R v Simonetta

[2017] VCC 2015

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MILDURA
CRIMINAL JURISDICTION

CR-17-02100

THE QUEEN

v

GIUSEPPE SIMONETTA

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	14 December 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	R v Simonetta
MEDIUM NEUTRAL CITATION:	[2017] VCC 2015

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing

Catchwords: Breach of s. 245AC(1) Migration Act 1958 (Cth) and s. 245AB(1) Migration Act 1958 (Cth) – early plea of guilty – no prior criminal history – monetary fine imposed with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr P. Darby	Commonwealth Director of Public Prosecutions
For the Accused	Mr R. Gunn	Carina Ford Lawyers

Pages 1 - 15

 

 

1Giuseppe Simonetta, you have pleaded guilty to 12 charges on a Federal indictment.  They are: 

·Charges 1 to 5: Allowing a lawful non-citizen to work in breach of a work-related condition contrary to s. 245AC(1) of the Migration Act 1958 (Cth);[1] and

·Charges 6 to 12: Allowing an unlawful non-citizen to work contrary to s.245AB(1) of the Migration Act 1958 (Cth).[2]

[1]

[2] Section 245AB of the Migration Act 1958 was also repealed and replaced with new s.245AB, effective 1 June 2013. Accordingly, Charges 6, 8, and 10 are charged under the old offence provision, and Charges 7, 9, 11, and 12 are charged under the new offence provision. Charge 7 is a continuation of Charge 6, Charge 9 is a continuation of Charge 8, and Charge 11 is a continuation of Charge 10.

2All charges are serious and that is reflected in the maximum penalty that is prescribed for each charge namely, two years' imprisonment and/or a fine of 120 penalty units.  The maximum monetary penalty equates to $194,000.

3The maximum penalty provides a real indication of the objective seriousness of the offences and it does serve as a yardstick for the court and provides a basis for comparison between the case before the court and also cases warranting the maximum penalty.[3]

[3]Markarian v The Queen (2005) 228 CLR 357.

4Owing to the repeal and replacement of the offence provisions in 2013, a number of charges had to be "split".  Charge 7 is a continuation of Charge 6, Charge 9 is a continuation of Charge 8, and Charge 11 is a continuation of Charge 10.  It is accepted that, in the exercise of the sentencing discretion, each of the three sets of charges should be regarded as a single period of offending and that reflects that your offending was a continuing course of conduct.

5In sentencing you, I have had regard to Part 1B of the Crimes Act 1914 (Cth). Because these are federal offences, the primary obligation is on the court to impose a sentence or make an order that is of severity appropriate in all the circumstances of the offence.[4] 

[4] Crimes Act 1914 (Cth), s.16A(1).

6In formulating the appropriate sentence, I have had regard to the non-exhaustive list of matters set out in s.16A(2) of the Crimes Act 1914 (Cth). I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing by Mr Darby and is marked as Exhibit 1.

Sentencing Principles

7The gravamen of your offending is that you allowed or continued to allow Malaysian nationals Foong Leng Lok, Sze Mun Lok, Yann Fen Chan, Fui Loo Yon, Sai Woon Ng and Yen Yee Tai to work at your citrus packing business, Sim Fresh, whilst they were lawful non-citizens in breach of work-related visa conditions (Charges 1 to 5) or unlawful non-citizens (Charges 6 to 12).

8By way of background, it is estimated that there are in excess of 100,000 non-citizens working in Australia without permission.[5]  The relevant scheme of the Migration Act offences was introduced by our Federal Parliament to address concerns about those who seek to work illegally in Australia and those employers and labour suppliers who knowingly or recklessly engage non-citizens who are not entitled to work.  

[5] Stephen Howells, Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 (Cth).

9Around the time of the introduction to the changes to the Migration Act in 2013, there were many articles in all forms of media signalling the changes in the legislation. There was a lot of publicity concerning the changes.

10The employment of non-citizens who do not have permission to work in Australia is a significant problem that does have a number of consequences:

(a)it takes away job opportunities from Australian citizens and lawful migrants;

(b)as income tax is generally not withheld from the worker's income, offending of this nature therefore reduces Australia's taxation revenue;

(c)illegal workers, who are complicit in the offending, are difficult to detect, and the cost of detecting illegal workers places an unwelcome burden upon the Australian taxpayer;

(d)it undermines the integrity of Australia's otherwise orderly migration program;

(e)it imperils the competitive playing field for employers looking for workers with similar skills.  Any contravening conduct which reduces wage costs provides direct financial gain for that employer and therefore provides a competitive advantage for non-compliant employers over those who do comply with the relevant legislation.

