R v Tieu

[2019] NSWDC 485

District Court

New South Wales

Medium Neutral Citation:	R v Tieu [2019] NSWDC 485
Hearing dates:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment sentence of 2 years - to be served by way of an Intensive Correction Order
Catchwords:	CRIME - SENTENCE - posses tobacco products knowing they had been imported with intent to defraud the revenue.
Legislation Cited:	Customs Act 1901 - s 233BABAD(2); Criminal Code Act 1995 - s 400.7(1)
Category:	Sentence
Parties:	Regina (Crown) Hong Ve Tieu
Representation:	Ms Lewer (Crown Prosecutor Commonwealth) Mr Jones (Counsel for the offender)
File Number(s):	2017/241035
Publication restriction:	Nil

Judgment

1. Hong Ve Tieu, you appear for sentence today in relation to one offence, that is, possessing tobacco products knowing that they had been imported with the intent to defraud the revenue.

2. This involves a contravention of s 233BABAD(2) of the Customs Act. The maximum penalty for the offence is 10 years imprisonment.

3. In addition to that principal offence, you have asked me to take into account one matter on a s 16BA schedule, namely dealing with money being the proceeds of crime where the value of that money is greater than $1,000.

4. The facts surrounding your offending are contained in an agreed statement of facts. Slightly recast by me as to style but not substance, the facts may be summarised as follows.

5. As at August 2017, you were the owner of a cigarette tobacconist shop in Marrickville. Associated with that shop were certain warehouse premises in Chipping Norton.

6. Somehow or other, you became associated with an organised crime group run by the Tran family.

7. The activity of that organised crime group became the subject of the attention of both the Australian Federal Police and the New South Wales Police.

8. Part (at least) of the Tran family’s criminal activities involved the unlawful importation of illicit tobacco products into Australia and for the sale of those illegal tobacco products through people such as you without proper duty being paid on the tobacco to the Commonwealth Government.

9. As part of their investigations, the police (both the Commonwealth and the State Police) discovered that the Tran family, in the period between September 2016 to July 2017, had smuggled over seven and a half million illicit cigarettes into Australia. Through a variety of outlets, those cigarettes made their way into the Australian community without the Commonwealth receiving the due amount of tax.

10. Your activities became the subject of the police investigation.

11. In August 2017, search warrants were executed at your shop and at the warehouse. At the warehouse, over half a million illicit cigarettes were found. The duty or the tax which was not paid on them was over $330,000.

12. At that warehouse, in addition to those cigarettes, $2,200 was found in cash. It is that money that relates to the s 16BA schedule. By having regard to the nature of the matter on the schedule, it will not result in any meaningful or significant increase in the sentence for the principal offence, but it will result in a reparation order being made.

13. When the warrant was executed at your shop, almost 10,000 illegal cigarettes were found. The tax or the duty which was not paid on them was a little over $6,000.

14. So, in total, Mr Tieu, the cigarettes that were found on the execution of those warrants resulted in the Commonwealth Government not receiving almost $350,000 in tax.

15. Your illegal activity in that regard was not an isolated incident. Your criminal activities had been engaged in for over 18 months.

16. In terms of its objective seriousness for an offence of its kind, it is somewhere equidistant between the middle and the bottom of the range of objective seriousness.

17. You were born in Cambodia. When you were 5 years’ old, you and your family went through the horror of the Khmer Rouge regime. As a result of what you saw as a little child, you have suffered from post-traumatic stress disorder -not only because of what you saw, but how you escaped.

18. Ultimately, when you were 13, you came to this country, having come from a refugee camp in Thailand.

19. You went to Cabramatta High School. Somewhat surprisingly to me you were extensively bullied at that high school, even though the Court is aware that, at the time you would have been there, there would have been many other students from your background at the school. But nevertheless you were extensively bullied.

20. The combined effect of what you saw as a child and what you endured at high school means that you have post-traumatic stress disorder which has not been treated.

21. I accept the evidence of your psychologist that:

“The ongoing stress of post-traumatic stress disorder and its intrusion of symptoms on the conscious mind weaken a person’s resolve and allow poor decision making and many crimes are committed from this mental state with persons who otherwise lead exemplary lives”.    

22. That explains but, does not excuse, your conduct.

23. You left school at year 11 and thereafter you have worked hard. From the age of 20 you worked in a butcher’s business. It was your father’s business. But in 2012 you sustained an injury to your arms and that is when you went into the tobacconist business. But you worked hard there too.

24. You have had two substantive relationships and you have four children from both of those relationships, two of whom are still at school.

25. You have no criminal history of any kind.

26. You entered a plea of guilty at the earliest opportunity and that has facilitated the interests of justice and will result in a significant discount on the sentence.

27. You did not give evidence in the course of the sentence hearing. But on this occasion I accept that your expression of remorse (through the psychologist’s report was) genuine.

28. I have formed the view that, provided you receive treatment for your post-traumatic stress disorder, your prospects of rehabilitation are good.

29. I was earlier referring to your background. It is one which is correctly described as a dysfunctional one within the meaning that the High Court has directed sentencing judges to take into account. Your moral culpability is thereby reduced. Because of that, there is some moderation on the application of the principle of general deterrence - that is, a sentence that will discourage others from what you did. But it still has some role to play.

30. Specific deterrence, that is setting a sentence that will deter from you offending, again is, however, fully engaged.

31. The offence that you committed is difficult to detect. The amount of money involved was significant and it was done over a significant period of time.

32. I am satisfied that no sentence other than a period of imprisonment is appropriate.

33. Except for your plea of guilty and the utilitarian value of your plea, the term of the sentence would have been 2 years and 8 months. But because of your plea of guilty, the term of the sentence is 2 years imprisonment.

34. The question Mr Tieu is: how is that term going to be served? I am satisfied that community safety will be more fully served by you serving that sentence by means of an intensive correction order.

35. There are two standard and mandatory conditions to any and every intensive correction order. The first is that the offender must not commit any further offences. The second is that he must submit to supervision by a community corrections officer.

36. In addition to those two mandatory conditions there must be at least one additional condition unless there are exceptionally circumstances, which is not this case.

37. There is an additional condition of the intensive correction order Mr Tieu that you perform 500 hours community service.

38. I also order as an additional condition, that you attend upon Mr Kirton, clinical psychologist, for the purpose of undertaking the treatment plan identified in exhibit 1 and that you continue to attend upon him for as long as he requires and that you fully accept and follow all treatment that he recommends.

39. In addition to the orders I have just made I make a reparation order in the amount of $2,200.

40. You are ordered to report to the officer-in-charge of the Liverpool Community Corrections no later than Monday 19 August 2019 at 11am.

41. The sentence of 2 years imprisonment by way of intensive correction order commences today.

42. Mr Tieu, if you fail to comply with the conditions of this order, sanctions maybe imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, the imposition of more stringent conditions or the revocation of the order. If the order is revoked, you may be required to serve some or the period of the sentence in fulltime custody.

Decision last updated: 11 September 2019