Tuncks v Chief Executive Officer of Customs - [2005] SASC 408

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TUNCKS v CHIEF EXECUTIVE OFFICER OF CUSTOMS
Judgment of The Honourable Justice White
18 November 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to importing a prohibited import contrary to s 233(1)(b) of the Customs Act - convicted and fined $2,500 - only brief reasons given by Magistrate in sentencing - discussion of need for magistrates to give adequate reasons - consideration of application of s 19B of Crimes Act 1914 (Cth) - sufficient weight to appellant's good character, prospects of rehabilitation and the particular circumstances of offending.
Held: that it is expedient to release appellant on probation without conviction - appeal allowed.
Customs Act 1901 (Cth), s 4AA, s 233, s 233AB, s 245; Crimes Act 1914 (Cth), s 19B; Criminal Law (Sentencing) Act 1988 (SA) s 9, referred to.
Tame v Fingleton (1974) 8 SASR 507; Felstead v Giersch (1976) 14 SASR 27; Shrubsole v Rodriguez (1978) 18 SASR 233; Leech v McCall (1986) 41 SASR 96; Wood v McDonald (1988) 46 SASR 570; Jennings v Department of Correctional Services [2003] SASC 299; Commissioner of Taxation v Baffsky [2001] NSWCCA 332, (2001) 192 ALR 92; Parente v The Commonwealth [2002] SASC 212, (2002) 220 LSJS 126; Vartzokas v Zanker (1989) 51 SASR 277; Budnjo v Police [2003] SASC 14, (2003) 225 LSJS 296; Yengi v Police [2002] SASC 220, applied.
Lanham v Brake (1983) 34 SASR 578, distinguished.

TUNCKS v CHIEF EXECUTIVE OFFICER OF CUSTOMS
[2005] SASC 408
Magistrates Appeal

WHITE J: On 24 October 2004, the appellant imported into Australia a baton which included two concealed blades. The baton was a prohibited import. The appellant thereby committed the offence of importing a prohibited import, contrary to s 233(1)(b) of the Customs Act 1901(Cth).
Following his plea of guilty, the appellant was convicted and fined $2,500 in addition to court fees and prosecution costs. This is an appeal against that sentence.
The Circumstances of the Importation
The appellant is an apprentice electrician, aged 20 at the time of the offending. He has an interest in literature of the epic fantasy genre. He likes to collect weaponry associated with such literature. By means of the internet, and at a cost of US$25, he purchased the baton from a source in the United States. His intention was to display the baton at home in a display cabinet.
The baton was to be delivered by airmail. It was intercepted by Customs at Melbourne’s Tullamarine Airport. The Customs declaration, completed by the United States vendor, described the item as a “collectible, non-functional sword display”. It was not suggested by the respondent that that description was inaccurate.
The Sentence of the Magistrate
The maximum penalty applicable to this offence is $110,000.[1] However, as the appellant was being prosecuted summarily, the maximum penalty which could be imposed by the Magistrate in his case was $22,000.[2]
[1] Customs Act 1901(Cth), s 233AB, 4AA.
[2] Customs Act 1901(Cth), s 245.
The principal submission made to the Magistrate was that the appellant could be sentenced appropriately by an order pursuant to s 19B of the Crimes Act 1914 (Cth). That is, it was submitted that having regard to the character, antecedents and age of the appellant, and the circumstances of the offending, that it would be appropriate for him to be discharged, without a conviction, upon him entering into a recognizance to be of good behaviour. The Magistrate was provided with four references, each of which confirmed his good character.
The Magistrate did not accede to the submission of the appellant’s then counsel. As noted above, he entered a conviction and fined the appellant $2,500.
Even when one makes allowance for the case load of the Magistrate and for the possibility that some indication of his attitude to the appellant’s submission as to appropriate sentence may have been given during the course of the sentencing submissions, the Magistrate’s remarks can reasonably be regarded as perfunctory. I quote those remarks in full:
I convict and fine the defendant, taking into account all the references. In fixing the amount I bear in mind the maximum penalty prescribed by Parliament and my limitation in this jurisdiction of $22,000. The amount of the fine is $2,500 with court fees and prosecution fees payable.
The need for Magistrates to give adequate, even if brief, reasons for sentence has been discussed in a number of authorities: Tame v Fingleton;[3] Felstead v Giersch;[4] Shrubsole v Rodriguez;[5] Leech v McCall;[6] Wood v McDonald;[7] Jennings v Department of Correctional Services.[8] Of course, in sentences to which the Criminal Law (Sentence) Act 1988 applies, there is a statutory obligation on the court to state reasons for the sentence imposed.[9]
[3] (1974) 8 SASR 507 at 509-10, per Walters J.
[4] (1976) 14 SASR 27 at 30, per Mitchell J.
[5] (1978) 18 SASR 233 at 235-6, per Wells J.
[6] (1986) 41 SASR 96 at 99, per Cox J.
[7] (1988) 46 SASR 570 at 571, per von Doussa J.
