Nguyen v Comptroller-General of Customs
[2018] WASCA 170
•2 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- COMPTROLLER-GENERAL OF CUSTOMS [2018] WASCA 170
CORAM: MAZZA JA
MITCHELL JA
HALL J
HEARD: 7 SEPTEMBER 2018
DELIVERED : 2 OCTOBER 2018
FILE NO/S: CACR 255 of 2017
BETWEEN: HOANG NAM NGUYEN
Appellant
AND
COMPTROLLER-GENERAL OF CUSTOMS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: BANKS-SMITH J
Citation: NGUYEN -v- COMPTROLLER-GENERAL OF CUSTOMS [2017] WASC 341
File Number : SJA 1075 of 2016
Catchwords:
Criminal law - Sentencing - Importing a prohibited import - Ice pipes - Whether fine imposed was manifestly excessive
Legislation:
Customs Act 1901 (Cth), s 50, s 51, s 233
Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4I
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Mr A C Willinge |
Solicitors:
| Appellant | : | Mark Andrews Legal Pty Ltd |
| Respondent | : | Australian Government Solicitor |
Case(s) referred to in decision(s):
Gill v Chief Executive Office of Customs [2009] WASC 222
Salkilld v The State of Western Australia [2017] WASCA 168
JUDGMENT OF THE COURT:
Summary
On 8 September 2016, the appellant was convicted in the Magistrates Court of three counts of importing prohibited imports, namely 'ice pipes'. The ice pipes were imported in three consignments on 2 May 2014 (1000 pipes), 2 July 2014 (500 pipes) and 9 July 2014 (501 pipes).
The importation of ice pipes without permission is prohibited by reg 4I of the Customs (Prohibited Imports) Regulations 1956 (Cth). An 'ice pipe' is defined by reg 4I(1) to mean:
a device that is capable of being used for administering methylamphetamine, or any other drug mentioned in Schedule 4, by the drawing or inhaling of smoke or fumes resulting from heating the drug, in the device, in a crystal, powder, oil or base form.
As such, ice pipes were prohibited imports under s 50 and s 51 of the Customs Act 1901 (Cth). It is common ground that the purpose of this proscription was to prohibit an item which had no legitimate use, the sale of which undermines efforts to reduce the abuse of illicit drugs such as methylamphetamine.[1]
[1] Appeal ts 11-12, Respondent's submissions, pars 49 and 50.
Importing any prohibited imports is an offence of strict liability against s 233 of the Customs Act. The maximum penalty for the offence, where the court cannot determine the value of the goods, was $170,000 with a jurisdictional limit for prosecutions commenced in the Magistrates Court of $34,000.
On 19 September 2016, the Deputy Chief Magistrate imposed a global fine of $60,000 on the appellant in respect of all three charges, and ordered that he pay the respondent's costs in the amount of $36,500.
The appellant appealed against the sentence and costs order to the General Division of this court, on the ground that both the fine and costs were manifestly excessive. The primary judge granted leave to appeal but dismissed that appeal on 24 November 2017, for written reasons which her Honour published.[2]
[2] Nguyen v Comptroller-General of Customs [2017] WASC 341 (Primary Decision).
The appellant now appeals to this court against the dismissal of the appeal to the General Division so far as it concerned the fine imposed. The sole ground of the appeal to this court is, in effect, that the primary judge erred in law in failing to find that the fine of $60,000 was manifestly excessive. For the reasons which follow, that appeal must be dismissed.
Circumstances of offending
The Deputy Chief Magistrate made the following findings as to the circumstances of the appellant's offending, which are not challenged in this appeal.[3]
[3] Sentencing ts 19/9/16, pages 4-8.
On 2 May 2014, a parcel from India addressed to the appellant at his business address arrived in Australia and was cleared for delivery to the appellant. The consignment contained 1000 ice pipes. A label on the parcel indicated that it contained 'borosilicate glass pipes 14cm' valued at $3,195.27.
