Anderson v L Vogel & Son Pty Ltd

Anderson v L Vogel & Son Pty Ltd - [1968] HCA 90 - HCA 1968 case summary — Zoe

[8]

In the result the defendants admit that they are guilty of eighty-three offences against s. 234. They are further charged with having committed nineteen offences against s. 233 (1) (a) which provides that no person shall smuggle any goods. One such offence is charged in respect of each of twelve ships, two in respect of one ship, and five in respect of another. The reason for making several charges in respect of a ship is that the relevant goods on that ship were the subject of several invoices from the German suppliers and the goods covered by each invoice were separately dealt with for customs purposes. The defendants deny that they are guilty of smuggling any goods. Smuggling is defined by s. 4 (1) as meaning, inter alia, any importation of goods with intent to defraud the revenue. The defendants admit that they did import the goods to which the smuggling charges relate, and they admit that all their acts which constituted offences against s. 234 were done with intent to defraud the revenue; but they deny that their importation of any of the goods was an importation with intent to defraud the revenue. Their point may be expressed by saying that the offence of smuggling is not committed unless the intent to defraud the revenue not only exists at the time of the importation (as it plainly did in the present case) but characterizes the act of importation - unless, in other words, the intent is an intent to defraud the revenue by means of the importation itself and not by means of subsequent acts such as the presentation of false documents or the making of false entries. In my opinion it is unsound to divorce an importation of goods from the importer's conduct in passing or attempting to pass them through the Customs, when in truth the whole procedure has been adopted as a means of getting the goods into the country without paying the duty which is payable upon them. I see no logic in saying that while the offence of smuggling, as defined, is committed if the intent is to get the goods past the Customs under cover of darkness and without payment of any duty, it is not committed if the intent is to get them past the Customs under cover of false papers and upon payment of insufficient duty.

[11]

The maximum penalty prescribed in pounds for each offence against s. 234 is $200, but as prescribed otherwise than in pounds it has to be worked out in accordance with the provisions of s. 241 and, if it applies, s. 240. The former of these sections provides that any person may at the same time be charged with an offence against the Act and with an intent to defraud the revenue, and that if in addition to such offence he is convicted of such intent the maximum penalty shall be double that otherwise provided. The defendants are here charged with intent to defraud the revenue in respect of each offence and they admit that in each instance they had that intent. I therefore convict them not only of all the offences but also of the intent in relation to each offence. The consequence is that unless s. 240 makes a difference the maximum penalty is, by virtue of s. 241, $400 for each offence against s. 234. The Crown, however, relies upon the provision in s. 240 that if any penalty shall be less than three times the value of any goods in respect of which the offence has been committed the maximum penalty shall be thrice the value of the goods. If this provision as well as s. 241 applies to the offences committed against s. 234 in this case the maximum penalty for each such offence is six times the value of the goods. The defendants submit that s. 240 does not apply to these offences. They say that it relates only to offences committed "in respect of any goods", and that offences against the paragraphs of s. 234 other than par. (h) are committed in respect of duty, documents, entries, and so forth - in respect, that is, of the immediate subject matter of the conduct which constitutes the offence - but not in respect of goods. A tendency of opinion favourable to the defendants on this point was expressed by Jordan C.J. and Street J. in Ex parte Falstein; Re Maher [1] , and upon consideration I think the contention is right. The expression "in respect of", in the context of the section, seems to me to refer to a direct connexion between the acts charged as the offence and the goods. To say that the offence of evading payment of duty (to take that example) is "in respect of" the goods to which the duty relates is correct only in the broad sense that the evasion is connected with the goods in logical thought. The more natural meaning to give the provision is that which treats "in respect of" as referring to a direct connexion with particular goods, as where the offence consists in something that has been done to or about the goods themselves, something in the nature of a dealing with the goods. The context of s. 240 actually supports this more specific construction; for it is easier to see a sensible policy in relating the amount of the penalty to the value of the goods where the offence directly involves the goods themselves than where it consists in conduct which does not touch the goods but relates to them only remotely and because it is conduct about some amount of duty or some document or the like which in its turn has a connexion with the goods in the general sense of a relevance to them.

[12]

I am therefore of opinion that s. 240 has no application to any of the offences here charged except the offences against s. 233 (1) (a). Smuggling undoubtedly is an offence in respect of goods, but s. 241 in my opinion does not apply to that offence, for intent to defraud the revenue is an ingredient in the offence, and it necessarily follows that a person cannot be convicted of that intent "in addition to" the offence. The maximum penalty for smuggling is therefore $200 as prescribed by s. 233 (1) (a) itself or three times the value of the goods, whichever is the larger. The latter is in fact the larger in this case, amounting to more than half a million dollars in all. Such a penalty, of course, would be out of all proportion to the circumstances of the case. Yet heavy penalties are obviously called for. Over a period of about nineteen months, the defendants did or caused to be done fraudulent act after fraudulent act in a systematic scheme of defrauding the Customs so as to gain the defendant company an illegitimate advantage over its competitors on the Australian market and thus to enable it to make profits which it had no right to make. The defendants ask me to take into account, and I do, that the offences related to goods of a total value of less than $140,000, that the duty evaded was less than $40,000, and that so far as can be ascertained the resale of the goods would have given the company a profit of only about $18,000 if the duty had never had to be paid. The turnover of the company's business seems to be worth about $800,000 a year, and according to the accounts that have been produced its net trading profits (for years ended on 30th June) were only in 1963 about $22,000, in 1964 $8,700, and in 1965 $3, 800. In 1966 there seems to have been a trading loss of about $16,400. I do not find it possible, however, to derive any very sure assistance from the accounts that are before me, for no one in the company has given evidence in support of the accounts or upon such obvious matters for inquiry as the real value of the company's assets, the nature or extent of its liabilities and the situation existing between it and other (presumably subsidiary) companies that are referred to in the balance sheets. The defendant Vogel has not appeared in the witness box, and I am therefore without information as to his personal situation. I mention these matters because I am invited to deal with the case on the footing that the company is in a comparatively small way of business, and to fix the penalties at amounts which will not cripple it. The evidence has not put me in a position to give more than very general weight to that kind of consideration.

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Decision date

Before

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Judgment (29 paragraphs)

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