[8] [2003] SASC 299 at [15]-[19], per Perry J.
[9] Criminal Law (Sentencing) Act 1988, s 9(1).
There are a number of reasons why adequate reasons, even if brief, should be given for the sentence imposed by a court. First, it informs the offender and the public of the basis for the sentence imposed. Secondly, it facilitates the exercise of appeal rights by either party. Thirdly, where the sentence imposed involves a rejection of a principal submission made by one or other party, it informs that party as to the basis of the rejection and is more likely to inculcate in that party an acceptance that the submissions made on his or her behalf have received appropriate consideration. In my respectful opinion, the sentencing remarks in this case were not adequate. They refer to only two of the matters relevant to the sentence fixed by the Magistrate: the character references which the appellant had provided and the maximum penalty fixed by Parliament for the offence. The remarks do not provide any explanation for the rejection of the submission by the appellant’s then counsel that he should be dealt with by an order pursuant to s 19B of the Crimes Act 1914 (Cth).
However, the failure to give proper reasons, although an error, does not mean that an appeal must necessarily be allowed.[10] What it means is that the Court must assess the penalty imposed in all the circumstances. If, despite the absence of reasons, the sentence imposed nonetheless appears reasonable, the appeal may be dismissed.[11] In the present case, the mention by the Magistrate of two relevant matters tends to suggest that no, or little, regard was had to other relevant matters.
Section 19B of the Crimes Act 1914 (Cth)
[10] Tame v Fingleton (1974) 8 SASR 507 at 510, per Walters J; Jennings v Department for Correctional Services [2003] SASC 299 at [19], per Perry J.
[11] Jennings v Department Correctional Services [2003] SASC 299 at [19], per Perry J.
Section 19B(1) of the Crimes Act provides as follows:
(1)     Where:
(a)     a person is charged before a court with a federal offence or federal offences; and
(b)     the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, cultural background, age, health or mental condition of the person;
(ii)    the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)     dismiss the charge or charges in respect of which the court is so satisfied; or
(d)     discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i)that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)    on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
(iii)that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
It has been held that consideration of the application of s 19B involves a two-stage process: the first is the identification of a factor or factors of the kind specified in sub-paras (i), (ii) and (iii) of sub-s (1)(b); the second is the determination that, having regard to the fact or factors so identified, it is inexpedient “to inflict any punishment” or to reach the other conclusions for which the paragraph provides.[12] Whilst the matters specified in sub-paras (i), (ii) and (iii) of s 19B(1)(b) are the fundamental matters to which regard is to be had, the consideration of whether or not it is inexpedient to inflict any punishment or to reach the other conclusions for which sub-s (1)(b) provides is not confined to those matters. Regard may be had to a wide variety of matters in determining whether or not it is inexpedient to inflict any punishment or to impose any of the other consequences contemplated by the subsection.
[12] Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [10], (2001) 192 ALR 92 at 96, per Spigelman CJ; Parente v The Commonwealth [2002] SASC 212 at [15], (2002) 220 LSJS 126 at 128-9, per Bleby J.
The Appellant’s Circumstances
In the present case, it is not submitted that the offence was trivial or that the offence was committed under extenuating circumstances. Rather, Mr Wells, who appeared for the appellant, emphasised the age and good character of the appellant. This was his first offence. The character references provided to the court spoke of his reliability, honesty and trustworthiness. That assessment of his character is confirmed, to some extent, by his response when first contacted by the Customs regarding this offence. The appellant, with his father, attended voluntarily at the Customs office and participated in an interview. The respondent accepted that the appellant had made full and frank admissions with respect to the importation in that interview.
It is, however, relevant to note that on two prior occasions the appellant had, by similar means as used on this occasion, imported into Australia a prohibited import. Each was of the same general kind as the baton which was the subject of the offending on 24 October 2004. The first involved an item described as a flail. The other was a small dagger. As I understand it, each was a replica of an item of ancient or medieval weaponry. The first item had been imported in August 2004 and the second shortly thereafter. Although the appellant had not been prosecuted, on each occasion, the item had been confiscated by Customs. Further, on each occasion the appellant had been sent a letter by the Customs, one paragraph of which was as follows:
You are advised that it is an offence to import prohibited imports into Australia by virtue of s 233(1)(b) of the Customs Act 1901. These offences are viewed seriously by the Australian Customs Service and anyone committing such an offence may be prosecuted. In future we recommend that you contact the Australian Customs Service if you have any questions before importing any items into Australia.
Thus, the appellant had been put on notice that the importation by him of items of this general kind, even if only as collectibles, was unlawful and that he faced the prospect of prosecution. Despite these warnings the appellant proceeded to place the order which led to the importation on 24 October 2004. The correspondence in relation to the two previous importations indicate a recklessness by the appellant in proceeding with the importation of the baton on 24 October 2004. My impression, however, is that the appellant’s conduct may have been affected by a certain naivety.