On 2 July 2014, two parcels from China addressed to the appellant at his business address were intercepted and opened by customs officers as they came into Perth. Each parcel contained 250 individually wrapped ice pipes. A label on the outside of the parcels described the contents as 'glass container samples' valued at $40.
On 7 July 2014, the appellant contacted Customs officers by telephone and email in relation to the consignment which had been stopped on 2 July 2014. He indicated that the pipes were for tobacco, and were to be sold or used as candle holders or kerosene lamps.
On 9 July 2014, two parcels from China addressed to the appellant at his business address were intercepted and opened by customs officers as they came into Perth. One parcel contained 250 individually wrapped ice pipes, and the other contained 251 individually wrapped ice pipes. A label on the outside of the parcels described the contents as 'glass container samples' valued at $20.
On 15 July 2014, the appellant was advised by Customs that the stopped pipes were ice pipes which he had no permission to import, and were prohibited imports.
On 24 July 2014, investigators executed a search warrant at the appellant's retail shop in Highgate, which was called 'Cloud 9'. A number of damaged ice pipes were located at the premises. In addition, 151 ice pipes of various sizes and colours were on display for sale in the shop, at prices varying between $60 and $120 each. At this time the appellant told the investigators that the pipes were not ice pipes but were used for tobacco products.
A search of the appellant's residence located 6 ice pipes, as well as a drawing of an ice pipe with dimensions. The appellant provided passwords to his computers, and emails between the appellant and the suppliers of his ice pipes were located, which indicated that the pipes cost 73c each to purchase. The emails and the appellant's behaviour indicated that he intended to try and avoid detection by Customs by trying to disguise the import of the pipes as something else, and avoid knowledge being attributed to him as to the normal and usual use of the pipes.
The ice pipes which the appellant imported were not ornamental in any way. The ice pipes were prevalent in the domestic market at the date of the offence and the date of sentencing. The ice pipes were part of the use of illicit drugs which was serious and prevalent in the community. The use of 'ice' (ie methylamphetamine in crystalline form) was to the detriment of a significant portion of the community, and the consequences of its use regularly came before the courts.
The appellant did not have permission to import the ice pipes and permission was unlikely to be given. There was no use for the pipes other than as ice pipes, and there was a considerable commercial advantage in importing them.
Personal circumstances
The appellant was 33 years old at the time of the offending. He had no relevant prior criminal record. The appellant trained and worked as a pharmacist and businessman. He was married with three young children. He supplied a number of character references attesting to his good character.
Deputy Chief Magistrate's approach
The Deputy Chief Magistrate identified a number of aggravating features of the offending. The appellant was engaged in a commercial enterprise involving multiple importations. The appellant undertook planning and attempted to disguise the packages and avoid detection by Customs. Her Honour observed that it would be:[4]
[N]aive to the extreme to suggest, in my view, that a pharmacist that is trained would be unaware of the trends in the community as to the use of ice, how it used and the prevalence of its use. … it is my view that a person as a pharmacist practising in that area would be well aware of trends that are developing in the community with the use of illicit drugs.
[4] Sentencing ts 19/9/16, page 8.
Implicit in this comment is a finding that the appellant was well aware that the pipes he was selling were used for the purpose of consuming methylamphetamine.
Her Honour said:[5]
There does, in my view, need to be a deterrent in relation to both specific and general deterrence. The commerciality of this requires specific deterrence and general deterrence because of the prevalence of the drug itself and the difficulty in intercepting parcels and detecting these sorts of imports and the profits that can be made. There's obviously a requirement that the penalty be significant, taking into account the means of the person to pay and other relevant factors as to their record and background.
[5] Sentencing ts 19/9/16, page 8.
The Deputy Chief Magistrate took account of the appellant's pleas of guilty, but recognised that there could be only a limited discount given the late timing of the pleas.[6]
[6] Sentencing ts 19/9/16, page 8.
