The Chief Executive Officer of the Australian Customs Service v Nair - [2007] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE v NAIR
[2007] SASC 183
Judgment of The Honourable Justice Sulan
23 May 2007
CUSTOMS AND EXCISE - PENAL PROVISIONS OF CUSTOMS ACT - OFFENCES - PROHIBITED IMPORTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - TYPES OF ORDER ON SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Appeal against sentence - respondent pleaded guilty to recklessly making a false statement to a Customs officer, contrary to Customs Act 1901 (Cth) s 234(1)(d)(i), and to importing prohibited imports, contrary to Customs Act 1901 s 233(1)(b) - Magistrate proceeded under Crimes Act 1914 (Cth) s 19B(1) - Magistrate discharged the respondent without proceeding to conviction, for either offence, upon respondent entering into a bond to be of good behaviour in the sum of $3,000 - Held: Appeal dismissed.

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - MATTERS RELATING TO DECISION
Whether Magistrate failed to provide adequate reasons for his decision - Held: Magistrate's reasons were adequate - a magistrate's reasons should be sufficiently detailed to enable an appellate court to discern the factual basis upon which the magistrate determined sentence, however, inadequate reasons, alone, are not a sufficient basis to set aside sentence.

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Consideration of Crimes Act 1914 s 19B - whether the Magistrate erred in exercising the discretion under s 19B - Held: Magistrate did not err in exercising the s 19B discretion - Magistrate determined sentence having regard to the respondent's character and antecedents and the seriousness of the offences, in accordance with Crimes Act 1914 s 16A and s 19B.
Customs Act 1901 (Cth) s 233(1)(b), s 234(1)(d)(i); Crimes Act 1914 (Cth) s 16A, s 19B, referred to.
Cobiac v Liddy (1969-1970) 119 CLR 257; Leech v McCall (1986) 41 SASR 96; Tame v Fingleton (1974) 8 SASR 507, applied.

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE v NAIR
[2007] SASC 183
Magistrates Appeal

SULAN J: The respondent, Christopher Jonathan Nair, was charged with intentionally making a false statement to an officer of the Australian Customs Service, or being reckless as to the fact that the statement was false and misleading in a material particular, contrary to s 234(1)(d)(i) of the Customs Act 1901 (Cth). He also pleaded guilty to importing a prohibited import, namely five butterfly knives and one concealed blade knife, contrary to s 233(1)(b).
The matter proceeded in the Magistrates Court. Consequently, the maximum penalty for each offence was a fine of $22,000.
The facts
On 15 January 2006, Mr Nair arrived at the Adelaide International Airport on a Malaysian Airlines flight from Malaysia. He is a Malaysian citizen residing permanently in Australia and was returning after a family visit. He handed his incoming passenger card to a Customs officer. The respondent had completed the card, which included a response that he was not carrying “goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind or illicit drugs”. The respondent crossed the box marked “No”.
Mr Nair was carrying in his baggage five butterfly knives and one concealed blade knife. A butterfly knife and a blade knife are prohibited imports. He agreed that the statement was false and his attempt to import the goods was an offence.
Mr Nair disputed the basis of the pleas as alleged by the prosecution. He contended that he had made a verbal declaration to a Customs officer after he had completed the incoming passenger card. It was the prosecution case that, shortly prior to his bags being searched, he was asked whether he had anything sharp in his bags. It was then that he declared the goods. At no stage prior to it becoming obvious to the respondent that his bags were about to be searched did he make any declaration.
Three Customs officers gave evidence that Mr Nair did not declare the goods to them. The respondent gave evidence that he spoke to an unidentified Customs officer and informed that officer of the contents of his bag. It was not disputed that the respondent made a declaration at the time that his bags were taken aside for inspection.
The Magistrate’s findings
The Magistrate accepted the evidence of the Customs officers. He concluded that the respondent had tried to construct his evidence. The Magistrate found that the respondent packed his luggage at the point of embarkation in Malaysia, that he was the one who put the knives in his cargo luggage and that it must have been in his contemplation that the knives were of a type that could not go into hand luggage.