11Whilst it can be said that workers are necessarily complicit in the offending and often travel to this country for the purpose of working illegally, that is not a mitigating factor.  When employed in Australia, non-citizens who do not have permission to work are generally underpaid, do not receive superannuation contributions and are not afforded the full range of employment entitlements available in Australia.  They are therefore vulnerable to be exploited and steps need to be taken to deter other prospective employers from undertaking the employment of such people as they are easy targets.

12The ability to successfully detect this type of offending and to prosecute employers is made more difficult by the fact that illegal workers are almost never willing to cooperate by providing statements against employers.  Having said that, the circumstances of your offending was revealed when two of your workers complained in respect to their entitlements to the Fair Work Ombudsman. 

13Taking those matters into account, and having particular regard to prevalence and social consequences of this type of offending, it is important to emphasise general deterrence and also denunciation as important sentencing considerations.

14The penalty for contravention of the Migration Act must mark the seriousness with which both Parliament and also the public regards such acts.  Compliance is designed to act as a deterrent to others by imposing serious financial consequences for non-compliance.  Employers should be in no doubt that they have a positive obligation to ensure compliance with the law.   It is important to emphasise that particularly for employers in the horticultural industry, an industry which relies heavily on migrant workers.

15Compliance with the Migration Act is an important thing to emphasise.  It is not optional and breach of the Migration Act will not be tolerated by the courts.

16I have had regard to the objective seriousness of your offending.  You employed six non-citizens whilst they were lawful non-citizens in breach of work-related visa conditions, or unlawful non-citizens and the offending occurred between early 2012 and July 2015.

17It was put on the basis that you were wilfully blind as to whether Foong Leng Lok, Sze Mun Lok, Yann Fen Chan, Fui Loo Yon, Sai Woon Ng and Yen Yee Tai were entitled to work.  Through your pleas of guilty, you now acknowledge that you were at least reckless as to the fact that, throughout that period, they were not entitled to work, either because of work-related conditions on their visa, or because their visas had expired.

18Thereafter, the offending after August 2015, at which point you decided to retain four workers – Foong Leng Lok, Sze Mun Lok, Yen Yee Tai and Sai Woon Ng – is put on the basis that you allowed them to continue to work for Sim Fresh knowing that they were unlawful non-citizens.

19This period of offending is particularly serious.  You engaged in substantial dishonesty in an attempt to conceal their identities.  You deliberately circumvented the very systems that your own company had put in place in August 2015 to ensure compliance with the law.

20By way of background, your company Sim Fresh initially had no systems or procedures in place for verifying workers' visa or citizenship status.  In 2014, your company commenced recording contractor and employee details on forms entitled "Contractor Details" and the forms stated that the workers must supply a copy of their passport and working visa in order to work at Sim Fresh.  However, there were no processes at your company for ensuring compliance with this procedure or for verifying any documents or information that were provided.

21In October 2014, the Fair Work Ombudsman received two complaints from non-citizens alleging underpayment of wages by Sim Fresh.  

22Between November 2014 and July 2015, Fair Work Ombudsman inspectors engaged with your company on a number of occasions to ensure that you were meeting industry standards in relation to wages and entitlements.

23I am satisfied that the inspectors also discussed the need to ensure all workers had valid visas and that they provided advice on appropriate systems and procedures available to ensure compliance.

24In June 2015, Sim Fresh decided that as of 1 July 2015 it would employ all workers directly and ceased all use of labour hire intermediaries.

25In around August 2015 Sim Fresh commenced paying workers directly into their nominated bank accounts.  Individual Flexibility Agreements (IFAs) were established for each worker and a process was developed for checking and recording the visas of workers.  A biometric fingerprint system that recorded the workers' hours and produced electronic time records was installed.

26Around that time, you decided to retain Foong Leng Lok, Sze Mun Lok, Yen Yee Tai and Sai Woon Ng as workers at Sim Fresh.  By that point, all four workers were unlawful non-citizens.

27You devised alternative processes to conceal each of the four workers' identities and employment at Sim Fresh, thereby deliberately flouting your own company's processes.  You created aliases for recording them in the fingerprint system, paid them in cash (as opposed to via the electronic payroll) and failed to create IFAs or any other employment records for them.  From this time, you started paying the four workers $16 per hour cash on a weekly basis.

28Your company, Sim Fresh, is the third largest citrus packing company in Australia and, it is accepted, was dependent on human labour to process sorting and packing of citrus fruit.

