Director of Public Prosecutions v Young

[2015] VCC 1293

IN THE COUNTY COURT OF VICTORIA Revised
NotRestricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00647

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID YOUNG

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2015] VCC 1293

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr Chadwick QC
For the Director of Public Prosecutions	Mr P. J. Doyle

1You, David Young, have been convicted after trial of two charges being Charges 2 and 3 on the indictment and acquitted of the first charge, Charge 1.  The first charge of which you were convicted charged that you possessed goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue, contrary to the relevant section of the Customs Act.  You were also convicted on Charge 3 on that indictment of attempting to possess goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue contrary to the relevant section of the Criminal Code.

2The summary charge was also before me pursuant to the relevant provisions of the Criminal Procedure Act.  You were charged with and pleaded guilty to an offence contrary to the relevant provisions of the Criminal Code (Cth) namely recklessly making a false statement in connection with an application.  The maximum penalty is six months' imprisonment. 

3As to the circumstances of that offending, I was told in a document which is at marker 4 of the folder of plea materials which is Exhibit 3 before me that on 2 May 2014 you made an application on behalf of your company known as CFS Container Forwarding Services.  That was an application to extend your company's classification to obtain approval for the export of dairy produce.  As part of that application you filled in the relevant form and ticked "No" contained in that form, including a question which asked whether the person completing the form or any of the persons listed in Section C of the application to their knowledge had any charges outstanding against them. Of course, that declaration was false because at the time you were awaiting trial in the County Court for various offences, the relevant history of which is set out before me in paragraphs 8 to 13 of the document which is contained at Marker 4 of Exhibit 3.  Your explanation for filling in the form incorrectly is disclosed in that document and was further explained to me by your counsel, Mr Chadwick QC, who said that this was nothing more than a demonstration of carelessness on your part.

4The matters giving rise to Charges 2 and 3 on the indictment were of course fully explored at trial.  A summary of those facts is before me as Exhibit 1, a document entitled "Brief Summary of Facts" prepared by the prosecutor, Mr Doyle.  Charge 2 concerned a container which arrived in Melbourne on 4 May 2013.  It was consigned to a company and shipping documents said the container contained instant noodles.  On 4 and 6 May 2013 you met with one Abdullah and had discussions about the status of the container.  You made arrangements for the container to be picked up by a trucking company and delivered to the yard at your premises known as CFS.  This was done in the early morning of 7 May 2013.  You telephoned Abdullah at 5.29 am and advised that the container appeared to be full and that you would check once it came off the truck.  After Abdullah updated other syndicate members in relation to the container, you telephoned Abdullah and advised him that it was "OK" but that you "Can't unpack it here because of the labelling on it cos it's got names written all over the front of it."  Abdullah asked you "What do you mean names?" and you replied: "The names of the stuff."  Abdullah then confirms with you that the container is full.  After this conversation Abdullah advised Haddara, his co-offender, that the container was full and that there was then an urgent message for Nassar to collect the container from you.  That container was then collected from your premises at CFS and you loaned a truck to Abdullah for the purposes of facilitating the unloading of the container.  While that container was being unloaded, Nassar saw the word "Cigarettes" was written on boxes contained in it. 

5Telephone intercept material establishes that the container contained 900 boxes of cigarettes.  It is likely that the 900 boxes of cigarettes contained some 9 million cigarettes but no finding as to a precise figure can be made.  The duty payable on 9 million cigarettes was $3,190,230.  Again, whilst no precise quantum of duty evaded can be arrived at it is sufficient in the circumstances to note that the container was evidently full of cigarettes and the duty evaded would have been substantial, something in the order of $3 million.  With respect to the other charge of which you were convicted by the jury, that concerned a container which was consigned to a company called Beta Imports and Exports.  Once again, that company did not arrange the shipment.  The container was said to contain okra.  In fact it contained nearly 23,000 kilograms of frozen tobacco and that container arrived on 16 June 2013.  On 17 June you had a number of telephone conversations with Mr Abdullah concerning the status of that container.  The following day you continued to check on the status of the container.  Customs examined the container and seized the tobacco on 18 June 2013 and found that the container contained 22,969 kilograms of frozen tobacco in 823 boxes. 

