Director of Public Prosecutions v Yi
[2015] VCC 199
•26 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| IN YI |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 February 2015 | |
CASE MAY BE CITED AS: | DPP v Yi | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 199 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | ||
| of Public Prosecutions | Ms I. Gurry | |
| For the Accused | Mr A. Shears |
HIS HONOUR:
1 In Yi, you have pleaded guilty before me to three charges of importing goods into Australia in contravention of the Quarantine Act (1908) specifically s.67(3) in that you imported pork obtaining or being likely to obtain a commercial advantage over your competitors or potential competitors. The maximum penalty for this offence is ten years imprisonment or a fine of 2000 penalty units or both.
2 Charge 1 relates to an importation on 29 March 2010 of 202 kilograms of food products containing pork.
3 Charge 2 relates to an importation on 15 September 2010 of 1388 kilograms of food products containing pork.
4 Charge 3 relates to an importation on 3 December 2010 of 1000 kilograms of food products containing pork.
5 All these food products were imported by you from South Korea. The Commonwealth tendered a comprehensive and detailed prosecution opening which was tendered as an exhibit and will be retained on the file for future reference.
6 For purposes of this sentence it is sufficient for me to summarise the facts briefly. The Department of Agriculture, Fisheries and Forestry commenced a national investigation in December 2010 into the importation of illegally imported meat into Australia from South Korea. That investigation led the department officers to search the premises of ISS an import trading company. That company had a number of permits for the importation of canned meat, dairy products, amongst a number of others. It had quarantine approved premises to meet post entry quarantine requirements for a large number of products of quarantine concern, that is the receipt, storage and inspection of commodities that have temperature controlled storage requirements.
7 You were the sole director and owner of ISS and you had obtained accredited training and certification in 2006 and re-accreditation in 2009.
8 Full import declarations must be lodged for commercial imports valued in excess of $1000 with Australian Customs, and such declarations must contain a classification of the commodity description to identify the risk involved in the importation as well as its tariff.
9 The three charges relate to three separate occasions when you provided documents on behalf of ISS which wrongly identified the true nature of the import. This was done by providing such documents to the Customs broker to ISS who then electronically lodged the declaration on the Customs data base that records all consignments of imported cargo entering Australia.
10 On 29 March 2010 you provided documents showing the buyer as ISS and described the goods as ice cream, fish cakes and vegetable dumplings weighing 2700 kilograms valued at over $US5000.
11 The ingredients list stated the goods contained no meat. The consignment was cleared and released in early April 2010. In fact some of that product contained pork and this charge relates to a total of 202 kilograms.
12 On 20 September 2010 on instructions provided by ISS the import declaration lodged by the broker declared that the importation consisted of over 2000 kilograms of dumpling. In fact that shipment contained 44 different food products, many of which contained pork weighing over 1300 kilograms.
13 On 6 December 2010 ISS again provided the broker with other documents for the importation of vegetable dumplings which did not list any meat ingredients. The consignment was cleared. The imported goods were in part pork dumplings, and based on your admissions, Charge 3 relates to approximately 1000 kilograms of food product which contained pork.
14 The importation of meat or meat products is prohibited unless a permit to do so has been granted. Such product represents a significant hazard given that no requirements are met or assessments for quarantine have been carried out.
15 For pig meat Australia requires risk management measures for no less than ten diseases quarantine concerned including foot and mouth disease.
16 During the period of the charges the buyer security risk that the meat may have been infected or contaminated was not insignificant given that there was an ongoing outbreak of foot and mouth on the Korean Peninsula, including other areas such as Russia and China and other countries.
17 Both the likelihood of the virus and its ability to resist cold storage and transport was high. This is a risk which can quickly spread to cattle and sheep and goats as well as pigs.
18 The import of such an outbreak is potentially devastating for not just the meat industry but the domestic an international trade as well as the community.
19 In a record of interview which took place in early May 2011 you cooperated with authorities, provided a number of details. You supplied during your business many Korean grocery stores, Asian markets and restaurants over 100 shops throughout Australia.
20 By not declaring the product properly you knew you would facilitate its entry. You asserted that other people in New South Wales had advised you as to this but by September or October you had stopped importing after having commenced in early 2010.
21 The first matter to note is that in this case there has been a significant delay from your interview and then charges that later were laid. A brief of evidence was submitted to the Commonwealth Director of Public Prosecutions in February 2014 with charges issued in July 2014 and the committal also in late 2014.
22 As can be seen by this chronology, once the brief was submitted the process progressed speedily enough but there can be little doubt that a delay of some four years is one which must be taken into account to ameliorate the sentence. Such delay was not occasioned by you but it remains significant and there was said to have been inadvertent delay consequent upon the Commonwealth Office of the Public Prosecutor choosing to prosecute some of the matters in this operation in other jurisdictions first.
23 You pleaded guilty in November 2014 at the second committal mention. I am prepared to accept that the earliest opportunity was taken up to resolve all the issues between the commonwealth and you. You will receive a discount on your sentence accordingly.
24 It is however noted that the charges are in relation to s.67(3) and that sub-section in fact presents an aggravating circumstance to the offence because it essentially frames the charges in the context not only of the biosecurity risk but also in relation to commercial risk and advantage gained which is clearly the situation here.
