Nguyen v Comptroller-General of Customs - [2018] WASCA 170

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…

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.

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Details

Case: [2018] WASCA 170
Decision Date: 2 OCTOBER 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Nguyen v Comptroller-General of Customs involved a defendant who was charged with the importation of a prohibited item, specifically ice pipes, under the Customs Act 1901. The primary issue before the court was whether the fine imposed on the defendant was manifestly excessive, considering the circumstances of the case and the relevant sentencing principles.

The court needed to examine the specific details of the offence, including the nature and quantity of the prohibited items, the defendant's intent, and any relevant mitigating or aggravating factors. It was also necessary to assess whether the fine imposed was disproportionate to the offence, taking into account the maximum penalty prescribed by the Customs Act, the principles of proportionality and justice, and any relevant precedents.

The court held that the fine imposed on the defendant was not manifestly excessive. It found that the penalty was within the maximum limit set by the statute, and the court had considered all relevant factors, including the defendant's intent, the quantity of the prohibited items, and any mitigating circumstances. The court emphasised the importance of proportionality in sentencing and noted that the fine imposed was consistent with other cases involving similar offences. The appeal against the fine was therefore dismissed.

No further orders were made by the court, and the fine imposed on the defendant remained in place.

Orders