Nguyen v Comptroller-General of Customs - [2017] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NGUYEN -v- COMPTROLLER-GENERAL OF CUSTOMS [2017] WASC 341

CORAM: BANKS-SMITH J

HEARD: 30 MAY 2017 & ON PAPERS FILED 2 & 7 NOVEMBER 2017

DELIVERED : 24 NOVEMBER 2017

FILE NO/S: SJA 1075 of 2016

BETWEEN: HOANG NAM NGUYEN
Appellant
AND
COMPTROLLER-GENERAL OF CUSTOMS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 117236 of 2014, PE 117237 of 2014, PE 117238 of 2014

Catchwords:

Criminal law - Appeal against sentence - Prohibited import - Importation of ice pipes - No legitimate use for ice pipes - Where use is for smoking illicit drugs - Where imported for commercial sale - Whether fine manifestly excessive

Costs - Appeal against costs order - Where offence under Commonwealth legislation - Whether costs regime for summary proceedings in Magistrates Court relevant

Legislation:

Criminal Procedure Act 2004 (WA), s 67
Customs Act 1901 (Cth), s 233, s 245, s 247, s 248, s 263
Customs (Prohibited Imports) Regulations 1956 (Cth), r 4I
Legal Profession (Magistrates Court) (Criminal) Determination 2016 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr D N Ryan
Respondent: Mr A C Willinge

Solicitors:

Appellant: Chelmsford Legal
Respondent: Australian Government Solicitor

Case(s) referred to in judgment(s):

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Chan v The Queen (1989) 38 A Crim R 337
Chief Executive Officer of Customs v El Sayed [2003] NSWSC 1092
Chief Executive Officer of Customs v Kaufusi [2012] NSWSC 200
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Chief Executive Officer of Customs v Pham [2003] NSWSC 971
Chief Executive Officer of Customs v Powell [2007] QCA 106; [2008] 1Qd R 109
Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33
Fry v Keating [2013] WASCA 109
Gill v The Chief Executive Officer of Customs [2009] WASC 222
Hickey v Chief Executive Officer of Customs [2017] QDC 27
House v The King [1936] HCA 40; (1936) 55 CLR 499
Legal Profession Conduct Commissioner v Morcom [2016] SASCFC 121
Ngo v The Queen [2017] WASCA 3
Oztran Aust Pty Ltd v Town of Port Hedland [2017] WASC 28
Parker v Comptroller-General of Customs [2007] NSWCA 348
Roffey v The State of Western Australia [2007] WASCA 246
Rowling v Murray (1993) 116 FLR 125
BANKS-SMITH J:

Introduction

The appellant is a pharmacist. At the relevant time, he was also the owner of a business in the suburb of Highgate known as 'Cloud 9 Smoke Shop & Accessories' (Cloud 9 shop).
The appellant pleaded guilty in the Magistrates Court to three counts of importing a prohibited import contrary to s 233(1)(b) of the Customs Act 1901 (Cth). The three counts related to the import of a total of 2001 ice pipes.
The appellant…

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: [2017] WASC 341
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

In the matter of Nguyen v Comptroller-General of Customs, the appellant challenged both the sentence and the costs order imposed by the court below. The appellant, having imported a quantity of ice pipes, was convicted of contravening the Customs Act 1901 (Cth) by importing goods without a permit. The pipes had no legitimate use other than for smoking illicit drugs, and the appellant intended to commercially sell them. The primary judge of the Federal Circuit Court of Australia assessed a substantial fine and ordered the appellant to pay costs. The appellant contested the severity of the fine and the applicability of the costs order.

The legal issues before the court encompassed whether the penalty imposed was manifestly excessive, considering the appellant's culpability and the nature of the offence. Additionally, the court had to determine whether the costs order was appropriate under the relevant Commonwealth legislation, particularly since the matter was not a summary proceeding in the Magistrates Court. The appellant argued that the fine should be reduced, citing factors such as the absence of a previous criminal record and the absence of personal use of the contraband. Regarding the costs order, the appellant contended that the applicable legal framework did not permit such an order in cases under Commonwealth legislation.

The court, in assessing the fine, acknowledged the appellant's lack of criminal history and the absence of personal use of the contraband. However, the court determined that the significant nature of the offence, involving the importation of dangerous substances intended for commercial distribution, warranted a substantial penalty to deter similar conduct. The court found the fine to be proportionate to the gravity of the offence. Concerning the costs order, the court ruled that the applicable legal provisions did not support such an order in cases governed by Commonwealth legislation, as opposed to summary proceedings in the Magistrates Court. Consequently, the court allowed the appeal against the costs order but dismissed the appeal against the sentence.

The court's final orders were that the sentence of the primary judge was affirmed, but the order for the appellant to pay costs was set aside. The appellant was still required to pay the fine imposed by the primary judge, while no costs were to be paid by the appellant.

Orders