6You met with Abdullah the following day at 3 pm.  Arrangements for the collection of the container were then made by you instructing Mr Sam Ngyer of ARL Trucking to organise a timeslot for the collection of the container.  Ngyer booked a slot for the collection of the container and, at about 8 pm in accordance with your request, asked the truck driver to call you once the truck driver had picked up the container.  Once the truck driver picked up the container he did contact you and agreed to meet at the ARL premises.  The driver met with you at the ARL premises where he dropped off the container.  After checking the seal on the container you telephoned Abdullah and told him "It's different, it doesn’t look heavy to me."  About 15 minutes later you told Abdullah again over the phone "Nothing."  Abdullah then asked you "Empty?" and you replied "Yeah." 

7On 20 June 2013 you were arrested and a search warrant was executed at Olympia Street, Tottenham.  A much more detailed outline of the facts was provided to the jury in the form of a chronology which was relied upon by the prosecution and which I found very helpful. 

8No victim impact statement has been tendered in the matter.  I have been told  something of your personal history and your circumstances.  You were born on 20 July 1948 and you are 67 years of age.  You have no prior convictions and I sentence you therefore as a person of previous good character.  With respect to your personal circumstances, these were helpfully set out in a document which was presented to the court and marked as Exhibit A.  You are a widower, your wife having died in 1985 and you have no children.  You were born in Geelong and your father died when you were three.  Your mother remarried when you were five and you were educated at the Bannockburn Primary School.  You then attended Geelong Junior Technical School and you left school in Year 10.  You then took up employment at a meatworks in North Geelong.  You continued working at that meatworks until you were 22 years of age and you left at that time because of industrial unrest in the meat industry.  You then moved into the building industry as a builder's labourer and from the ages of 22 to 28 you were employed as a builder's labourer.  You met your wife in the early 70s.  She was a kindergarten teacher and she had two children from a previous relationship.  You and she bought a house in Newtown. 

9In 1979 you joined Costas as a delivery driver working your way up from that role to the role of managing the wholesale division and you worked for Costas for 10 years from 1979 to 1989.  Sadly, your wife suffered from depression which was treated but not successfully and in 1985 she took her own life leaving you with the care of her youngest daughter whom you raised until she became an adult.  As a consequence of Costas moving to Melbourne you commuted each day from Geelong.  Your next partner you met at grief counselling and her name is Ms Jill Penning.  You lived with her after the daughter you supported became independent and you helped Ms Penning's three children and contributed financially to them and in particular their schooling at Geelong College and then university as well as Sacred Heart primary teaching and Geelong Grammar.  That included a son with an acquired brain injury.

10In 1989 you left Costas and went into business for yourself, beginning with a cold storage warehouse in Footscray.  The business was successful and as a consequence you relocated on four occasions, each time to larger premises as your business expanded.  In 1994 you and Ms Penning separated and you moved to Melbourne.

11By the end of the 1990s you had 15 staff working for you, three trucks and you had installed a number of cool stores.  Apparently you had also invested a significant sum of money in the hundreds of thousands of dollars in a farm in China but that was unsuccessful and you lost your investment.  In 2000 you were bought out by Patrick's and then worked for them for two years before in 2002 you set up your own business again in Footscray until such time as regional rail compulsorily acquired your property in 2010.  With regard to that compulsory acquisition, indeed with respect to evidence of your financial circumstances generally, I heard evidence from your accountant, Mr Trevor Wills.  He gave evidence on your plea about your financial situation and in particular the compulsory acquisition of that site, noting that it took three and a half years before the agreed compensation of $1.5 million was finally paid in December 2013.  He described the current nature of your business, noting the important role you played in it.  Also, by means of demonstrating your personal financial circumstances, the company tax returns of CFS for the financial years ending 12, 13 and 14 were tendered which demonstrated the profitability of the organisation as well as Exhibit D being financial statements of CFS and Exhibit E, your own tax returns. 

12Your accountant said that your financial position was that all of your assets were tied up in the business and the estimate of the fair value of the business at the time was about $600,000.  Your counsel, Mr Chadwick QC, said that you had instructed him, you were prepared to pay an amount of $100,000 over a period of 12 months.  As to this matter and whether that offer should be described, for example, as going to remorse and being a significant demonstration of your remorse or whether it should be regarded as simply your own estimation of your ability to pay a financial penalty, I will take the evidence into account in your favour as demonstrating remorse and in a significant way, given the amount involved.  I will also take it into account as an analysis of your financial situation with respect to the appropriateness or otherwise of a fine. 

