R v Moxon

Case [2015] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moxon [2015] QCA 65

PARTIES:

R
v
MOXON, Anthony Thomas
(applicant)

FILE NO/S:

CA No 293 of 2014
DC No 1859 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

Order delivered ex tempore 7 April 2015
Reasons delivered 24 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2015

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore on 7 April 2015:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 29 forgery counts relating to phytosanitary certificates and one count of contravening regulations relating to official marks – where the applicant was the CEO, director and secretary of a timber export company – where the Commonwealth statutory regime required that phytosanitary certificates be sent with exports of wood to foreign countries – where these certificates can only be issued by the Commonwealth Department of Agriculture, Fisheries and Forestry (DAFF) – where the applicant organised a false DAFF stamp for use by the company in which employees used the stamp to produce false phytosanitary certificates – where the applicant was sentenced to two years imprisonment with release after eight months upon entering a recognizance of $1,000 and on condition of good behaviour for two years – where the applicant contended that the primary judge erred in not taking into account the nature of the offences – where the applicant contended that the primary judge erred in not taking the guilty plea into account – where the applicant contended that the primary judge erred in failing to acknowledge the significant delay of more than five years between when the authorities began their investigation and the date of sentence – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 4AA, s 4B, s 16A, s 17A, s 19B(1)(d), s 20(1)(b)
Criminal Code 1995 (Cth), s 143.3, s 144.1(5)

Export Control Act 1982 (Cth), s 14

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited
R v L; ex parte Attorney-General [1996] 2 Qd R 63; (1995) 84 A Crim R 142; [1995] QCA 444, cited
R v Morex Meat Australia Pty Ltd and Doube [1996] 1 Qd R 418; (1995) 129 ALR 546; [1995] QCA 154, cited
R v Sadeed [2004] QCA 32, cited
Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114, cited

COUNSEL:

P J Callaghan SC, with M J McCarthy, for the applicant
W Abraham QC, with M Woodford, for the respondent

SOLICITORS:

Russo Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

  1. MARGARET McMURDO P: The applicant, Anthony Moxon, pleaded not guilty…

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Details
AGLC
R v Moxon [2015] QCA 65
Case
[2015] QCA 65
Decision Date

CaseChat Overview and Summary

In the case of R v Moxon, the applicant, who was the CEO, director, and secretary of Moxon and Company Pty Ltd, a timber export company, appealed against his sentence of two years imprisonment with release after eight months. The applicant pleaded guilty to 29 counts of forgery relating to phytosanitary certificates and one count of contravening regulations relating to official marks. The offences involved the applicant organising a false stamp of the Commonwealth Department of Agriculture, Fisheries and Forestry (DAFF) for use in producing false phytosanitary certificates for timber exports. The primary judge sentenced the applicant to two years imprisonment with release after eight months upon entering a recognizance of $1,000 and on condition of good behaviour for two years.

The court was required to determine whether the primary judge erred in not taking into account the nature of the offences, not considering the guilty plea, and failing to acknowledge the significant delay between the investigation and sentencing. The court also needed to assess whether the sentence was manifestly excessive. The applicant argued that the sentence was too severe given the absence of actual damage resulting from the exported timber, and that the delay in the investigation and sentencing should have been considered as a mitigating factor.

The court found that the primary judge had adequately considered the nature of the offences and the potential harm to Australia's reputation and international standing. The court noted that the applicant's actions risked compromising the integrity of Australia's export inspection and certification system and exposed Australia to criticism for non-compliance with the International Plant Protection Convention (IPPC). The court held that the sentence was not manifestly excessive and that the primary judge had appropriately exercised his discretion in sentencing the applicant.

The application for leave to appeal against sentence was refused. The court found that the primary judge had correctly considered the relevant factors in sentencing the applicant, and that the sentence was appropriate given the seriousness of the offences and the potential harm to Australia's reputation and international standing.

Orders

Orders of the court

Delivered ex tempore on 7 April 2015:

