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[2007] WASC 314
Supreme Court of WA
2007-12-20
Le Miere J, Templeman J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CHIEF EXECUTIVE OFFICER OF CUSTOMS -v- LIN [2007] WASC 314
BETWEEN : CHIEF EXECUTIVE OFFICER OF CUSTOMS BY MALCOLM ROSS PLANT, HIS DULY AUTHORISED DELEGATE
BETWEEN : CHIEF EXECUTIVE OFFICER OF CUSTOMS BY MALCOLM ROSS PLANT, HIS DULY AUTHORISED DELEGATE
Customs - Multiple imports over extended period - Trial of claims for evasion of duty - False statements and smuggling - No appearance by defendant - Different corporate and individual responsibility for shipments - Whether documents adduced at trial identify the alleged corporate and individual responsibilities - Whether proof of being directly or indirectly concerned in the making of false statements and the evasion of duty - Penalty to exceed profits of proved offences - Multiple offences with common elements - Little material to consider mitigation
Crimes Act 1914 (Cth), s 4F, s 16A
1 Actions CIV 2806 of 2001 and CIV 2587 of 2002 (which have been ordered to be tried together) are prosecutions brought under s 244 of the Customs Act 1901 (Cth). The plaintiff, who is the Chief Executive Officer of Customs, claims that the defendants Tso Wen Lin and Giok Bin Teng, and companies with which they were associated, evaded the payment of duty on clothing, stationery and other articles imported into Australia in a number of separate shipments. The plaintiff claims that in so doing, the defendants contravened the provisions of the Customs Act relating not only to the evasion of duty, but also to making false statements and smuggling.
2 The plaintiff seeks reparation orders in the amounts of unpaid duty and interest on those amounts. The plaintiff seeks also to have the defendants convicted of the relevant offences, and to have appropriate penalties imposed on them.
3 The trial was listed to commence on Monday, 3 December 2007. On Monday, 26 November, the court received by facsimile, apparently transmitted by the first defendant, an application to vacate the trial date. The application was somewhat garbled. However, in essence, the first defendant complained that:
We again deny and reject the plaintiff's evidences which contain false, fake and invalid, created and motivated by political purging (the ones from overseas) and discrimination intentions.
5 The first defendant asserted also that the second defendant had been a full-time housewife since 16 December 1983; she knew nothing, had not been involved in the business at all and had been accused wrongly. The application was not accompanied by any supporting affidavit. Nor was there any evidence that it had been served on the plaintiff's solicitors.
6 I instructed my associate to contact the first defendant by telephone, but the call was not answered. My associate therefore sent a letter to the first defendant, by facsimile, to the number appearing on the facsimile from the first defendant. The letter informed the first defendant that he would need to attend at court at 9.30 am on 29 November to explain why he wanted to have the trial adjourned.
7 A copy of the first defendant's application was sent to the plaintiff's solicitors, with an invitation to them to appear on the first defendant's application.
8 The first defendant did not appear on 29 November. I therefore informed counsel for the plaintiff that I would not adjourn the trial on the basis of the bare application made by the first defendant, and that if the defendants did not appear on 3 December, the trial would proceed in their absence.
9 On 3 December, when the actions were called on, neither of the defendants appeared. I therefore proceeded with the trial. This course was open to me under O 34 r 2 of the Rules of the Supreme Court 1971 (WA) which provides:
If, when a trial is called on, one party does not appear the Judge may proceed with the trial of the action or of any counterclaim in the absence of that party.
10 The principle then applicable is as set out in [34.2.3] of Seaman on Civil Procedure in Western Australia:
If the defendant does not appear at the trial the plaintiff must prove his or her claim so far as the burden of proof rests upon him or her, and is confined to relief clearly pleaded: Stone v Smith (1887) 35 Ch D 188 at 190. He or she need not prove that due notice of the trial was given to the defendant: Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 242.
11 In the present case, the fact that the defendants sought to vacate the trial date, demonstrates that they had been given due notice.
12 In a prosecution under the Customs Act, proof of the plaintiff's case is facilitated by s 255 which provides:
(1) In any Customs prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.
