R v Fang
[2018] VCC 762
•31 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00268
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| YUNN CHANG FANG |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2018 | |
DATE OF SENTENCE: | 31 May 2018 | |
CASE MAY BE CITED AS: | R v Fang | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 762 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of possessing tobacco products knowing that the goods were imported with intent to defraud the revenue pursuant to s233BABAD(2) of the Customs Act 1901 (Cth)
Legislation Cited:
Cases Cited:
Sentence: 2 years imprisonment to be released after serving 12 months imprisonment on a Recognisant Release Order for 2 years in the sum of $2,000. 6AAA- 2 ½ years, to be released after serving 18 months on a Recognisance Release Order for 2 ½ years in the sum of $3,000.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms L Skublar | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K Blair | Matthew White & Associates |
HER HONOUR:
1 Yunn Chang Fang, you have pleaded guilty to one charge of possessing tobacco products knowing that they were imported with intent to defraud the revenue contrary to s233BABAD(2) of the Customs Act 1901 (Cth). This charge carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Opening (Exhibit “A”). On 10 August 2017, you were arrested at a warehouse in Bryants Road, Dandenong, where you had been unpacking the contents of a shipping container. This contained 2,016,000 cigarettes, which were concealed within blue plastic tubs. The importation of these cigarettes evaded Customs duty of $1,244,396.16.
3 You are a citizen of Malaysia and arrived in Australia on 21 July 2017 at the Gold Coast Airport in Queensland. You had a return ticket scheduled to depart Australia, 5 days later, on 26 July 2017, and had a tourist visa. On your Incoming Passenger Card you declared that you were a student and had an intended length of stay of five days in Australia. In the course of your baggage being examined, you told an Australian Border Force Officer that the purpose of your travel was to visit all four theme parks around the Gold Coast and that you did not intend to travel to other parts of Australia.
4 On the day that you arrived, you purchased a one-way ticket to depart from the Gold Coast for Melbourne on 23 July 2017. You boarded that flight, which arrived at Avalon Airport, where CCTV footage showed you leaving the airport after having been picked up by a vehicle with New South Wales registration plates.
5 On 25 July 2017, you opened a Commonwealth Bank account in your own name in Waurn Ponds, Victoria. You used your own passport as identification, but your residential address was listed as 18 Ferndale Parade, Highton, Victoria, 3216, which was a false address. On 2 August 2017, you made an online booking to hire a vehicle with Apex Car Rentals. This was hired in your own name, with the previously mentioned false residential address. On 3 August 2017, you checked in to accommodation at the Comfort Inn at 124-126 Princes Highway, Dandenong, which was a relatively short distance from the Bryants Road warehouse. You checked in under your own name and, initially, made a reservation for six nights, paying with a Mastercard attached to the Commonwealth Bank account which you had opened. On 9 August 2017, you extended your reservation at the Comfort Inn until 12 August 2017.
6 On 10 August 2017, you attended the Bryants Road warehouse at approximately 8.30am and opened the rear roller door. At approximately 10.05am, a truck arrived carrying the consignment which contained the illegally imported cigarettes. You took receipt of the delivery by signing an illegible signature, which was not your own signature. You then left the warehouse. At 1.15pm, you returned and began unpacking the shipping container and placing the contents against a wall in the warehouse. You opened one of the items whilst taking a call on a mobile phone. This call was from a service number linked to persons at a commercial address at 25 Merri Concourse, Campbellfield, Victoria, an address known by Federal Agents to be connected to the illegal importation of cigarettes into Australia.
7 At about 3.15pm on 10 August 2017, Australian Border Force Officers attended the Bryants Road warehouse to execute a search warrant and requested that you open the door. You refused, indicating that you required a key to open the door. You then exited through a doorway and Australian Border Force Officers forced entry, although, as it transpired, the door was not locked. In any event, the key to the premises was found in a pocket of a hooded jumper of yours, which you had left beside the door through which you exited.
8 You were arrested by police and, in a Record of Interview, claimed that you had come to Melbourne to try and find a job and planned to stay six months. You stated that, in Australia, you had met a Malaysian person on social media called “Derf”, who stated that he would give you well-paid work loading and unloading goods. You were given the address of the Bryants Road warehouse and told that the keys to the premises would be left there and that you would be paid $1,000 to remove the contents of the shipping container. You admitted that you took receipt of the shipping container by signing with a “fake signature”.