Whilst not really disputing the appellant’s character, antecedents and the relevance of his relative youth, the respondent submitted that it was expedient that some punishment should be imposed. Reference was made to the serious nature of the offence, evidenced by the maximum fine of $110,000 which would have been applicable had the appellant not been prosecuted summarily. It was submitted that considerations of personal and general deterrence are particularly important as a sentencing consideration in relation to offences against the Customs Act. This is because of the difficulties of detection and because of the potential for devastating consequences from the importation of even a small prohibited item. This is particularly evident in the cases involving the importation of plant material or a foodstuff in circumvention of Australia’s quarantine laws. Those considerations have been discussed in a number of decisions. In Lanham v Brake[13] the respondent brought three apples into Australia in his luggage. In addition, he falsely made a written declaration to the effect that he did not have any fruit in his possession. In the circumstances of that case, the potential evasion of quarantine restriction was an important consideration. At first instance, the respondent had been dealt with by an order pursuant to s 19B of the Crimes Act. Cox J allowed an appeal against that sentence. He said:
The penalties provided for a breach of s 67 of the Quarantine Act, even upon summary prosecution, are severe and necessarily so. They are also designed, of course, to deter much more dangerous offenders than the respondent, but the typical small scale offender, who prefers to substitute his own judgment about the risks involved for that of an expertly advised Parliament, is still committing a serious offence. It is important that summary courts give expression to the legislative policy indicated by the statutory penalty range. This is an area, in my view, in which considerations of deterrence must predominate.[14]
[13] (1983) 34 SASR 578.
[14] (1983) 34 SASR 578 at 584.
Later, Cox J said:
In the case of these quarantine offences, the relevant considerations will include the seriousness of the offence, its prevalence, the obvious difficulty of detecting breaches under disembarking conditions in which it is quite impracticable to examine the luggage of every passenger, and the consequent need to impose penalties for typical breaches that will make people think twice before trying to slip their small packages of fruit or cooked meat or vegetable seeds through the random Customs check. It is also an important consideration that these offences are commonly committed by persons who are of generally good character. In light of all those matters, viewed against the disastrous consequences to the community that could result from a breach of these laws, any application by a defendant that the charge against him should be dismissed under s 19B of the Crimes Act should, in my view, be regarded by the Court with great circumspection. That does not mean that occasions for the exercise of these mitigatory powers will never occur. No doubt they will, but I should expect that appropriate instances will be uncommon.[15]
[15] Ibid at 585.
Mr Renfrey, who appeared for the respondent, submitted that despite the present case being an instance of importation of a prohibited item of weaponry rather than plant or food material, similar considerations applied.
I agree that the considerations to which Cox J referred are important and are of application in the present context. However, they are to be applied bearing in mind the different circumstances involved. This was a case of importation by airmail. The means of detection were greater because there was not the same urgency about processing the importation as there is usually in processing the arrival of a large number of incoming passengers at an airport. Further, the item was accompanied by an appropriate declaration. Detection in this case was easier than in the circumstances considered by Cox J.
Furthermore, bearing in mind the appellant’s youth and good record, considerations of his rehabilitation are important. In Vartzokas v Zanker, King CJ said:
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person. [16]
[16] (1989) 51 SASR 277 at 279.
In addition, the potential impact of a conviction on the appellant’s future has to be considered.[17] The brief sentencing remarks of the Magistrate do not reveal any indication that these important factors in sentencing were considered. The prospects for successful rehabilitation of this offender should be regarded as good. In the circumstances of his offending, the recording of a conviction does not seem necessary in order to achieve the personal and general deterrence which a sentence for this offending should provide.
[17] Budnjo v Police [2003] SASC 14, (2003) 225 LSJS 296; Yengi v Police [2002] SASC 220.
When all these matters are considered, I do not consider that it can reasonably be concluded that it is not “expedient” to release the appellant on probation. In my opinion, the Magistrate has erred. Although it is not possible, having regard to the absence of adequate reasons, to identify the precise area of the error, it does seem to me that the Magistrate has failed to give any weight at all or, in the alternative, appropriate weight to the appellant’s good character, the prospects of him being rehabilitated successfully and to the particular circumstances in which his offending occurred, which, in many respects, takes it out of the norm for this kind of offending.

In my opinion, this is a case in which the appellant could appropriately be dealt with, pursuant to s 19B of the Crimes Act, by discharging him, without proceeding to conviction, upon him entering into a recognizance in appropriate terms.
The orders of the Court are these:
1.     The appeal is allowed.
2.     The sentence of the Magistrate is set aside.
3.The appellant is discharged without conviction upon his entering into a recognizance in the sum of $1,000 that he will comply with the following conditions:
3.1that he will be of good behaviour for a period of two years;
3.2   that he will on or before 30 November 2005 pay court fees in respect of the hearing in the Magistrates Court fixed in the sum of $108;
3.3   that he will on or before 30 November 2005 pay counsel fees and disbursements of the respondent incurred in connection with the proceedings in the Magistrates Court fixed in the sum of $228.50.
I will hear the parties as to costs.