(2) This section shall apply to any matters so averred although:
(a) evidence in support or rebuttal of the matter averred or of any other matter is given by witnesses; or
(b) the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only.
(3) Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) The foregoing provisions of this section shall not apply to:
(a) an averment of the intent of the defendant; or
(b) proceedings for an indictable offence or an offence directly punishable by imprisonment.
(5) This section shall not lessen or affect any onus of proof otherwise falling on the defendant.
13 It is now settled that although customs prosecutions are conducted in the civil jurisdiction of the court, an offence must be proved beyond reasonable doubt: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161. The averment provisions do not alter the burden of proof: Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159. However, in the absence of evidence from the defendant, prima facie evidence is sufficient for the plaintiff to discharge the onus of establishing the matter or matters averred beyond a reasonable doubt: Davis v Armstrong (1993) 17 MVR 190, 192; Powell v Battle [1963] WAR 32.
14 That being so, although the defendants have made a number of admissions in their defence, it is not necessary to analyse their significance or extent: subject to any relevant evidence, the averments in the statement of claim will prove beyond reasonable doubt the facts alleged against the defendants, other than any intention attributed to them.
15 Having regard to the provisions of s 255 of the Customs Act, I am satisfied that the plaintiff has proved beyond reasonable doubt the following matters pleaded in his statement of claim.
16 At all material times, the first and second defendants were husband and wife. They carried on business under the names Lin & Teng Trading Co and through the medium of two companies, Lin & Teng Trading Co Ltd and L & T Lin Trading Co Pty Ltd. Further, the defendants were the only two directors of a third company, Lin & Teng Pty Ltd: and the first defendant was the sole director of a company known as L & T Lin Trading Pty Ltd (L & T): pars 2 and 3. It is not alleged that the second defendant had any involvement with L & T.
17 The plaintiff alleges that between about 1 February 1996 and 17 May 1999, L & T, the defendants or one or more of them imported quantities of clothing, stationery and other articles into Australia in 27 separate shipments: par 4. Details of those shipments are set out in the particulars of par 4. However, it is clear from documents tendered at the trial, that these allegations are substantially inaccurate. The documents are contained in a bundle entitled 'Customs Electronic Transfer Receipts for Schedule of Penalties' (exhibit 1).
18 This is a collection of documents generated by ACS, identifying the owners of each of the 27 shipments.
19 It is clear from exhibit 1 that none of the shipments was imported by the defendants in their own names, but in the names of either L & T or one of the names pleaded in par 3 of the statement of claim under which the defendants are said to have carried on business.
20 It may be that the plaintiff intended to allege those facts in the statement of claim. However, he did not do so: and I did not consider that the statement of claim could be read in that way until I saw exhibit 1. Nor, it seems, did the plaintiff's counsel. For example, he referred to 'shipments ... imported by Lin and Teng personally in the 2001 action' (ts 147). The defendants do not have exhibit 1.
21 In par 4 of their defence, the defendants have admitted what was alleged against them in par 4 of the statement of claim. They have not admitted or asserted that they imported goods through the entities in which they carried on business together. However, I do not think it right to convict the defendants on the basis of admissions, which, on the basis of the plaintiff's documents, are either ambiguous or mistaken.
22 To make out a case which accords with the evidence contained in exhibit 1, the plaintiff would need to amend his statement of claim. But he cannot do so, after the conclusion of a trial conducted in the absence of the defendants.
23 Any such amendment would not be trivial. Although most of the shipments attributed to the defendants were in fact imported by Lin & Teng Trading Co Ltd, there is no allegation in the statement of claim as to the identity of the directors of that company. Presumably, the defendants could be liable for its acts and omissions only as aiders, under s 236 of the Customs Act.
24 I therefore see no proper basis for making any adverse findings against the defendants in relation to the importation of goods other than by L & T.
25 By s 68(2) of the Customs Act, the owner of dutiable goods who wishes to import them into Australia is required to enter the goods for home consumption, warehousing or trans-shipment.
26 Where goods are entered for home consumption, a Nature 10 entry is required. A Nature 20 entry is required for goods which are to be consigned to a warehouse: and a Nature 30 entry is required for goods which are to be removed from a warehouse: statement of claim, par 5.
