R v Sutherland

[2023] NSWDC 21

District Court

New South Wales

Medium Neutral Citation:

R v Liu [2023] NSWDC 21

Hearing dates:

09 February 2023

Date of orders:

09 February 2023

Decision date:

09 February 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1  The offender is convicted and a 25% discount applies.
2  I impose a term of imprisonment of 13 months to be served by way of an Intensive Corrections Order to date from today.

Catchwords:

CRIME — Commonwealth offences

Legislation Cited:

Customs Act 1901 (Cth)

Crimes Act 1914(Cth)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Dongshu Liu (Offender)

Representation:

Counsel:
Ms C Akthar (Crown)
Mr A Barker (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Cathay Lawyers (Offender)

File Number(s):

2021/133861

Publication restriction:

None

JUDGMENT

1. Dongshu Liu (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

1. import tobacco products with intent to defraud revenue, contrary to s 233BABAD(1) Customs Act 1901 (Cth). The maximum penalty for the offence is 10 years imprisonment and/or a fine of five times the duty payable on the goods (sequence 1); and

2. possess tobacco products with knowledge of the intent to defraud the revenue contrary to s 233BABAD(2) Customs Act 1901 (Cth). The maximum penalty for the offence is 10 years imprisonment and/or a fine of five times the duty payable on the goods (sequence 6).

Approach to Sentencing

2. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

3. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. The offender has entered a plea of guilty. The offender’s plea has saved the need for witnesses to be called at trial, and the utilitarian value of the plea is high. I am satisfied that the offender’s plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

6. I have taken into account the principles set out by the appellate courts as relevant to the principal offence, including:

1. an offence against the revenue is a taxation offence and guidance from those matters is relevant;

2. offences against the revenue are not victimless. They undermine the taxation system and the ability of the government to raise revenue in a fair and accountable way, deliver essential services and impose a burden on citizens who comply with their taxation obligations;

3. tobacco offences involving defrauding the revenue are prevalent and general deterrence is of critical importance. Significant profit can be made and the offences are difficult to detect.

Facts

7. The parties presented an Agreed Statement of Facts that can be summarised as follows.

8. On 12 May 2021 the offender was arrested in possession of post office box keys for particular post office boxes located at North Parramatta and Bexley North. Police located another 26 post office box keys in the offender’s car, including for a particular post office box at Toongabbie East.

9. The offender participated in a record of interview and made the following admissions. The post office box at North Parramatta belonged to a friend who is no longer in country. He began collecting parcels from the post office boxes and came to realise over time that they contained tobacco sent from China. He was the only person that collected parcels from the North Parramatta post office box. From about April 2021 he collected parcels expecting them to contain tobacco. He took the parcels to his residence where he would divide it up and sell it to people on the construction sites where he worked. The offender would call his friend and ask him to send more parcels of tobacco. The offender did not pay tax on the tobacco that he received. The parcels were addressed to the offender, but the post office box was rented in another person’s name. The parcels misdescribed the contents.

Sequence 1

10. On 21 April 2021 four parcels arrived at the post office box at North Parramatta addressed to the offender. Police seized and examined the parcels, finding that they contained 6.9 kg of tobacco.

11. Between 28 April 2021 and 30 April 2021 a further 33 parcels arrived at the North Parramatta post office box. The offender attended the post office on 5 May 2021 and attempted to collect the parcels, producing his own identification. Police subsequently seized and examined the parcels which contained 53.94 kg of tobacco.

12. On 7 May 2021 police seized four parcels from the Australian Border Force addressed to the offender at the post office box in Toongabbie East. The parcels contained 3.7 kg of loose tobacco and 200 cigarette sticks of tobacco.

13. On 1 June 2021 a further six parcels were delivered to the North Parramatta post office box. Police seized and examined the parcels and found them to contain 10.75 kg of tobacco.

Sequence 6

14. On 12 May 2021 the offender attended the North Parramatta post office box and collected five parcels addressed to him and placed them in his car. The parcels contained 9.17 kg of tobacco. After placing the parcels in his car the offender drove away from the post office before being intercepted and arrested by the police.

15. The duty evaded on the combined total of 200 cigarettes and 88.11 kg of loose tobacco, was $139,132.30.

16. The offender is a Chinese citizen in Australia on a bridging Visa. He is currently 54 years of age and was 53 at the time of committing the offences. The offender was unemployed at the time of his arrest.