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

What follows are my reasons for refusing this application for leave to appeal against sentence.The Background The maximum penalty for each forgery offence was 10 years imprisonment and/or a fine of $66,000.[1] The maximum penalty for contravention of the regulations was five years imprisonment and/or a fine of $33,000.[2][1]Criminal Code 1995 (Cth) s 144.1(5); Crimes Act 1914 (Cth), s 4AA and 4B.[2]Export Control Act 1982 (Cth), s 14; Crimes Act 1914 (Cth), s 4AA and 4B. The applicant was aged between 51 and 54 at the time of the offending and 59 at sentence. He had no prior convictions. He was the majority shareholder and CEO of Moxon and Company Pty Ltd, an importing and exporting timber company. The Commonwealth statutory regime required that phytosanitary certificates must be sent with exports of wood to foreign countries. These certificates can be issued only by the Commonwealth Department of Agriculture, Fisheries and Forestry (DAFF). The applicant organised a false DAFF stamp for use in a scheme operated under his management in which the company employees used the stamp to produce false phytosanitary certificates. He pleaded guilty as a party to the company’s offending. His forgery offences occurred between August 2006 and May 2009 and the breach of regulations between May 2005 and June 2009. The offences were detected when a disgruntled former employee acted as a whistle-blower and gave information to the Australian Quarantine and Inspection Service (AQIS) in March 2009.The judge’s reasons for sentence The judge published written reasons relevant to the sentencing of all five offenders[3] on 3 October 2014 before giving oral reasons for individually sentencing each offender. His Honour noted in his written reasons that the whistle-blower had given information to police on 30 March 2009; a search warrant was executed on 1 July 2009 and after a long investigation the offenders were charged on 9 November 2012.[4] The committal hearing took place over three days in July 2013.[5] The indictment was presented on 6 December 2013. Ms Mason pleaded guilty on 6 June 2014 having foreshadowed her guilty pleas at the committal hearing. The trial commenced on 8 September 2014 when Mr Wilson and Mr Affleck pleaded guilty before the jury was empanelled. The company and the applicant pleaded not guilty. A jury was empanelled but sent away during legal argument. After the judge ruled that a New Zealand Ministry of Forestry certificate did not fit the description of a false Commonwealth document under s 143.3 Criminal Code 1995 (Cth), the prosecution indicated it would not proceed with those counts which relied on that document. The company and the applicant then pleaded guilty to the present charges and the jury was discharged.[6][3]SRB, 121-129.[4]SRB, 122, [6].[5]SRB, 122, [7].[6]SRB, 123, [10]. His Honour noted that AQIS undertook import and export inspection and certification aimed at maintaining “Australia’s highly favourable animal, plant and human health status and wide access to overseas markets.” Exporters must meet the requirements of the Export Control Act 1982 (Cth) and subordinate legislation, as well as any requirements of the importing country, before AQIS will provide a certificate. Australia is one of 180 signatory countries to the International Plant Protection Convention (IPPC), established in 1952 to protect cultivated and wild plants by preventing the introduction and spread of pests.[7] Adherence to the IPPC was in the national interest. It did not matter if an exporter perceived that the certificates were inconvenient because the exporter believed it had adequately treated the export material. The regime was designed to ensure that Australia met its obligations under the IPPC and to the importing country.[8][7]SRB, 123, [11].[8]SRB, 123 – 124, [12].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s first ground of appeal is that the primary judge erred in not taking into account the nature of the offences as required by s 16A Crimes Act. There was no quantifiable injury, loss or damage caused by these offences, rather the offending created a risk of damage to Australia’s reputation as a trading partner. Whilst some offences of this kind caused actual damage, this offending did not. The prosecution did not assert that the relevant consignments of the timber were not properly treated, only that they were not validly certified. The primary judge accepted that the timber had been properly treated. There was therefore no actual damage resulting from the exported timber, or as the applicant’s counsel put it, “no functional risk.” This was a distinguishing factor from cases such as R v Morex Meat Australia Pty Ltd & Doube[22] and R v Sadeed.[23] The applicant’s offending was much less serious than had he exported diseased timber which had not been fumigated in accordance with Australian and international requirements. His Honour did not fully and properly characterise the nature of the offence so that s 16A was not complied with and the sentencing process miscarried.[22](1995) 129 ALR 546; [1995] QCA 154.[23][2004] QCA 32.Conclusion on this ground of appeal The applicant’s contentions are not supported by the judge’s reasons for sentence. His Honour in his written sentencing reasons expressly referred to the following matters. There was no evidence the timber exported by the applicant’s company as a result of the false certificates did not meet all the necessary statutory requirements other than the certification.[24] The Commonwealth legislative regime as to export inspection and certification was aimed at maintaining Australia’s highly favourable plant health status and wide access to overseas markets. Australia was a signatory to the IPPC with the purpose of protecting plants internationally by preventing the introduction and spread of pests.[25] Adherence to the IPPC was in the national interest, irrespective of whether an exporter like the applicant’s company perceived the certificates were inconvenient because the export timber was adequately treated.[26] The applicant’s actions risked compromising the integrity of Australia’s export inspection and certification system and exposed Australia to criticism for non-compliance with the IPPC. It could result in importing countries closing market access to not only the applicant’s company but to all Australian exporters and in the imposition of tougher requirements on all Australian exporters with higher costs and fewer competitors in the international market. The applicant’s offending undermined Australia’s international standing and the role it played in assisting other nations to comply with the IPPC. It exposed Australia to criticism from foreign competitors. It put at risk Australia’s $2 billion annual timber export industry. It had the potential to damage Australia’s reputation and to cause economic harm to the timber industry including to the competitors of the applicant’s company and to all those employed in the Australian timber industry.[27][24]At [29].[25]At [11].[26]At [12].[27]At [13] - [14].

Ratio Decidendi

Legal Principle Established

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