29Due to labour shortages in the Sunraysia region, you relied on a labour hire contractor, Alfred Kee, to source and organise semi-skilled labour.

30In the early period of offending between early 2012 and July 2015, you accepted representations made by Kee that all workers supplied by him met the appropriate visa requirements and had the appropriate work rights.  

31On or around May 2015, following a program broadcast on the ABC, 4 Corners program, that was broadcast, you became concerned about the prospect of using potentially unlawful workers and demanded proof from Kee as to the legal status of your workers.  He was evasive and not forthcoming with the requested details.

32Sim Fresh then moved to direct employment of staff and implemented a Fair Work Ombudsman compliant system.  Kee has subsequently left Australia.

33I accept that you were labouring under some family difficulties during 2015.  They were your late mother's diagnosis and treatment for cancer, illnesses to which she ultimately succumbed and also, your daughter had complex health issues surrounding the birth of her children.  The consequence of that was that several of your family members who played key roles in the business were not able to contribute as much as they otherwise would.

34You then took the step, which you now regret, of employing the four workers within the business even though you were aware that none of them had lawful work visas.  The prospect of losing four of your most dependable workers at such a turbulent time for the family, you believed, created an additional and unnecessary problem to you, and so you made the regrettable decision that you would retain them and took steps to deliberately conceal their employment.

35Whilst I accept that the background does provide some context to your offending, it in no way excuses your behaviour.  I am satisfied that your actions were expedient and part of the motivation for the offending was to retain workers who were dependable but also part of the motivation was profit by way of engagement of cheap, readily available and reliable workers who were willing to be paid cash at a lower rate than would otherwise be paid and who would work for extended hours.

36Your company, Sim Fresh, is one of Australia's largest family-owned citrus packing companies.  It is a successful business, described as the third largest citrus packing business in Australia.  It is therefore important that your company adheres to the law and sets an example for the horticultural sector.  It was wrong that you participated in these arrangements whereby you actively circumvented visa requirements or ignored visa requirements under the Migration Act.

37As was stated during the plea hearing, I do not accept as a mitigating factor that the workers were complicit in the offending and came to Australia with the intention of working illegally.  There is only incentive for such people to come to Australia because employers such as yourself are willing to employ them on the terms that circumvent the legislation.  I do note, however, that it was not suggested that the workers were coerced into working for you.  However, the absence of coercion or any other circumstances of exploitation does not mitigate against the offending.

38Your offending spanned a lengthy period of time, almost four years, and it is a course of conduct, and is not a momentary lapse on your part.[6]

[6]Crimes Act 1914 (Cth), s 16A(2)(c).

39Overall I am satisfied that, in totality, this is a serious example of offending of this kind.  There is a need for the sentence to act as a general deterrent for those in the community who are so minded to flaunt the Migration Act; to warn them that should they do so, stern punishment will follow.

Personal Circumstances of the Offender and Mitigating Factors

40I have taken into account your personal circumstances and the mitigating factors.  You are a person who is now aged 58.  At the time of the offending, you did not have a criminal record.  I accept that you are a person of otherwise prior good character.

41I have read all the many references that were provided to the court that do attest to your general good character and I accept that you can be described as a hardworking successful businessman who is very committed to his family and the business but also is otherwise a very productive member of the community in the Sunraysia district.  

42I accept that being charged and the court process has had a very salutary effect upon you.  And I also accept that you have now taken proper steps to ensure that your business is now fully compliant.  In those circumstances, the need for specific deterrence has been moderated.

43I accept that your prospects of rehabilitation are excellent and the likelihood of you reoffending in the future is minimal.

44I have taken into account the plea of guilty entered at a very early stage at committal mention on 17 October 2017.  There is real utilitarian value in your plea.  I am satisfied that your pleas do demonstrate genuine remorse and acceptance of responsibility, and a willingness to facilitate the course of justice and your sentence will be discounted accordingly.

45I noted your level of cooperation with the authorities following the execution of the search warrants.  You participated in three records of interview following the execution of the warrant and made a number of admissions.

46I have noted that upon conviction you will be disqualified from managing a corporation on the basis that you have committed offences involving dishonesty punishable by imprisonment for at least three months.[7]  I have taken that into account because such disqualification is a penalty in itself and equally, I have had regard to the other aspect of disqualification, namely that the purpose of such disqualification is the protection of the public by, amongst other factors, seeking to safeguard the public interest in the suitability of directors to hold office.[8]

[7]Corporations Act 2001 (Cth), s 206B(1)(a)(ii).

[8]Rich v ASIC [2004] HCA 42 per McHugh J at [50].

