R v Zhang

[2020] VCC 1366

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00227

THE QUEEN

v

ZHICHEN ZHANG

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2020
DATE OF SENTENCE:	31 August 2020
CASE MAY BE CITED AS:	R v Zhang
MEDIUM NEUTRAL CITATION:	[2020] VCC 1366

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. James	Commonwealth Director of Public Prosecutions
For the Accused	Ms J. McGarvie	Paul Vale Criminal Law

HER HONOUR:

1Zhichen Zhang, on 27 July 2018, a shipping container from China arrived by sea at the Port of Melbourne, to be delivered to a consignee at an address in Blackburn.  The contents of the consignment were declared to be ‘ceramic tiles’ but, when inspected, anomalies were found and the container was x-rayed by the Australian Border Force (ABF).

2Upon inspection it was seen to contain 20 pallets of stacked tiles, which, when deconstructed, were found to have been hollowed out.  Within the cavities were cartons and loose packets of a total of 762,800 ‘Double Happiness’ cigarettes.

3The cigarettes had not been subject to collection of the applicable customs duty (which, at the time of import, was set at $0.71046 per stick).  That means that duty on the imported goods, the total revenue payable but not paid in respect of those smuggled in goods, was just under $600,000; $596,132.76.

4ABF members removed the entire contents of the consignment and released what was then an empty container for delivery to the consignee. The importation was an elaborate and sophisticated operation. The cigarettes had been concealed in those stacks of specially hollowed out tiles. The Blackburn address to which the consignment was addressed was occupied by a tile business but it, on the materials before me, did not have anything to do with the importation of the cigarettes concealed in the shipment of the tiles and the name of the consignee was not the name of the operator of the business at that address.

5When the delivery driver arrived at the Blackburn address on 3 August 2018, he was approached by a man who directed him to deliver the container to a storage unit in Knoxfield.  He told the driver that had to be done because there was not enough room to unload the consignment at the Blackburn address.

6The storage unit at Knoxfield, to which the driver was directed, had been rented by you a week before the shipment arrived in Australia. You had used a false name, produced a Chinese driver’s licence in that name, had given a false address and a phone number.

7When the driver arrived with the container at the storage unit at Knoxfield, you were one of four men waiting there to unload it.  However, when the container was opened, it was empty.

8Seven weeks later, on 25 September 2018, you were arrested when ABF officers executed a search warrant under the Customs Act 1901 (Cth) at your home address in Box Hill South.

9You were interviewed and you admitted leasing the storage unit in Knoxfield and being present at it for the purposes of unloading the cigarettes.  You said that you had leased the storage unit and you went there on 3 August for the purpose of unpacking the smuggled cigarettes at the request of a 'friend'. You said his name was James. You said you had been offered $500 to unload the cigarettes and had been paid $100 for your time when it was discovered the container was empty.

10It is these circumstances that give rise to your plea of guilty to the charge of attempting, on 3 August 2018, to possess tobacco products knowing they were imported with intent to defraud the revenue.

11Although this is a single day charge, your participation on that date is, it is acknowledged, to be seen in the context of your conduct in arranging for the leasing of the storage unit and use of the false name and with the false identification details two weeks earlier.

12The charge to which you have pleaded guilty was introduced by the Customs Amendment (Smuggled Tobacco) Act2012 (Cth) and carries a maximum term of imprisonment of 10 years. As the prosecution summary sets out, the charge was introduced as part of a package of measures to reduce the incidence of smoking in Australia. Smuggled tobacco products undermine that objective, making cheap tobacco available in the community and evading government inspection, testing and control. Having said that, as the authorities make clear, this offence is an offence against the revenue and, in accordance with sentencing principles, it must be viewed in the context of taxation and other similar revenue offences. I must take guidance from the sentences imposed in such matters.

13Offences against the revenue generally require general deterrence to be given significant, if not paramount weight.  On the material before me, it is clear that you were not the principal or organiser of this importation and you fall to be sentenced as what I described in the course of submissions as a mercenary.

14That is, you were prepared to engage in conduct which facilitated the importation of cigarettes into Australia, evading duty, and thereby allowing them to be on sold into the Australian market.  Smuggled cigarettes can be sold more cheaply than those that are subject to duty and can be released into the market without, although this is somewhat ironic given the known harm from cigarettes, any of the appropriate health and safety measures designed to ensure that the harm already flowing from smoking tobacco is not compounded by selling adulterated cigarettes.

15Although you are not a principal, it is clear that those who assist and facilitate the importation and movement of smuggled goods play an essential role in the importation and supply chain.  Without willing labourers, enablers and facilitators the schemes devised by the principals to import tobacco and avoid paying duty on it cannot be brought to fruition.

