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Goulding v Penello

Goulding v Penello

Case [1999] WASC 192 19 October 1999

Admissibility of Evidence

Criminal Law

Customs Law

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GOULDING -v- PENELLO [1999] WASC 192

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 192
Case No:	CIV:2098/1996	Heard:	24 AUGUST 1999
Coram:	HEENAN J	Delivered:	19/10/99
No of pages:	13	Judgment Part:	1 of 1
Result:	Imposition of penalties totalling $333,886.94
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Parties:	MICHAEL LESLIE GOULDING, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS LORENZO PENELLO REDPAWN PTY LTD
Catchwords:	Sentencing principles Customs offences Multiple charges Mandatory minimum penalties Smuggling and evasion charges Offences leading by steps to ultimate offence Substantially contemporaneous and connected
Legislation:	Customs Act 1901 (Cth) s 233(1)(a), s 234(1)(a), s 234(1)(b), s 234(1)(d) Crimes Act 1914 (Cth) s 19B, s 4K
Case References:	Chipp (Minister for Customs) v Campbell Beaumont Trading Pty Ltd, 22 December 1969 Comptroller-General of Customs v Kingswood Distillery Pty Limited & Ors, unreported; SCt of NSW; 5 December 1997 Comptroller-General of Customs v Wong and Rizoli Pty Ltd (1998) 103 A Crim R 491 Hayes v Weller (No 2) (1988) 50 SASR 182; 37 A Crim R 349 L Vogel & Son Pty Ltd v Anderson (Minister for Customs) (1967) 120 CLR 157 R v Bibaoui [1997] 2 VR 600 R v Connelly [1964] AC 1254 R v Jackson (1998) 72 SASR 490 Scott v Geoghegan & Sons Pty Ltd (1969) 43 ALJR 243 Shaw v The Queen (1989) 39 A Crim R 343 Trade Practices Commission v Allied Mills Industries Pty Ltd & Ors (No 4) [1981] ATPR 40-241 Zarb v Kennedy (1968) 121 CLR 283 Attorney General v Abrahams (1928) 1 ALJ 388 Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 140 ALR 681 Comptroller-General of Customs v Jayakody, unreported; SCt of Vic; 9 November 1993 Comptroller-General of Customs v Jayakody, unreported; SCt of Vic; 13 December 1993 Comptroller-General of Customs v Kingswood Distillery Pty Limited (1996) 135 FLR 411 Daly v Furjanic (1992) 106 FLR 168 Evans v Button (1988) 92 FLR 203 Gallagher v Cendak [1988] VR 731 Hayes v Weller (1988) 50 SASR 182 Kelton v Uren (1981) 27 SASR 92 Lanham v Brake (1983) 34 SASR 578 Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128 Minister of State for Customs and Excise v Aunger Accessories Pty Ltd (1969) 16 FLR 94 Murphy, Minister of State for Customs and Excise v HF Trading Co Pty Ltd (1973) 47 ALJR 198 O'Brien v MR Norton-Smith Pty Ltd (1995) 31 ATR 128 O'Sullivan v Wilkinson [1952] SASR 213 Re Stubbs (1947) 47 SR (NSW) 329 Stephens v Robert Reid & Co Ltd (1902) 28 VLR 82 Verran v Roberts [1938] SASR 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GOULDING -v- PENELLO [1999] WASC 192 CORAM : HEENAN J HEARD : 24 AUGUST 1999 DELIVERED : 19 OCTOBER 1999 FILE NO/S : CIV 2098 of 1996 BETWEEN : MICHAEL LESLIE GOULDING, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Plaintiff

AND

LORENZO PENELLO

First Defendant

REDPAWN PTY LTD

Second Defendant

Catchwords:

Sentencing principles - Customs offences -…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goulding v Penello

Details

AGLC: Goulding v Penello [1999] WASC 192
Case: [1999] WASC 192
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard a case brought by the delegate of the Chief Executive Officer of Customs against Lorenzo Penello and Redpawn Pty Ltd for breaches of the Customs Act 1901. The case involved the importation of cycling shoes from France on ten separate occasions between March 1994 and March 1995. The shoes were imported without cleats, but Penello claimed they were exempt from duty under a tariff concession order for shoes fitted with cleats. Penello obtained refunds for the first four shipments and avoided duty for the remaining six shipments by providing samples of shoes with cleats, which were not the same as those imported. The charges against Penello included smuggling, evading duty, obtaining non-payable refunds, and making false or misleading statements. The central legal issues were whether Penello should be convicted of evading duty, whether the court should apply certain sections of the Crimes Act 1914 in relation to the penalties, and the appropriate penalties to be imposed considering the multiple charges. The court held that Penello should be convicted of evading duty, that the sections of the Crimes Act were not applicable, and that the appropriate penalties should be calculated based on the minimum penalties specified in the Customs Act. The court imposed penalties totalling $333,886.94, plus interest on the unpaid duty.

Orders