47In your case, I am satisfied the impact of such a disqualification on you will be minimal.  Sim Fresh is a large family business as is reflected by its corporate structure.[9]  There are brothers and other family members who can continue to manage the relevant corporate entities.  I understand that you did resign as director from Sim Fresh following the laying of the charges.  You are involved in the business, but you are not managing in any way any of the corporate entities.  There is no suggestion that you will be deprived of income or will suffer financial hardship or that the business will suffer as a result of your disqualification.  

[9] See p.142 depositions.

48It is also noted by the court, in the event of disqualification, you can, under s.206G of the Corporations Act 2001 (Cth), make application to the Federal or Supreme Court for leave to manage a corporation during a period of disqualification.

49In formulating the appropriate sentence, the Commonwealth prosecutor,
Mr Darby, was unable to provide the court with any intermediate appellate decisions to be relied upon as comparable cases and I am under the belief that there are no such appellate decisions, or first instance decisions, available.

Disposition

50Ultimately, Mr Darby submitted that a fine with conviction was the appropriate sentencing disposition in this matter.  This was not ultimately disputed by your counsel, Mr Gunn.

51Having regard to the objective seriousness of the offending and to mark the need for the court to emphasise general deterrence and denunciation, I consider that a monetary penalty of some significance is required.  Mr Gunn submitted that you have the capacity to pay a fine.

52Mr Darby confirmed that the court may impose an aggregate fine that does not exceed the sum of the maximum fines that could be imposed in respect of each of the offending.  And as I said earlier, the maximum fines that can be imposed total $194,000.

Charge	Dates	Maximum Penalty (Penalty Units)	Penalty Unit Value	Maximum Fine $
1	18 June 2012 to 4 November 2012	120	$110	$13,200
2	18 June 2012 to 4 November 2012	120	$110	$13,200
3	18 June 2012 to 28 August 2012	120	$110	$13,200
4	18 September 2012 to 18 October 2012	120	$110	$13,200
5	21 October 2014 to 13 December 2014	120	$170	$20,400
6	5 November 2012 to 31 May 2013	120	$110	$13,200
7	1 June 2013 to 17 May 2016	120	$110	$13,200
8	5 November 2012 to 31 May 2013	120	$110	$13,200
9	1 June 2013 to 17 May 2016	120	$170	$20,400
10	1 February 2013 to 31 May 2013	120	$170	$20,400
11	1 June 2013 to 17 May 2016	120	$170	$20,400
12	14 December 2014 to 17 May 2016	120	$170	$20,400
Total:				$194,000

53Could you please stand Mr Simonetta? 

54In respect to each of the 12 charges on the indictment, convictions will be recorded and an aggregate fine of $100,000 will be imposed.  That is the order of the court. 

55I do not think there were any ancillary orders, were there?

56MR DARBY:  No.

57HER HONOUR:  Is this the sort of case where a stay is ordinarily granted,
Mr Darby?

58MR DARBY:  Well, it is a large fine so ‑ ‑ ‑ ‑

59HER HONOUR:  Do you seek a stay?

60MR DARBY:  I would have no issue with a stay but it is really a matter ‑ ‑ ‑ ‑

61HER HONOUR:  Mr Locke?

62MR LOCKE:  I would have to probably defer to my friend, Mr Gunn, if he wants to make any submissions on that.

63MR GUNN:  Well, I think a stay of some period would be appreciated, Your Honour.  Just for the ‑ ‑ ‑ 

64HER HONOUR:  All right. 

65MR LOCKE:  I will seek some instructions, Your Honour.

66HER HONOUR:  Get some instructions.  All right?  Mr Locke?

67MR LOCKE:  I am instructed that the funds can be paid relatively immediately.

68HER HONOUR:  Right.

69MR LOCKE:  But I will probably ask for maybe a month just ensure ‑ ‑ ‑ 

70HER HONOUR:  I will give you a stay of three months given the time of the year.

71MR LOCKE:  Thank you.

72HER HONOUR:  A stay of three months will be granted in respect to payment of the fine.  So that concludes that matter.

73MR DARBY:  Thank you, Your Honour. 

74HER HONOUR:  Thank you.

75MR LOCKE:  As the court pleases.

76HER HONOUR:  Thank you.   Mr Simonetta can be allowed to leave the dock.  All right.  We will stand down.

‑ ‑ ‑ ‑

Section 245AC of the Migration Act 1958 was repealed and replaced with a new s.245AC, effective

1 June 2013.  Accordingly, Charges 1, 2, 3, and 4 are charged under the old offence provision, whilst Charge 5 is charged under the new offence provision.