25 Although the identification of other parties was of low value, no undertaking of assistance was offered. Your cooperation and full admissions then coupled with your plea in my view demonstrate a willingness to facilitate the course of justice.
26 You do not have a prior criminal history and you have no pending matters before the court.
27 You are 42 years of age. You have two children from your previous marriage, now aged 14 and 11. Your wife unexpectedly and permanently removed herself and the children to Korea in October 2013 under the guise of a holiday and you have not seen them since although you have had some contact.
28 You have lived with your brother and receive a NewStart Allowance. Your business failed. You were not declared bankrupt contrary to what was said on your plea but that term adequately describes your financial situation. You have combined tax, suppliers, rental arrears and quarantine debts which exceed $100,000.
29 You have no significant assets nor savings and the Allowance is your only current income.
30 These matters I take into account as extracurial punishment. These matters have naturally enough given rise to a level of depression and anxiety for which you have been medicated and are receiving psychological treatment.
31 As a child you moved countries frequently with your family and your parents at one point remained in Iran where you were educated to some extent and then you returned to finish your education in Korea until12 years of age.
32 Your father died suddenly when you were young in 1983 and your mother returned to Korea although she is of Vietnamese extraction. In 1985 you came to Australia aged just 17 years of age. You completed your schooling at Camberwell High.
33 You married in 1996 and the marriage was dissolved in 2013.
34 Your stepfather operated the wholesale food importation business and you worked in that company for ten years before establishing your own company in 2005. You expanded gradually from dried and frozen goods and obtained quarantine accreditation.
35 A slowing market and increased competition meant that sales dropped significantly and you incurred losses in the years 2012 and 2013. Eventually ISS shut down in 2014.
36 I accept that your plea is an indication of your remorse and that you ceased this conduct prior to the conclusion of the investigation. It is unlikely that health or environmental consequences flowed from these importations in 2010 however this is more a matter of luck than anything else. Despite their discrete short duration and limited quantum of meat product and associated profits I should counterbalance these factors with the fact that you well knew and willingly undertook the risk despite your training and accreditation.
37 Clearly profit at that point was your motive and general deterrence must therefore be a major consideration with this sentence.
38 I accept you have not offended in any way so that I can have a level of comfort that you are well on the way to rehabilitation and it is in that context that the delay becomes important.
39 I accept that your prospects for rehabilitation are good.
40 I also accept that a term of imprisonment to be served immediately could have an adverse effect on your health, particularly those matters like the gastrointestinal bleeding which may be related to your anxiety and depression consequent on your legal predicament.
41 This engages to an extent some of the limbs in Verdin’s and go to moderate the sentence, place it in a category where its immediate service can be moderated.
42 In terms of remorse and regret I have read references written on your behalf which speak of it and your good character. I accept that contact with the criminal justice system has provided a deterrent effect to you specifically and a salutary effect.
43 Though it was submitted that a financial penalty would suffice, in my view the nature of the offence and its inherent dishonesty accompanied by risk and greed and the continuing nature of this course of conduct over four months call for stern punishment.
44 I consider that imprisonment is the only option, however the material and the circumstances of the offending and your personal circumstances have persuaded me to suspend this sentence.
45 I received the medical report from Dr Singh which I have taken into account with its detailed account of your background, as well as mental and physical conditions which will require ongoing support which includes psychotropic medication and psychotherapy.
46 A report from Dr Agbaraky outlined your medical conditions, particularly your anxiety, as well as your deteriorating mental health. I also received references which spoke highly of you as a trustworthy decent hard-working person. Your brother in particular spoke of your abilities and the good character which you have otherwise displayed.
47 I was referred to some recent authority in these types of cases and I have read them carefully, as well as the submissions by counsel upon your plea.
48 Would you please stand. On each charge you are sentenced to 12 months imprisonment. I order that two months on Charges 2 and 3 be cumulative on the base charge, Charge 1, making a total effective sentence of 16 months. You will be immediately released upon entering into a recognisance for $2000 to be of good behaviour for three years. If you commit an offence which breaches that signed promise in the next three years there are various consequences you could be ordered to undergo, and you could be asked and ordered to undertake the entire or part of that period of imprisonment.
49 But for your plea I would have sentenced you to a total effective sentence of 24 months with a non-parole period of 12 months.
50 Are there other ancillary orders that are required, Madam Prosecutor?
51 MS GURRY: No, there are not, Your Honour, to my knowledge. A small correction I guess is that you cannot give a non-parole period for a 24 month sentence.
52 HIS HONOUR: Yes. I think that that is right.
53 MS GURRY: Thank you.
54 HIS HONOUR: I think that there is a recognisance to be signed. If you would be kind enough to fill that out, Madam Prosecutor, and when it is ready I will ask Mr Shears to take it to the back of the court.
55 MR SHEARS: If Your Honour pleases.
56 MS GURRY: Does Your Honour wish to see it before Mr Yi signs it?
57 HIS HONOUR: No, if you are happy that it is correct then I am - - -
58 MS GURRY: Then you can sign it after him.
59 HIS HONOUR: Yes.
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