27 It is alleged also in par 5, that in respect of each of the shipments, L & T, the defendants or one or more of them, lodged Nature 10, 20 or 30 entries with the Australian Customs Service (ACS) through customs brokers. Despite my reservations about the accuracy of par 4, I will accept that statement as correct, on the basis that only the defendants were involved in the importation, albeit on behalf of various corporate entities.
28 Each of the Nature 10 and Nature 20 entries contained statements as to the invoice price of the goods to which it related and the customs value of those goods: par 6.
29 Each Nature 30 entry contained statements as to the customs value of the goods to which it related: par 7.
30 Details of the invoice prices and customs values for each of the shipments are set out in Appendix 2 to these reasons.
31 By s 234(2B) of the Customs Act, the statements contained in the entries were deemed to have been made to the plaintiff: par 8.
32 It is alleged in par 9 of the statement of claim that the entries contained statements that were materially false or misleading, in that the declared invoice price in each case was below the true price: and the declared customs value was below the true customs value.
33 On 7 September 2001, a duly authorised customs officer re-determined the customs values of the shipments, pursuant to div 2 of pt VIII of the Customs Act: par 10.
34 Details of the true invoice prices and customs values are set out in Appendix 3 to these reasons.
35 I accept the accuracy of the allegations pleaded in pars 6, 7, 9 and 10.
36 It is alleged in par 11, that the statements were made by the relevant importer:
In the knowledge of their falsity or recklessly as to their truth, contrary to section 234(1)(d) of the [Customs] Act.
The prices contained in the statements were not the prices which L & T, [the defendants] or any one or more of them (as the case may be) in fact paid. (par 11)
38 That is, in substance, an allegation that the makers of the statements intended to make false statements or were reckless in that respect. As counsel for the plaintiff accepts, these are not matters which can be proved by the averment provisions of s 255 of the Customs Act. However, counsel submits that given the fact that each of the 62 entries, relating to 27 shipments over a period exceeding three years was false, and the fact that all the values were understated, the inference can be drawn beyond reasonable doubt that whoever made the relevant statements knew them to be false.
39 I accept that submission. Had there been one, or even perhaps a small number of incorrect statements, the inference that there had been a mistake or misunderstanding might be open. However, the pattern here is such that I am satisfied beyond reasonable doubt that whoever made the statements to the ACS must have known that they were materially false.
40 Section 234(1)(d) of the Customs Act provides that:
(i) intentionally make a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular; or
(ii) intentionally omit from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular.
41 Section 234(2) provides that a person who contravenes s 234(1) is guilty of an offence punishable upon conviction.
42 In the present case, there is no evidence as to who provided the false information to the brokers, who then submitted it, in good faith, to the ACS. That being so, it is appropriate to have regard to the principle stated by Goddard LCJ in R v Abbott [1955] 2 QB 497:
If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of not guilty against both because the prosecution have not proved the case. If, in those circumstances, it is left to the accused persons to get out of it if they can, that would put the onus upon them to prove themselves not guilty (503). (my emphasis)
43 That passage was approved by the Privy Council in King v Reginam [1962] 1 All ER 816 and in Aston v Mason (1992) 94 Cr App R 180. In R v O'Connor [1962] NSWR 953, the Court of Criminal Appeal of New South Wales cited the passage as authority for the proposition that 'guilt cannot be established by a mere process of elimination'.
44 As I have noted above, the plaintiff alleges in par 4 of the statement of claim that goods were imported by 'L & T, Lin and Teng or one or more of them' apparently in their own names.
45 However, the allegation that goods were imported by the defendants or one or more of them is not an allegation that the defendants were acting in concert. Rather, it is an allegation that the defendants might have been acting in concert, or that they might have been acting individually.
46 As I have noted above, apart from correcting the names of two of the suppliers identified in the particulars, the defendants admit par 4 of the statement of claim. But in my view, that does not assist the plaintiff. In the absence of a clear averment that the defendants were acting in concert, neither could be convicted of any offence arising from the importation of goods in their own names. I emphasise that there is no allegation that the defendants carried on business together other than in the names pleaded in par 3 of the statement of claim.