The Magistrate concluded that when the respondent filled out the incoming passenger card, he must have been reckless when he ticked the box saying he did not have any weapons. The Magistrate concluded that the respondent volunteered the information to the Customs officer once he realised his bags were about to be inspected.
The Magistrate found that there was no earlier statement to a Customs officer indicating that the respondent might have made a mistake and it was not until he realised that a search of his baggage was imminent that he volunteered the information.
The Magistrate considered it was an appropriate matter for him to proceed under s 19B(1) of the Crimes Act 1914 (Cth) (“the Act”). He did not record a conviction and discharged the respondent upon him entering into a bond to be of good behaviour in the sum of $3000. The respondent was ordered to pay costs of $1000.
The Chief Executive Officer of Customs has appealed. It is contended, on his behalf, that the sentencing Magistrate failed to provide adequate reasons for the sentence and that he erred in proceeding to discharge the defendant without conviction.
Adequate reasons
It is convenient, at the outset, to dispose of the complaint that the Magistrate failed to provide adequate reasons. It is important that a magistrate state publicly his reasons for arriving at a particular decision. A defendant is entitled to know the basis upon which a penalty has been imposed. This is particularly so if a sentence of imprisonment is imposed. Further, it is important to ensure that an appellate court understands the reasoning of a magistrate when a magistrate exercises a discretion in sentencing. In cases where a magistrate decides to release a defendant upon a bond, the Crown and the public have a legitimate interest in knowing and understanding why it is that he or she has decided to exercise leniency. That does not mean that reasons must be lengthy, nor is a magistrate required to set out every submission that has been made and the reasons for rejecting or accepting it. What is required is that the magistrate explain the reasons upon which he or she arrives at the decision so that the defendant, the Crown, the public and an appellate court, in the event of an appeal, will understand the basis upon which the decision was made. The reasons should be sufficiently detailed to enable an appeal court to understand the factual basis upon which the sentencing court has proceeded and the matters that were relevant to the magistrate in setting the penalty. Courts of appeal should not be left having to make assumptions or being uncertain about what matters influenced the magistrate in arriving at a decision.[1]
[1] See Leech v McCall (1986) 41 SASR 96, 99; Tame v Fingleton (1974) 8 SASR 507, 509-10.
The failure of a magistrate to give adequate reasons will not, of itself, be a ground to set aside a sentence. If the sentence imposed was appropriate, the court will not interfere. However, as observed by Cox J in Leech v McCall, a sentence has a much better chance of surviving an appeal if the court that imposed it has taken the trouble to explain the grounds upon which it acted.[2]
[2] (1986) 41 SASR 96, 100.
Although the Magistrate did not give extensive reasons for his decision and, in the course of his reasons, acknowledged that he had taken into account “other matters” upon which he failed to elaborate, I consider there was sufficient detail in his reasons to reject the contention of the appellant that the appeal should be allowed on this ground.
Discussion
Section 16A of the Act requires the court to have regard to a number of matters in determining sentence. In general, they relate to the nature and circumstances of the offence, the circumstances of the offender, factors relevant to the victim and to restitution.
Section 19B of the Act empowers the court to discharge a defendant without proceeding to a conviction and to require a defendant to enter into a bond on conditions specified by the court.
In considering s 19B, the approach is a two-stage approach. First, the court must have regard to the character, antecedents, age, health or mental condition of the person in deciding whether the discretion under s 19B has been enlivened. Other factors which may enliven the discretion, such as the trivial nature of the offence or other extenuating circumstances, were not relevant in this case. It was conceded by counsel for the respondent that the breach could not be said to have been trivial, nor were there extenuating circumstances.
The Magistrate acknowledged the breaches of the Act were serious. He observed that people who commit these offences are often of good character. The Magistrate concluded:
There is a two stage process. In relation to Mr Nair, he is a person of excellent prior character. He was an outstanding graduate from university. He has been accepted into one of the top firms in his field. He has very good prospects in the field of accounting (I use the career description generally), and a conviction will be a significant encumbrance to him in the future career he was [sic] chosen. In relation to the offence itself, I accept that he purchased these knives as gifts. He goes to and from Malaysia, with which he has a connection, on relatively regular occasions. He likes to bring gifts back, as people do when they go overseas, for friends back in Adelaide. These knives were relatively cheap, some A$10 or so and they seemed to be an ideal gift for him. He had in mind that there were some risks that this would be a matter that he would raise when he came back and he obviously failed to do so in the terms and circumstances decided above. It puts the offence at the lower end of the scale. He is not attempting to import weapons for any criminal purpose, but some curios to give as gifts, cheap gifts, to his mates. I find criteria [sic] one is satisfied.[3]
[3] Judgment of Dr A.J. Cannon A/CM, 19 December 2006, p 2 [8].