16And those who play such a role of labourer, enabler or facilitator for reward, that is motivated by greed or means of making easy money, must expect that, when detected, their punishment should ordinarily reflect the general sentencing principles applicable to importation cases, that is by giving considerable weight to general deterrence.  And on the material before me, your case was indeed one motivated by greed or making a lot of money.  It was not suggested that you were in desperate financial circumstances, that you were blackmailed, coerced or manipulated by people to whom you were indebted and who had presented you with unconscionable choices.

17Although there have been few cases involving sentencing for importation or attempted importation of tobacco with an intent to evade revenue since 2012 when the amendment came into effect, it is clear and was accepted in the course of the plea, that generally participants, whether they be principals or assistants, will be facing a term of imprisonment.

18It was Ms McGarvie's submission that the weight to be given to general deterrence in this case should be tempered.  She submitted you should not be sentenced to a term of imprisonment or, if imprisonment was the only sentencing option properly open in the circumstances, it should be required not to be immediately served, or further in the alternative, that any such sentence requiring immediate imprisonment should be a short, sharp sentence before release on recognisance.

19What were the matters relied upon by Ms McGarvie in support of those submissions?

20You were 23 at the time and are now 25.  You come before the court as a man without previous convictions and who, in the two years since your participation in this offending, have not been charged with or dealt with for any further offending.

21You came to Australia from Shanghai as a 10 year-old. Your parents left China in order to give you and your younger brother better education and opportunities in Australia and a hope of a better life.

22You are an Australian citizen and have done, in effect, the bulk of your education since mid-primary school at age 10 here and have lived over half of your life here.

23Ms McGarvie called in aid your good character and your youth.  She submitted that you had excellent prospects for rehabilitation. She relied on the extensive admissions that you made in respect of your involvement when questioned.  Ms McGarvie submitted that that, together with your plea of guilty, which was entered at a relatively early stage, that is, after committal and as a result of negotiations resulting in the withdrawal of another charge, indicated remorse and reduced the need for weight to be given to specific deterrence.  In addition, she noted the considerable delay in the investigation and prosecution of this matter.  I note that the delay is not attributable to you and I am satisfied that it has caused additional and unnecessary hardship to you before the matters could be resolved.

24The effect of the COVID-19 pandemic has had a number of consequences which Ms McGarvie called in aid and which properly can be called in aid in reducing the sentence otherwise appropriate.  Quarantine, lockdown restrictions and an inability to make your own decisions about how best to manage isolation would clearly add to the burden of imprisonment, which already would affect a youthful first offender and first-time prisoner.  And, but for your guilty plea and the time at which you entered it, you would have been able to count on a further period of liberty, at least until 2021 and maybe in these circumstances now even longer, because of the effect of COVID-19 on trials in this court and in this state.  But you did plead guilty at the time you did.  Against that background, Ms McGarvie submitted, and I accept, this evidences remorse and a preparedness to advance the interest of justice.  It also indicates taking responsibility for your own conduct.

25I accept the submissions made by Ms McGarvie, which I have summarised, with some qualifications.  First, as discussed with her in the course of the plea, the account that you gave both to investigators and on instructions to be put on the plea, shows a general engagement in unlawful or dishonest conduct over a period of months in 2018.  It may be properly characterised as grifting.  That is, being prepared to make easy money by a variety of means: by lending your name to other people so that they could own and drive vehicles that were not registered to them and therefore not traceable to them, importing or attempting to import cigarette products and then forfeiting the cigarettes rather than pay the duty, establishing a company to import furniture, which, as it turned out, was a means of importing or smuggling tobacco into Australia and perhaps even engaging in activities relating to calling a person your wife when, on the materials presented to me, you are not currently married or in a committed relationship with anybody.  In any event, what it shows is a person who, for a period of time, was prepared to make easy money by a variety of dishonest and perhaps unlawful means.

26You, therefore, in my view, do not come to be sentenced as a person who has led a blameless life but for one bad act or one bad decision.  This is an offence occurring in the context of a period of general bad behaviour.

27The second qualification is that I am not prepared to act on your word, unsupported by objective evidence, that you were indeed a hapless, frightened victim of the manipulation or threats of others, although that is the explanation for your involvement in the offence for which I come to sentence you.

28The account you gave was one where you were the hapless victim pushed around by a lot of people and were prepared to do things that were not too bad, like act as a front for somebody else's car registration in return for some money, but that you were too frightened of these people to be able to stop.  I just do not accept that without support.