47 It follows, in my view, that even if the plaintiff remedied the defects in par 4 of the statement of claim and identified the correct importers, there would still be no basis for making adverse findings against the defendants, other than in respect of goods imported by L & T.
48 In par 12 of the statement of claim, the plaintiff alleges (further or alternatively to par 11), that the first defendant was directly or indirectly concerned, for the purposes of s 236 of the Customs Act, in the making of the statements in respect of the shipments imported by L & T. These are said to be the shipments numbered 1 - 5, 11, 14, 21, 23 and 25 - 27 as set out in Appendix 1. However, it appears from exhibit 1 that shipments 2, 3, 11 and 23 have been included in error. The owner of those shipments is shown as Lin & Teng Trading Co Ltd, not L & T Lin Trading Pty Ltd.
49 Section 236 of the Customs Act provides:
For the purposes of a Customs prosecution (within the meaning of section 244), whoever aids abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly.
50 The allegation against the first defendant that he was directly or indirectly concerned in the making of false statements involves an element of intention. That being so, it is not within the averment provision in s 255 of the Customs Act.
51 Counsel for the plaintiff submitted that the first defendant's involvement is proved beyond a reasonable doubt by reason of the fact that he is the sole director of L & T, a fact averred in par 3.1 of the statement of claim (and admitted in par 3 of the defence).
52 There is no evidence about the way in which L & T conducted its business. The plaintiff has proved only that the first defendant was L & T's sole director. However, I accept the plaintiff's submission that this is a case in which it is legitimate to take into account the first defendant's failure to give any explanation for the fact that all the entries for the eight L & T shipments were false. That is not to say that the burden of proof has shifted to the first defendant. Rather, it is to recognise that because the first defendant is the sole director of L & T, he is likely to know how it conducted its business: see May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 and RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620.
53 I am therefore satisfied beyond reasonable doubt that the only inference to be drawn from the circumstances summarised above, is that the first defendant was responsible for L & T's conduct, and was therefore directly or indirectly concerned in the commission of its offences, pursuant to s 236 of the Customs Act.
54 The plaintiff alleges in par 13 of the statement of claim that in respect of each of the 27 shipments, a greater amount of duty than that paid was in fact payable and remains payable, having regard to the true customs values of the relevant goods. The total amount of duty evaded is alleged to be $90,367.85.
55 Details of the individual amounts are set out in Appendix 5 to these reasons.
56 The plaintiff alleges in par 14 that L & T evaded payment of duty in respect of each of its shipments, contrary to s 234(1)(a) of the Customs Act.
57 These allegations are proved by the application of s 255 of the Customs Act. I am therefore satisfied beyond reasonable doubt that L & T has evaded payment of duty, in the amounts pleaded against it, other than shipments 2, 3, 11 and 23.
58 However, L & T is no longer a party to the action. I am told that it has been deregistered pursuant to s 601AA of the Corporations Act 2001 (Cth). No doubt for that reason, the plaintiff discontinued against L & T before trial.
59 In par 15 of the statement of claim, the plaintiff seeks to hold the first defendant liable for the duty evaded by L & T, pursuant to s 236 of the Customs Act.
60 I take the same view in relation to this aspect of the claim against the first defendant as I do in relation to the claim that he was directly or indirectly concerned in making false statements. That being so, I am satisfied beyond reasonable doubt that the first defendant was directly or indirectly concerned in the evasion of duty by L & T.
61 In par 16 of the statement of claim, the plaintiff alleges that the first and second defendants or either one of them evaded payment of duty in respect of shipments 7, 10, 13, 15 - 17, 22 and 24 and shipments 6 and 8 in respect of entry 5F.7066.0316J - N10 in relation to shipment 8. These are shipments the plaintiff alleges (erroneously) were imported by the first and second defendants in their own names.
62 Because (for the reasons given above) I am not satisfied beyond reasonable doubt that the defendants acted in concert in providing the relevant information to the brokers, I cannot convict either of them of the evasion alleged against them in par 16.