9 At the plea hearing, Ms Blair made submissions on your behalf that, although you had pleaded guilty to the offence, the court could not be satisfied beyond reasonable doubt that you had entered Australia with knowledge of the illegal nature of the work which you undertook. She stated that, although you had told police in your Record of Interview that you were to be paid $1,000 to unpack the container, in fact, within a couple of days of coming to Melbourne, you were told you would be paid $10,000-$20,000 and this factor effectively alerted you to the illegality attached to the container which you were asked to unload.
10 Although I am not able to be satisfied beyond reasonable doubt that you knew the precise content or value of the illegal consignment which you were asked to unload, I am satisfied beyond reasonable doubt that you entered Australia with knowledge that you were to undertake some form of illegal activity here. The evidence from which I draw this inference is as follows:
· When you arrived in Australia on 21 July 2017, you told lies to Australia Border Force officials about planning to stay for only five days for tourist activities and not planning to travel interstate.
· On the day of your arrival you booked a flight to Melbourne for two days hence.
· From the day after you arrived in Australia, namely 22 July 2017, you had many telephone calls with mobile phone numbers known by Australia Border Force officers to be connected with illegal importation of tobacco. This included a call from a service number when you arrived at Avalon Airport in Melbourne on 23 July 2017.
· On arrival at Avalon Airport, you were picked up and transported from the airport.
· You used a false address to open a Commonwealth Bank account and, also, when hiring a car.
· You took up residence at the Comfort Inn in Dandenong on 3 August 2017, the date that the ship arrived in Melbourne carrying the illegally imported cigarettes.
· You extended the stay of your accommodation at the Comfort Inn beyond 9 August 2017, in circumstances where arrangements had been made for the delivery of the consignment to the Bryants Road warehouse on 10 August 2017.
11 Mr Fang, the offence to which you have pleaded guilty is a serious offence. The Parliament of Australia has imposed increased duties on the importation of tobacco in order to discourage the use of tobacco. Of course, you have pleaded guilty to possession of the illegally imported tobacco products rather than importation of them. However, the crime you have committed is one which is against the government’s revenue. It lessens the amount of revenue available to the government in order to provide services and infrastructure for the Australian community. When the revenue is diminished, all those citizens who pay taxes have an increased burden placed upon them.
12 Further, the illegal importation of tobacco usually results in cheap tobacco being made available in the community, which has not been subjected to any quality control. This erodes the attempts of Parliament to reduce the harmful effects of tobacco use on the health of those who use it in the Australian community.
13 It is also important to note that illegal importation of tobacco, like the consignment which you possessed, is a crime which is difficult to detect. A great deal of time, diligence and resources are required by law enforcement bodies to investigate these crimes. The financial burden for these ends up being borne by the Australian tax payer.
14 For all of these reasons, the court must denounce your conduct and place emphasis upon general deterrence, so that others who are minded to take the risk of being involved with illegally imported tobacco will know that the risk is not worth the penalty that the courts will impose for such criminal offending. In imposing a sentence, I must ensure that it is adequate to punish for the severity of this crime.
15 Although there is no evidence that you knew the amount of cigarettes in the illegally imported consignment or the amount of revenue of which the government was being defrauded, the fact is that you have pleaded guilty to a charge which includes possession of the tobacco products knowing that they were imported with intent to defraud the revenue. It was a large consignment of 2,016,000 cigarettes, and the excise duty and GST on those cigarettes was $1,244,396.16. This is a very considerable amount of money.
16 It would appear that the importation, itself, has been undertaken by a well-organised professional enterprise. Although there is no evidence that you played any role in the actual importation, those engaged in illegal importations would not succeed if it were not for people, like yourself, being prepared to make themselves available to receive the goods and unpack them ready for transportation elsewhere.