Her Honour then dealt with the appellant's application for an order under s 19B of the Crimes Act 1914 (Cth), which would dismiss the charge or conditionally discharge the appellant without proceeding to a conviction. In the course of explaining her view that such an order was not appropriate, the Deputy Chief Magistrate observed:[7]
This is a serious offence. There is a significant quantity of pipes. It was, in my view, a commercial decision on his part. It's a strict liability provision. In effect, there was no defence once the order had been placed. He couldn't get permission for this; they're prohibited. And whilst it was said that he was seeking legal advice, certainly that did take a considerable period of time, but that's not something that should be sheeted home to Mr Nguyen; he is entitled to seek advice from professionals in relation to these matters.
[7] Sentencing ts 19/9/16, page 9.
After indicating that she would not speculate as to the effect of convictions on the appellant's registration as a pharmacist, her Honour observed:[8]
In relation to the 19B order, as I've indicated, it is not my view that it should be made here, taking into account the nature and circumstances of the offence, the plea of guilty and his general antecedents. He does come to the court with a number of references that were handed up. Certainly, they indicate that he is a person who has supported his family, and they all speak highly of him, but this is, in my view, a deliberate act here. That's reflected by the drawing of the diagram and dimensions of the pipes, the orders being made, the emails and, in my view, the efforts to conceal the items that were within the parcels that were being ordered.
[8] Sentencing ts 19/9/16, page 9.
The Deputy Chief Magistrate concluded that a global fine should be imposed, bearing in mind that the similar nature of the offences and the period of time over which they were committed.[9] After dealing with the question of costs, her Honour imposed a global fine of $60,000.
[9] Sentencing ts 19/9/16, page 9.
Appeal to the primary court
The primary judge rejected the appellant's argument that the global fine of $60,000 was manifestly excessive. The appellant accepts that the primary judge correctly identified the principles to be applied in deciding whether the sentence was manifestly excessive.[10] However, the appellant contends that when the primary judge came to apply those principles she decided to dismiss the appeal on the basis that the Deputy Chief Magistrate had not made any express errors.[11] The respondent denies that the primary judge determined the appeal to the primary court in that manner.[12]
[10] Appellant's Submissions, par 13.
[11] Appellant's Submissions, par 14 - 16.
[12] Respondent's Submissions, par 13 - 23.
It is unnecessary for this court to resolve the debate about how the primary judge's reasons should be construed. The appellant accepts that, even if this court finds the primary judge erred in her approach to the question, it is still necessary for the appellant to convince this court that the fine is manifestly excessive before it would allow the appeal.[13] Further, if this court concluded that the sentence was manifestly excessive, then it would follow that it would regard the primary judge to have erred in failing to so hold. That is, a conclusion by this court that the fine was manifestly excessive is both a necessary condition and sufficient reason for allowing the appeal. The appeal to this court is appropriately resolved by focusing on that critical issue. In any event, we are not satisfied that, when the primary judge's reasons are read as a whole, her Honour failed to properly apply the relevant principles.
[13] Appellant's Submissions, par 17.
We also note that the appellant does not complain about the refusal to make an order under s 19B of the Crimes Act, or the decision to impose a global fine. Rather, the appellant's only complaint concerns the amount of the fine which the Deputy Chief Magistrate decided to impose.[14]
[14] Appeal ts 5.
General Principles
The appellant contends that the amount of the $60,000 fine was manifestly excessive. Because the fine was imposed as a total effective sentence for three charges, the first limb of the totality principle is also relevant.
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle, are well established:[15]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
[15] The following statement of the general principles is taken from the judgment of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48].
Disposition of appeal
As noted above, the maximum penalty for an offence of this nature, where the court cannot determine the value of the goods, was $170,000 with a jurisdictional limit for prosecutions commenced in the Magistrates Court of $34,000. Where the court can determine the value of the goods the maximum penalty was three times the value of the goods or $170,000, whichever was greater.[16]
[16] Section 233AB(2)(a) of the Customs Act.