63 In par 16A of the statement of claim, it is alleged that further to par 16, the defendants attempted to evade the payment of duty payable in respect of shipments 6 and 8. By way of particulars, the plaintiff relies first on the matters which I have set out in the appendices to these reasons. The plaintiff then provides the following particulars:
(a) [the first and second defendants] paid the duty as particularised in relation to Entry 5F.7066.0316J - N10 in relation to shipment 8;
(b) [the first and second defendants] attempted to evade the duty payable as particularised in relation to Entry 5F.7147.0155K - N20 in relation to shipment 6 and Entry 5F.7066.0326M - N20 in relation to shipment 8; and
(c) the duty payable in relation to Entry 5F.7147.0155K - N20 in relation to shipment 6 and Entry 5F.7066.0326M - N20 in relation to shipment 8 was recovered from Owens.
64 The reference in (c) above to 'Owens' is to the broker, Owens International Freight Pty Ltd, as appears from Appendix 1, where details of the entries are set out.
65 As appears also from that appendix, there were five entries in relation to shipment 6 and six entries in relation to shipment 8. These include the entries referred to in (a) and (b) above.
66 The pleading was explained by counsel for the plaintiff in the following way. Counsel said that the goods the subject of the entries referred to in (b) above were consigned to a warehouse. This is apparent from the fact that they were Nature 20 entries. As explained earlier in these reasons, duty is not payable on goods which have been consigned to a warehouse on a Nature 20 entry. Duty is payable only when the goods are to be released from the warehouse, when they are the subject of a Nature 30 entry.
67 Therefore, the plaintiff does not contend that any duty has been evaded in relation to Nature 20 entries. However, the plaintiff contends that because the value of the goods was understated when they were entered and consigned to a warehouse, the defendants must be taken to have intended to evade the duty properly payable when, at some later date, the goods were released from the warehouse on a Nature 30 entry.
68 The plaintiff contends further that the defendants' intention to evade duty was thwarted when the duty was paid by Owens, the broker.
69 In my view, for the reasons given above, it is not possible to convict either of the defendants of the attempt, when there is no evidence as to which of them provided the false information to the brokers, and when the plaintiff does not allege that they acted in concert when importing goods in their own names. In any event, as appears from exhibit 1, the goods were not imported by the defendants, but by Lin & Teng Trading Co Ltd.
70 In par 17 of the statement of claim, the plaintiff alleges that further or alternatively to par 16 and par 16A, the first defendant was directly or indirectly concerned, for the purposes of s 236 of the Customs Act, in the evasion and/or attempted evasion of duty in respect of the defendants' shipments.
71 In relation to this allegation, I consider that because I could not make a finding as to which of the defendants was the principal offender, or whether they were both guilty, it would be inappropriate to convict the first defendant as an aider or abettor.
72 Further, the first defendant could be guilty only if he aided Lin & Teng Trading Co Ltd: and that is not alleged against him.
73 The plaintiff pleads in par 18 of the statement of claim that the defendants did not pay the full amount of duty payable in respect of shipments 9, 12, 18, 19 and 20.
74 As appears from the particulars to par 4 of the statement of claim, these are some of the shipments said (erroneously) to have been imported by the defendants. It is not clear why the plaintiff has limited his claim to the shipments specified in par 20.
75 It must follow from the fact that the value of the goods was understated, that the full amount of duty has not been paid. However, as appears from exhibit 1, these goods were imported by Lin & Teng Trading Co Ltd, not by the defendants.
76 Smuggling is defined in s 4 of the Customs Act to mean:
[A]ny importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue.
77 The prohibition against smuggling is contained in s 233(1)(a) of the Customs Act, which provides:
78 The plaintiff alleges in par 19 of the statement of claim that L & T imported its shipments with intent to defraud the revenue, and thus smuggled those shipments contrary to s 233(1)(a) of the Customs Act.
79 Having regard to the findings referred to above, I accept that to be so.
80 It is then alleged in par 20, that 'further or alternatively to par 19', the first defendant 'was directly or indirectly concerned for the purposes of s 236 of the [Customs] Act, in the smuggling of L & T's shipments'.
81 For the reasons given above in relation to the first defendant's involvement with L & T, I am satisfied beyond reasonable doubt that he aided or abetted L & T to smuggle the goods imported by that company, or was in some way directly or indirectly concerned in the smuggling. That is, the shipments pleaded in the statement of claim, other than shipments 2, 3, 11 and 23.