17 You have admitted that you committed this crime for financial gain. According to your counsel, this was to be between $10,000 and $20,000. Using a false residential address in order to open a bank account and to hire a car, obtaining accommodation at the Comfort Inn, and attending the Bryants Road warehouse, taking possession of the key there, signing to accept the consignment with a fake signature, and unpacking the cigarettes, were all steps taken by you to facilitate the illegally imported cigarettes being made available in the community. In sentencing you, there is also some need for emphasis upon specific deterrence. However, this is lessened now, given that you have spent time in an Australian prison for in excess of seven months. Nevertheless, in all of the circumstances, there can be no sentence appropriate other than an immediate custodial sentence, and this has been conceded by your counsel, Ms Blair.
18 You are currently aged 23 years, having been born on 12 November 1994. You come before the court with no prior convictions. However, many people of prior good character offend in the way in which you have done. For this reason, it is given limited weight as a mitigating factor when sentencing for these types of offences.
19 You were born in Malaysia and your parents separated when you were aged seven. You had little to do with your father after he moved away from the family, and your mother, sister and yourself were not well-off. Whilst still at school as a young teenager, you carried out part-time work to help your mother in a small catering business.
20 You did not enjoy your school years in Malaysia due to receiving unwelcome attention from others centring on your Chinese ethnicity. After leaving school, you completed a mechanic’s apprenticeship over a period of four years, but were not well-paid. You then moved to Singapore to work in a factory operating machines, which made medical equipment, and would send money back to your mother and sister from Singapore. Even though you were better paid in Singapore, you were not particularly well-off as you had living expenses in excess of those which you had whilst living with your mother and sister in Malaysia.
21 You told some lies to police in your Record of Interview, however, you ultimately accepted responsibility for your wrongdoing, and the Crown accepts that your plea of guilty was entered at an early stage. Although there is no evidence other than your plea of guilty which would enable me to find remorse, your plea does have substantial utilitarian benefit. For this reason, you are entitled to a discount on the sentence which, otherwise, would have been imposed.
22 Your counsel has stated that you have found it very isolating being in custody. This is not a matter which I should take into account in mitigation as I have found that you entered Australia expecting to be engaged in illegal activity, albeit that, as I have stated, I could not be satisfied beyond reasonable doubt that you knew the nature and extent of such illegal activity prior to your arrival.
23 You have apparently been well-behaved in custody and have worked in the laundry at Fulham Prison and used the $30 per week earnings from that job in order to make telephone calls to your family in Malaysia. You have also undertaken an English course of some weeks to try to attain a basic level of English.
24 Given your relatively young age, your lack of prior convictions, and your acceptance of legal responsibility by pleading guilty to the charge, I consider that your prospects of rehabilitation are probably good. Although your role was essential for the importers to succeed in moving the tobacco products within Australia, the use of your own name when purchasing a plane ticket, hiring a car and opening a bank account (for which you also used your own passport), showed a lack of sophistication. This contrasts with the overall sophisticated planning and extent of the enterprise engaged in by those who organised the importation. I regard you as a low-end participant in this enterprise. There is no evidence that you had knowledge of what was to happen to the cigarettes after you unpacked them. I accept that you did not actually receive any of your expected financial remuneration.
25 In sentencing you, I must impose a sanction of a severity appropriate in all the circumstances. I have referred to those matters in s16A of the Crimes Act 1914 (Cth) as are relevant and known to the Court. I have taken into account those matters personal to you, together with the role that you played and the gravity of the offending overall. I am mindful of the importance of achieving consistency in sentencing in accordance with established sentencing principles. I have concluded that the following sentence is a just and appropriate sentence.
26 On one charge of possessing tobacco products knowing that they were imported with intent to defraud the revenue, you are convicted and sentenced to be imprisoned for a period of two years commencing today. I order that on the expiration of a period of one year, you be released upon entering into a recognisance to be of good behaviour for a period of two years with yourself as surety in the sum of $2,000, without such security being required to be deposited.
27 Mr Fang you are not required to pay the $2,000 now. That would only be required if you failed to be of good behaviour in the two years after you are released from custody. If you are not of good behaviour and, particularly if you re-offend, you will have breached the recognisance release order, so you may also be ordered to serve a further period in prison.
28 I declare a period of 294 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
29 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that, had it not been for your plea of guilty, the total effective sentence imposed would have been two and a half years’ imprisonment with a period of 18 months to be served before being released upon a Recognisance Release Order in the sum of $3,000 for a period of two and a half years.
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