The Magistrate was correct in concluding that the discretion was enlivened. He then considered whether this was an appropriate case for the exercise of his discretion. He concluded that the respondent was of excellent character, that he was an outstanding graduate, that he was employed in a leading professional practice in his field and that his future career opportunities were excellent. He concluded that the respondent’s motive in importing prohibited goods was primarily to give them as a gift. He observed that a conviction would have a very serious deleterious effect on Mr Nair’s future. These are all matters which are relevant to character and antecedents.
In Cobiac v Liddy,[4] Windeyer J discussed the meaning of antecedents:
… The word “antecedents” was said by Davidson J. in Re Stubbs, to be “an ambiguous word, which may refer either to previous history or to the parents of the offender and their conduct in his upbringing”. I would not say anything to suggest any restriction of the breadth of meaning of a word which is commonly used today by social workers and probation officers. As used in s. 4(1), it refers I think primarily to the offender’s previous history and past record. It is a word which it seems came into use in English in this sense from its use in French law. A person’s antecedents in that sense may tell for or against him. In R. v Vallet, Lord Goddard C.J. said:
“. . . the word ‘antecedents’ is as wide as can be conceived. On considering the appellant’s antecedents it was found that she was a married woman living with a man who was not her husband, that she had been put in a position of trust, and that she had used the information she had so obtained to carry out persistent and wholesale thefts.”
If bad behaviour of that kind can count for ill as a person’s antecedents, I cannot see that the present offender’s good behaviour to his sister should not count in his favour as among his antecedents.[5]
[4] (1969-1970) 119 CLR 257.
[5] (1969-1970) 119 CLR 257, 276-7 (Endnotes omitted).
As observed, the word “antecedents” includes all aspects, favourable and unfavourable, of an offender’s background and past life, including his or her personal, family, social and employment circumstances. It can include a person’s current way of life and his or her interaction with the lives and welfare of others. Any matters proximate to the offender’s character, conduct or way of life can relate to antecedents. If a person has enjoyed the confidence of an employer and has worked hard to achieve a responsible position, those factors are relevant to that person’s antecedents.
Counsel for the appellant submitted that the offences were serious. It was submitted that general deterrence has primary importance because offences of this nature are often committed by persons with no prior convictions and are difficult to detect.
The Magistrate had regard to the seriousness of the offences. He regarded the breaches at the lower end of seriousness. He observed that the goods were not being imported for a criminal purpose, they were inexpensive and the reason for the appellant bringing them in was to give them away as gifts. Counsel for the appellant submitted that those matters were not relevant. I disagree. The Magistrate was entitled to have regard to them. Relevant matters when assessing a person’s culpability will usually include their motive, whether they were to profit from the offence and whether they are truly contrite and likely to re-offend. In every case, the personal circumstances of offenders vary. If it has been established that s 19B is enlivened, it is a matter for the discretion.
The Magistrate relied on the good character and antecedents of the respondent, together with his assessment of the seriousness of the breach. It was for the Magistrate to weigh all competing factors. This Court should not substitute its views for those of the Magistrate. Before this Court will interfere, an error must be demonstrated. Again, the observations of Windeyer J in Cobiac v Liddy are apposite:
… The question is not whether any of us in this Court, or any of their Honours in the Supreme Court, would himself have taken the course that the magistrate took. The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all.[6]
[6] (1969-1970) 119 CLR 257, 275.
Conclusion
The Magistrate was correct to conclude that the conditions to enliven the discretion had been met. He exercised his discretion, having regard to relevant matters. He did not rely on good character alone. There were other factors relating to the respondent’s antecedents upon which the Magistrate relied.
No error has been demonstrated.
I would dismiss the appeal.