82 For the reasons given above, I cannot convict either of the defendants of smuggling as alleged in par 21 of the statement of claim: nor can I convict the first defendant as an aider or abettor of the defendants, as alleged in par 22.
83 This action is, in essence, a continuation of the action CIV 2806 of 2001. It is a customs prosecution brought by the plaintiff against the first defendant only.
84 The plaintiff's claim against the first defendant is that as the secretary and sole director of L & T, and a further company, T & L Corp Pty Ltd (T & L Corp), the first defendant aided and abetted those companies in making false statements, in evading duty and smuggling, in relation to two shipments imported by L & T and T & L Corp respectively on 13 June and 26 November 1999.
85 The plaintiff alleges that the true customs value of the goods imported by L & T was $5,545.37; the declared value was $2,435.28. The true customs value of the goods imported by T & L Corp was $14,002.81; the declared customs value was $6,574.82. I accept these figures as being accurate.
86 It will be recalled that L & T imported shipment 27 (the subject of the 2001 action) on 17 May 1999. Thus, the two shipments the subject of this action continued a sequence commencing with shipment 1 on 9 November 1997.
87 In these circumstances, I draw the same inferences about the first defendant's conduct in this action as I did in the 2001 action. I am therefore satisfied beyond reasonable doubt that the first defendant is guilty of the offences alleged against him, as summarised above.
88 Any person found guilty of an offence under the Customs Act must be sentenced in accordance with s 16A of the Crimes Act 1914 (Cth). Section 16A(1) of that Act provides:
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
89 The circumstances of the offence must be considered having regard to the importance of the Customs Act and the policy of the Parliament in relation to offences against it. These matters are set out in the seminal judgment of Kitto J in L Vogel & Son Pty Ltd v Anderson, Minister of State for Customs and Exports for the Commonwealth of Australia (1967) 120 CLR 157, 164. In that case, the defendants paid the duty they had evaded previously and gave the customs service every assistance in their investigations. Despite that, Kitto J said:
But when all the considerations relied upon by the defendants have been given due attention the case still cannot be regarded as other than a serious one. Not only are the defendants guilty of a sustained course of conscious wrongdoing, but the offences are in a field in which punishments for deliberate offences must be severe. The Customs laws represent the judgment of Parliament upon an important aspect of the economic organization of the community, and the object of the penal provisions is to make that judgment as effective as possible. It is important to remember that Customs officers have of practical necessity to rely extensively upon the information supplied to them by importers, for the flow of commerce could not be maintained if every importation had to be fully investigated. Moreover, detection of frauds is not always easy. No doubt ordinary conceptions of honesty and of civic responsibility suffice to ensure a great deal of fair dealing with the Customs, but for some people little seems to matter but fear of the consequences of discovery. The Customs Act makes those consequences potentially drastic. It is for the courts to make them, in suitable cases, drastic in fact, for otherwise traders who are not saved by qualms of conscience from willingness to defraud their fellow citizens may weigh the profits they hope for against the penalties they have cause to fear and find the gamble worthwhile (164).
90 The proposition that customs officers have to rely extensively on information supplied to them by importers is as true today as it was 50 years ago when Kitto J gave his judgment. That is confirmed by the evidence of a senior customs officer taken at the trial.
91 The offences for which the first defendant must be sentenced as an aider or abettor of offences committed by L & T and T & L Corp (whereby he is deemed to be a principal offender) are the making of false statements, evasion of duty and smuggling. The penalty for each of those offences is prescribed by the Customs Act. At the material time, they were as follows:
92 The amount of duty payable on the shipments properly attributed to L & T in the 2001 action and the L & T and T & L Corp shipments in the 2002 action was $72,510.95. That includes shipments numbered 1, 4, 5, 14, 21, 25, 26 and 27 in the 2001 action. The amount of duty evaded was $47,428.42.
93 It follows, applying the penalty provisions referred to above, that the minimum penalty which could be imposed on the first defendant would be $94,856.84 and the maximum penalty would be $749,718.75.