13In 2005 you met Ong, an Australian citizen of Thai heritage, and she works as a domestic in an aged care home.  In 2011 you became partners in ARL and that has now been bought out by Seeway.  It is said that you are a very generous employer who pays the staff very well and you are very loyal to them.  You also support orphanages in Thailand and Vietnam and indeed, local charities.

14In the circumstances I do take into account that you have lived 67 years without attracting any untoward attention from the police and that your general reputation within the community appears to have been good.  Certainly the character evidence called by your counsel in support of you at the trial spoke of your loyalty and abilities as an employer over an extended period of time.  I am on balance satisfied the chances of your rehabilitation are reasonably good, given your present age and circumstances, bearing in mind of course the summary charge to which you pleaded guilty occurred in 2014 in about May. 

15With regard to your role, the person most closely related to you in terms of what you did and your criminality was in my view the driver, Mr Nassar, who gave evidence in the trial against you.  There are demonstrable differences between what you and he did, of course, and most importantly he pleaded guilty and gave evidence to assist in your prosecution before me.  These were very significant matters in my view.  I also bear in mind the factual differences between your roles for the purpose of assessing Mr Nassar's role I had the materials provided to me by the prosecution which are available in the folder of materials.  In that regard I have both the sentencing remarks and transcript of the plea hearing with regard to Nassar which was before Judge Dean of this court as well as the other relevant materials in that folder.  As Mr Chadwick said on your behalf, in the 67 years of your life your period of criminality has been confined to a relatively short period and of course the consequences of your offending are such that you will no longer be able to work as a Customs agent and presumably you will be unable to work as the director of a company for the foreseeable future.  As a result of the delay in bringing the charges before the court you have no doubt been anxious knowing that in the event the jury's findings were of guilt that you faced the inevitability of jail.  Accordingly, you are entitled to the benefit of that which accrues to you in the circumstances of that delay as directed by the authorities.

16Of course, as well as those matters personal to you to which I have referred including the question of rehabilitation, I must take into account such matters as deterrence and of course general deterrence is always of considerable importance in a case such as this, involving as it does a very significant fraud on the revenue.  In that regard I was directed to the Court of Appeal's decision in DPP v Carter [1998] 1 VR 601 and particularly to the judgements of Ormiston JA at p.610.9 and Phillips JA at p.611 at about line 15 where both of their Honours referred to the case of R v Withnail [1993] FCR 512 where Higgins J said in a judgment agreed with by Justices Davies and Drummond at p.519: "At least so far as the courts are concerned, serious frauds on the revenue will result in custodial sentences.  In the absence of substantial mitigating circumstances, that sentence will include a period actually to be served."

17I was also referred to the remarks of the President of the Court of Appeal where His Honour said at p.606: "Ritual incantation such as serious frauds on the revenue will result in custodial sentences", referring to Withnail, "Are of little practical value as Pinkus JA pointed out in Wright's case at p.165.  This is because what is serious must inevitably depend upon the findings of the sentencing judge in the case under consideration."

18I do find in the circumstances of your offending as set out in the summary of facts which is Exhibit 1 and also as set out in the prosecution's chronology of facts which was before me and the jury and to which Mr Doyle took the jury in some considerable detail that your offending is rightly described as serious given the sums involved and your role.  You played a very necessary and in my view important role in facilitating the arrival of the tobacco in whatever form and its passage through customs.  Your knowledge and your company's position were critical matters upon which people relied in ensuring the safe passage of the tobacco goods through customs to their end users. 

19I accept the submission made by Mr Doyle that in the circumstances it appears the only reason you did that was for financial gain as no other explanation has been proffered and indeed your financial situation at the time, as described by Mr Chadwick, was difficult to say the least.  I have no view as to what you did receive by way of financial inducement to commit these crimes.  I was also helpfully referred to the authority of Nguyen v The Queen, a decision of the President and Redlich JA [2011] VSCA 32 and their Honours comments as set out with respect to the general principles applicable to sentencing in that case for a drug importation offence. It seems to me that, with the greatest of respect, what their Honours had to say is of relevance to this matter, particularly proposition No. 6 which, it seems to me, has applicability in your case. I do not believe that specific deterrence is of particular importance in the case given your age and circumstances and further, in considering the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, I find this to be modest in view of your age and the circumstances of your life at present.