In this case there were three offences. Section 4K(4) of the Crimes Act 1914 (Cth) provides that a court may impose one penalty in respect of multiple federal offences that are joined in the same information, complaint or summons. Any global penalty cannot exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. Accordingly, the maximum global fine was $510,000 and the jurisdictional limit for such a global fine was $102,000.
In considering the relative seriousness of an offence against s 233(1)(b) of the Customs Act, it is also necessary to bear in mind the wide range of imports which are prohibited. As Hall J noted in Gill v Chief Executive Office of Customs,[17] in the context of charged of importing anabolic steroids:
However, in my view, it is important to bear in mind that the maximum penalty is not one that is confined to the importation of drugs or steroids like those involved here. The Customs (Prohibited Imports) Regulations 1956 (Cth) also list a range of other things which cannot be imported (either at all or without permission) including certain breeds of dog, human embryo clones, weapons, certain toys, items containing specific concentrations of lead or other metals, and some chemicals. In these circumstances, the maximum penalty cannot necessarily be understood as an indication of the seriousness with which the legislature views the importation of anabolic steroids in particular. Any assessment of the seriousness of these offences by reference to the maximum penalty needs to take into account the range of conduct that the offence encompasses.
[17] Gill v Chief Executive Officer of Customs [2009] WASC 222 [25].
There is no established range of sentences imposed in respect of offences of the current kind. The primary judge was correct to conclude that the cases referred to at [24] - [25] and [38] - [43] of the Primary Decision provide little guidance.[18] The circumstances of many of those cases are entirely different from the present, so that they do not constitute useful comparators. Other references were to first instance decisions which, for present purposes, are not helpful comparators and for which, in any event, insufficient detail was provided as to the circumstances of the offence or the offender. The same may be said of the cases listed at annexure A of the reasons in Gill.
[18] Primary Decision [44].
In the present case, the appellant engaged in a series of importations which involved a degree of planning. He planned to sell the large number of imported ice pipes at a significant profit. This was an ongoing commercial operation, involving ice pipes which the appellant was able to purchase for 73c each and sell for between $60 and $120. The appellant knew that the ice pipes were prohibited imports used for consuming methylamphetamine, and, although he used his own name and address on the consignments, he took steps to avoid detection by Customs. Significant harm to the Australian community would follow from the consumption of methylamphetamine which the ice pipes were designed and intended to facilitate. General and personal deterrence were sentencing considerations to which significant weight was appropriately given.
It is also relevant to note that the appellant was a registered pharmacist who must have appreciated the damaging effects of methylamphetamine and the manner of its use in the community. The appellant made a conscious decision to engage in a course of conduct by which he sought to profit from the sale of items which would facilitate the use of methylamphetamine. He had discussions with his suppliers as to steps to disguise the importation to avoid detection by Customs officers. Senior counsel for the appellant was right to concede the serious nature of the offending in these circumstances.
Against those aggravating factors were the mitigating factors of the appellant's plea of guilty, his cooperation with authorities and his previous good character. Although the plea of guilty was entered at a very late stage, the appellant explained that the lateness was a result of conflicting legal advice he had received. While the appellant demonstrated no genuine remorse, his plea of guilty facilitated the administration of justice.
Having regard to all of the circumstances of this case, and to all relevant sentencing principles, we are not satisfied that the global fine imposed in this case was unreasonable or plainly unjust. In our view, the sentence was of a severity that was appropriate in all the circumstances of the offences,[19] having regard to the matters referred to in s 16A(2) of the Crimes Act which are applicable to this case. Further, in our view the global fine of $60,000 bears a proper relationship to the overall criminality involved in all three offences viewed in their entirety, having regard to all of the relevant facts and circumstances including those referable to the appellant personally.
[19] Section 16A(1) of the Crimes Act.
Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL2 OCTOBER 2018
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