29The third matter I have reservations about is this. At the age of 23, as you were at the time of the offending, you had lived independently from your parents for five years since leaving school. Indeed you had lived in a different state from them, having left Adelaide to come to Melbourne to go to university at Monash.  I do not consider that that entitles you to the same sort of allowance to youthfulness that an 18 year-old lacking parental guidance and support would attract.  I am prepared to accept, on the materials presented to me, that you were, at the time of offending, an immature young man, who was resentful of the efforts that your parents had made to give you a better life and to encourage you to fulfil your potential.  I am satisfied that you made calculated decisions to make easy money, rather than commit yourself and undergo the hard work of studying to complete a degree or to work the sort of hours that you needed to provide properly for yourself, both in the present and the future.

30A letter of apology written by you was tendered.  It has, in my view, a strong flavour of self-pity and resentment. Having said that, I accept that you have now returned to study.  You have now been prepared to accept the guidance of your parents and you have now returned to gainful employment.  I am satisfied that you have the capacity, and the support of your parents, if you choose to avail yourself of it, to accept their guidance, to engage in study and meaningful employment and to continue to take responsibility for your conduct.

31It is those last matters, coupled with your plea of guilty, that in my view would support a finding that immaturity contributed to your offending and therefore support my concluding that I should give weight to encouraging your rehabilitation, which these last matters show is already underway.

32Although general deterrence is an important sentencing consideration for this offence for the reasons that I have identified, and although, as Ms James properly identified, good character generally carries less weight in cases of defrauding the revenue, in this case I consider that the needs of general deterrence can be met, whilst giving proper weight to these other considerations, by recording a conviction and imposing a term of imprisonment, but releasing you forthwith on a recognisance release order.  I do not consider it necessary for the purposes of general deterrence, or in the context of this offending, to impose a term of imprisonment that requires you to immediately serve a term.

33It is also implicit in what I have said that I consider no sentence other than one involving a term of imprisonment is appropriate to reflect the overall seriousness of the offending and the conscious decision you made to involve yourself in it.  And I say that notwithstanding the limited role that you played and the fact that it is clear that you are not a principal and, on the material before me, stood to gain no more than ‘fee for service’ for the menial services that you undertook: renting the storage container in a false name and being prepared to assist in the unpacking and against the context to which I have already briefly adverted of involvement and assisting with an unpacking of previous importations of smuggled cigarettes, therefore fixing you very clearly with the knowledge of the unlawfulness or illegality of what you were doing.

34I therefore propose to release you on a recognisance release order.  I propose to sentence you and record a conviction. That in my view properly reflects the seriousness of the offending and properly is to be taken into account as one means of imposing a sentence that meets the needs of general deterrence.  For a 25 year old, with no previous convictions, still completing his studies, to carry a conviction for such an offence is in my view a significant punishment, one which acts as a deterrent to you and to others like minded and is a punishment in itself.

35So, I propose to record a conviction and to sentence you to a term of imprisonment of 12 months.  I direct that you be released upon entering a recognisance to be of good behaviour, fixed in the amount of $1,000.00 for a period of 12 months.

36I also declare that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months and I would have directed that you serve a period of nine months before being released on recognisance to be of good behaviour.

37I therefore order your release under paragraph 21B of the Crimes Act, upon your giving security by recognisance of $1,000.00 to comply with the condition that you be of good behaviour for a period of 12 months.

38I have issued this order because you have been charged with a federal offence of attempting to possess tobacco products knowing the goods were imported with the intention of defrauding the revenue, contrary to s 11.1(1) of the Criminal Code (Cth) and s 233BABAD(2) of the Customs Act.  I have sentenced you to a term of 12 months' imprisonment and decided that you be released forthwith if you comply with the conditions of the order.

39Mr Zhang, let me explain to you the purpose and effect of this order.  It is a term of imprisonment of 12 months.  You are released immediately without being required to serve that term upon your promise, fixed by recognisance of $1,000.00 to be of good behaviour.  If you are not of good behaviour, whether by commission of another offence or by other means, then not only do you stand to forfeit the recognisance but you stand to be re-sentenced and for that period of 12 months' imprisonment to be taken into account in respect of that.

40So, if you fail without reasonable excuse to comply with the conditions of this order the recognisance will be cancelled and you will be sentenced to imprisonment.

41I must also explain to you that the order may be discharged or varied under the Crimes Act.

42Do you understand what I have explained to you?  Could you please take your microphone off mute, Mr Zhang.

43OFFENDER:  Yeah.

44HER HONOUR:  Do you understand what I have explained?

45OFFENDER:  Yes.

46HER HONOUR:  Do you agree to be bound in accordance with this order?

47OFFENDER:  Yes.

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