fact that a sentence of imprisonment that involves your detention may weigh heavily upon you for two further reasons.
47A sentence involving your immediate imprisonment will impact upon both your wife and children, whom you support emotionally and financially, and your mother descending into ill health, whom you support emotionally. Here, I interpolate that hardship to a third party as a consequence of imprisonment is not normally a mitigating circumstance. However, I consider that your inability to provide the same level of support while you are in custody will weigh upon your mind, and I do that part into account. You will also find imprisonment burdensome by reason of your lack of fluency in English.
Evaluation of nature and circumstances of the offending
48Prosecution counsel carefully detailed the legislative history and purposes of the sections of the Customs Act that you have infringed. These offence provisions were introduced as part of a package of measures to reduce the incidence of smoking in Australia. Smuggled tobacco products undermined this objective, by making cheap tobacco available in the community, and evading any government inspection, testing or quality control.
49I have already noted the facts referable to each of your offences. I accept the prosecution characterisation, in application of the authority of R v Zhang,[3] that I must take into account the following factors when considering the gravity of your offending:
(a) the role of the offender, in particular, whether the accused was a principal organiser or merely acting on the instruction of others;
(b) the sophistication of the offending;
(c) the period over which the offences were committed;
(d) the quantity of the tobacco imported, and the amount of duty evaded;
(e) whether the loss of revenue has been repaid;
(f) whether the offending involved other illegalities, such as the use of false identities;
(g) whether the accused was involved in the distribution and sale of tobacco products within Australia;
(h) the extent to which the accused gained financially from the offending.
[3](2017) 265 A Crim R 113, [37]ꟷ[38]
50I have had careful regard to these aspects of your offending. I accept the prosecution contention that the evidence that I have heard and considered which I observed in the course of your trial supports a conclusion in relation to the two charges of which you have been found guilty, that you held a senior position in the scheme which imported the cigarettes on these two occasions. Your role was that of coordinator for the two delivery addresses, which facilitated the leasing of relevant premises for the delivery of cigarettes. This included your provision of delivery addresses for the consignments at Collegium Avenue, Wheelers Hill (Charge 1) and Curlew Court (Charge 3), the arranging of the leases of those properties for the purpose of delivery of consignments, the recruitment of others to be named as tenants on those leased premises in order to avoid detection, and paying for costs associated with those leased premises. You exercised independence and responsibility, though I find that you were not the organiser of the importation scheme and were subordinate to another or others.
51I conclude that the offending in relation to your two charges was relatively sophisticated, in that each occasion involved a significant number of cigarette sticks, concealed within misdescribed items, involving multiple other persons, and the two addresses.
52Your involvement in your offences was committed over approximately a two-month period and as I have noted, there is nothing alleged against you prior, or since.
53At the time of both importations, the duty payable was 71.05 cents per cigarette stick. The offending, the subject of Charge 1, therefore evaded in excess of $550,000 in duty/excise and over $55,000 in GST which was payable on the cigarettes; and the offending referable to Charge 3 evaded over $600,000 in duty/excise and over $60,000 in GST which was payable on the cigarettes. I accept, as the prosecution does, that you did not know the exact value of revenue evaded, but I am satisfied you were aware it was a significant amount of money.
54I am prepared to infer, as a matter of commonsense, that you were involved for financial gain or the promise thereof.
55I must impose sentences that punish you and denounce your behaviour, and deter you from any likelihood of repetition, and others who may be tempted to engage in similar behaviour.
56The sentences I will impose will also allow for your rehabilitation. Having regard to your strong family support, your hard working and productive nature and good work history, and the absence of any prior offending, I am prepared to conclude that your prospects for rehabilitation are good.
57The prosecution provided me with a table of comparative cases. I have considered the details of each of those cases carefully and have had regard to those cases, noting the importance of national consistency in the application of the relevant principles (see eg, R v Pham[4]). Of course, as is well established, I consider that these sentences may serve as “yardsticks” to illustrate, but not define, the possible range of sentences.
[4](2015) 256 CLR 550, [28]-[29], [47]
58I am of course acutely aware of the parsimony principles of sentencing, confirmed in s17A of the Crimes Act 1914 (Cth). It was agreed between the parties that sentences of imprisonment ought be imposed in relation to your offending, however your counsel respectfully submitted that you could be sentenced to receive a recognizance release order, allowing for your release forthwith. I have reflected on this submission very carefully, however I am unable to accede to the latter part of that submission. I have been cautious in my nomination of commencement dates for the sentences imposed on each charge so as to have proper and careful regard for the totality principle of sentencing.