20These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences with respect to the two charges on the indictment and a fine with respect to the summary matter. 

21With respect to Charge 2 on the indictment you are convicted and sentenced to be imprisoned for 12 months and I order that that sentence commence this day, 11 September 2015. 

22On Charge 3 on the indictment you are convicted and sentenced to be imprisoned for 18 months and I order that that sentence commence on 11 March 2016. 

23With respect to the summary offence you are convicted and fined a sum of $10,000. 

24MR DOYLE: Your Honour, sorry I didn’t stand up in time. Your Honour's just announced a fine, I believe it's in excess of the maximum. The questions governed by s.4(b) of the Crimes Act which provides that where the quantum of a pecuniary penalty is not specified the maximum is to be calculated by multiplying by 5 the maximum term of imprisonment expressed in months.  So in this case 6 months' imprisonment multiplied by 5 is 30 and 30 multiplied by the current value of a pecuniary penalty unit, which I'm instructed is $170,000, is $5100. 

25HIS HONOUR:  Thank you.  Mr Chadwick, do you agree with that?

26MR CHADWICK:  Yes I do.  It's $5100 maximum.

27HIS HONOUR:  Thank you.  In the circumstances the fine will be $2500.  And who is that payable to, Mr Doyle?  Apparently there's a space on a form somewhere.  In any event, perhaps you can tell my instructor about that in due course.  The time that's already spent in custody is?

28MR CHADWICK:  The period - that is, from the - date he went in which was the 2nd to today, so not including today that would be 8 days on my calculation.

29HIS HONOUR:  Very well, I'll make a direct declaration that Mr Young has spent 8 days in pre-sentence detention in respect of this matter and no others.  That makes a total effective sentence on my reckoning of 24 months' imprisonment which commences this day, 11 September 2015, and I order Mr Young's release after serving 15 months' imprisonment conditional upon Mr Young entering into a recognisance to be of good behaviour for a period of two years.  Do I need to nominate a sum in respect of that, Mr Doyle?

30MR DOYLE:  Yes I think there is.

31HIS HONOUR:  I'll nominate a sum of $100 with respect to that and in respect of the reconnaissance.  All right, I think I am obliged to explain that to Mr Young, am I not?

32MR DOYLE:  The recognisance order, Your Honour, yes.

33HIS HONOUR:  Yes.  Mr Young, I'm sure that Mr Chadwick will also explain it but what it effectively means is there's a total sentence of 24 months but you will be released after serving 15 months on a reconnaissance which means you promise to be of good behaviour then for the balance of the sentence and of course if you breach that promise you would come back before me.

(Audio malfunction.)

(Short adjournment.)

34HIS HONOUR:  Yes, is that recognisance prepared?  Yes, thank you.  All right, I think that completes the matter, gentlemen.

35MR CHADWICK:  Yes, the order has been signed by Mr Young and other than the last part he's received a copy of the order, he's been taken through it and explained it and all of those conditions have been complied with.

36HIS HONOUR:  Thank you very much, Mr Chadwick, and I'd like to thank you both.  I didn’t make an order about time to pay the fine but probably unnecessary ‑ ‑ ‑

37MR CHADWICK:  Yes, would Your Honour ‑ ‑ ‑

38HIS HONOUR:  A stay of a month?

39MR CHADWICK:  Would three months ‑ ‑ ‑ ?

40HIS HONOUR:  Three months, yes.  All right, anything further?

41MR DOYLE:  Your Honour, on the question of $100,000 that Mr Young offered to repay the Commonwealth, I believe Your Honour referred to that in your sentence remarks.  I don't know whether Your Honour intended to make a reparation order.

42HIS HONOUR:  No I didn’t.

43MR DOYLE:  Just wanted to make sure Your Honour ‑ ‑ ‑

44HIS HONOUR:  Yes, indeed.  No, I thought in all the circumstances it was inappropriate.  Yes, anything further, gentlemen?

45COUNSEL:  No, Your Honour.

46HIS HONOUR:  All right, thank you again for your assistance in the trial and on the plea.  Yes, very well.

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