17. The offender was in custody from 12 May 2021 until he was released on bail on 4 October 2022 (a total of 511 days).

Sentencing Assessment Report

18. The court received a Sentencing Assessment Report dated 1 November 2022, the content of which can be summarised as follows.

19. Following his release from custody the offender was employed as a labourer in a stone factory. The offender accepted responsibility for his actions and that the offences were serious. He reported experiencing financial difficulty at the time of the offences. His partner had lost her job and he was having difficulty meeting basic living expenses.

20. He expressed regret for his actions and understood the impact they had himself and his family. He was willing to engage in interventions and undertake community service work.

21. The offender was assessed as a low risk of re-offending, suitable for supervision and community service work. Community Corrections could provide up to 14 hours community service work per month through its Bankstown office.

The Offender’s Case on Sentence

22. The offender tendered a bundle of Justice Health records, relating to his physical health and medical issues he experienced whilst in custody.

Consideration

The nature and circumstances of the offences

23. The offences were not sophisticated. The offender contacted his friend to send the tobacco from China. The offender had keys to a number of post office boxes which were used by the offender to import tobacco. The North Parramatta post office box was rented in another person’s name but the parcels were addressed to the offender. The offender was solely responsible for the importation operation in Australia.

24. The offences were committed for financial gain. The total amount of the duty evaded was significant.

25. I have taken into account the maximum penalties for the offences.

Contrition

26. The offender expressed remorse to the author of the SAR. His plea of guilty also indicates remorse. He made full admissions on his arrest.

Deterrence

27. General deterrence is an important consideration for the reasons I have already articulated.

28. There is also a need for specific deterrence.

Character, antecedents, age, physical and mental condition

29. The offender is presently 54 years of age. At the time of the offences he had no criminal history in Australia and was a person of good character.

30. The offender has suffered a number of medical conditions that required surgical treatment whilst he was in custody which made his time in custody more difficult. He requires ongoing treatment and monitoring for these conditions.

31. I also note that he contracted COVID-19 whilst he was in custody. I have taken into account the conditions imposed on the offender in custody to deal with the impacts of COVID-19 and I am satisfied that his time in custody was more difficult by reference to those conditions.

Prospects of rehabilitation

32. The offender has good prospects of rehabilitation. He has the support of his partner. He is now gainfully employed. I am satisfied that he got involved in the offending conduct because of his financial situation and that the circumstances that led to the offences are unlikely to recur. I am also satisfied that he is of an age and state of physical health that makes him less likely to engage in criminal conduct.

Comparable sentences

33. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

34. I have taken into account the time that the offender spent in custody.

Penalty

35. I have had regard to s 17A Crimes Act 1914 and I am satisfied after considering all other available sentences that no other sentence other than imprisonment is appropriate, for the reasons I have set out in this judgment.

36. The offender is convicted.

37. This is an appropriate case to impose an aggregate term of imprisonment pursuant to s 54A Crimes (Sentencing Procedure) Act 1999. The terms of I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. For sequence 001 – 2 years

2. For sequence 006 – 12 months

38. The appropriate aggregate term of imprisonment of 2 years and 6 months.

39. I have had regard to s 66 Crimes (Sentencing Procedure) Act and consider that this is an appropriate case to order that the sentence be served by way of an Intensive Corrections Order for the following reasons.

40. The offender presents a low risk of re-offending and has already served a substantial period of time in custody and his rehabilitation should be furthered by a period of time under supervision.

41. Since an ICO can only be imposed from today I will reduce the term of imprisonment by the time already served which I will round up to 17 months. Pursuant to s 7(i) Crimes (Sentencing Procedure) Act, I impose a term of imprisonment of 13 months to date from today, 9 February 2023.

42. The offender must report to the Community Corrections Office at Bankstown on or before 4pm on 16.2.23.

43. The standard conditions of the order apply: ss 73(1), 73(2)

(a)    must not commit any offence; and

(b)    must submit to supervision by a Community Corrections Officer.

44. The following additional condition applies:

(a)    a community service work condition requiring the performance of community service work for 50 hours.

45. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

46. If the order is revoked, the offender may be required to serve all or some of the period of his sentence in full time custody.

**********

Decision last updated: 10 February 2023