Sentence
59On charge 1, of attempting to possess goods, namely tobacco products, knowing that the goods were imported with the intent to defraud the revenue, you are convicted and sentenced to one year and nine months’ imprisonment, to commence immediately.
60On charge 3, of aid, abet, counsel or procure the commission of importing tobacco products with the intention of defrauding the revenue, you are convicted and sentenced to one year and nine months’ imprisonment, to commence three months from today’s date.
61The total effective sentence is, therefore, 2 years imprisonment, and I ordered that you are to be released after serving 12 months upon you entering into a recognisance of $2000 to be of good behaviour for three years.
62INTERPRETER: Your Honour, my lack of understanding. What do you mean by 'Recognisance order'?
63HER HONOUR: I need to explain its effect.
64INTERPRETER: Yes.
65HER HONOUR: What is referred to as a recognisance release order is an order that you be released, to be of good behaviour for a period of three years.
66INTERPRETER: Okay.
67HER HONOUR: Assuming that you are of good behaviour, you will not need to appear before me. However, if you commit another offence, you will come back before me. You may be ordered to serve the rest of the sentence and you may need to pay the $2,000 that is held in bond. But we will not ask you to pay the $2,000 unless another offence is committed. Are you willing to enter into that bond so that the second 12 months of the sentence can be served in the community?
68INTERPRETER: I just need to talk.
69HER HONOUR: Of course and Mr Papas, you may ‑ ‑ ‑
70MR PAPAS: Might my instructing solicitor approach the dock?
71HER HONOUR: In the meantime, Mr Saunders.
72MR SAUNDERS: Yes, Your Honour.
73HER HONOUR: We are having tech issues and unable to print the form. Do your instructors happen to have a form available so that we can fill out the details of the recognisance release order?
74MR SAUNDERS: There are three copies.
75HER HONOUR: I am so pleased to hear that. Do I need to fill out the details or might one of your instructors be able to fill - they are much more fluent in filling out bond orders than I am.
76MR SAUNDERS: It is being done now.
77HER HONOUR: Do you want me to check it and then we can trouble the accused to sign it?
78MR SAUNDERS: We will hand it up once the details have been entered, Your Honour.
79HER HONOUR: I still need to obtain the accused's consent.
80MR PAPAS: I might need to go up there?
81HER HONOUR: Yes, by all means, thank you.
82MR PAPAS: Yes. I have given him advice earlier, Your Honour. He understands the principles, just the way it was coming out.
83HER HONOUR: By all means.
84MR PAPAS: He agrees but of course, you need to direct ‑ ‑ ‑
85HER HONOUR: Thank you, you may be seated sir. So we have just got a couple of related issues - please be seated. One is we still have one charge left on the indictment, Mr Saunders, which I understand you intend to seek to discontinue?
86MR SAUNDERS: Yes, the Commonwealth announces that it will not proceed with a retrial on Charge 1.
87HER HONOUR: My understanding is we need a discontinuance filed, just so that we can clear the indictment.
88MR SAUNDERS: That will be done.
89HER HONOUR: So can I please adjourn that charge sine die in the expectation that the discontinuance might be filed within, for instance, the next week?
90MR SAUNDERS: Yes, Your Honour.
91HER HONOUR: Yes, thank you. So we can make an order once that has been filed. My chambers will keep an eye on that.
92MR SAUNDERS: Certainly, Your Honour.
93HER HONOUR: Next is, I will sign the recognisance release order. Is there any other business that we need to attend to in this matter?
94MR SAUNDERS: No, Your Honour.
95HER HONOUR: No, so Mr Papas and team, I will make sure that we follow through with that discontinuance just so that the indictment is finalised.
96MR PAPAS: Thank you, Your Honour. There is nothing else that we can think of, Your Honour.
97HER HONOUR: I have two decisions to hand down later today. Thank you. I am about to stand down and we will adjourn until 10.30 tomorrow morning. We need the accused to sign the second page, perhaps with the assistance of the interpreter, before he is able to leave the court. Thank you.
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