94 In considering where, within this range, it would be appropriate to fix the penalty, I have regard to the fact that although there are three separate categories of offence, each category arises from precisely the same facts. That is to say, that the first defendant is guilty of aiding and abetting smuggling because he intended to defraud the revenue: and he achieved that result by making false statements as to the value of the goods and thereby evaded the payment of duty. Thus, the making of a false statement is an element common to each of the offences. That being so, the principle stated by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 must be taken into account:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts (623).
95 There is, of course, a contrary legislative intention in the present case in that minimum penalties are prescribed for evasion of duty.
96 Nevertheless, as Fryberg J said in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40:
It has never been doubted in the context of customs prosecutions that in determining penalties, it is material to take into consideration that, though the offences in respect of one shipment were separate offences in law, they were substantially contemporaneous and connected [26].
97 In that case, the relevant offences were evasion of duty, knowingly making false or misleading statements and moving or interfering with controlled goods. Thus, as Fryberg J observed:
Here there was more than contemporaneity and connectivity; there was overlap. The overlap lay not in the definition of the offences, but in the fact that the same conduct satisfied the elements of one offence and constituted a set of facts essential to the proof of an element of another [26].
98 In Chief Executive Officer of Customs v Tonmill Pty Ltd [2001] WASC 77, Hasluck J said:
It is apparent from the schedule of penalties that in a case such as this where there are multiple offences, with various offences being referable to each shipment, imposition of penalties close to the maximum for each offence would produce an extraordinary result. I recognise that severe penalties must be imposed, but this recognition must obviously be tempered to some degree by the realities of the situation. I emphasise that in most other cases of this kind it would certainly not be appropriate to impose minimum penalties in respect of the various offences and to impose a comparatively light financial penalty in respect of a false statement. Indeed, in general terms, the expectation must be that a significant penalty will be attached to the making of a false statement, bearing in mind, as appears from the schedule of penalties, that the maximum penalty is a penalty not exceeding $5000 and twice the amount of the duty payable on the goods [47].
99 However, his Honour went on to take account of the decision in Goulding v Penello [1999] WASC 192 where Heenan J, while giving due weight to the principles to be derived from Vogel's case, concerning the need for deterrence and drastic penalties, was nevertheless of the opinion that the multiplicity of charges could be regarded as oppressive. Taking a broad view, Heenan J concluded there was a basis for the imposition of a low penalty in respect of offences of making a false statement in circumstances similar to the present case. That is, six charges of smuggling, six charges of evading payment of duty, four charges of obtaining non-payable refunds and 10 charges of making false statements.
100 James J took a broadly similar approach in CEO of Customs v Liang [2005] NSWSC 591.
101 It is to be noted that the effect of imposing penalties in respect of a multiplicity of charges cannot be alleviated by the application of s 4K of the Crimes Act. This has now been settled by the decision of the High Court in Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174.
102 Although s 16A(1) of the Crimes Act sets out the general approach to sentencing, s 16A(2) sets out a number of specific matters which must be taken into account insofar as they are 'relevant and known to the court'.
103 The first of these matters in par (a) is 'the nature and circumstances of the offence'. No more is known about these matters than is disclosed in the statements of claim in the two actions, to which I have referred sufficiently above.
104 Paragraph (b) requires account to be taken of other offences committed by a defendant. I am told that there are none in the present case.
105 Paragraph (c) requires account to be taken of the course of conduct, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character. That is certainly the case here. Each offence is necessarily more serious than the offence which preceded it because the first defendant became a repeat offender to an ever-increasing extent. There is every reason to assume that the first defendant would have continued his course of conduct if it had not been discovered.
106 Passing over pars (d) and (e), which are not relevant, I come to par (f), (g) and (h). These require account to be taken of the degree to which the offender has shown contrition for the offence, any plea of guilty and the degree to which the defendant has cooperated with law enforcement agencies in the investigation of the offences.
107 Where these matters exist, they are mitigating circumstances. However, none of those circumstances exists here. The first defendant has not shown contrition; he has not pleaded guilty and he has not cooperated with the ACS. However, these provisions do not say that conduct of this kind should be regarded as an aggravating factor. Indeed, it is a fundamental principle that a person accused of any offence is entitled to have the relevant authority prove his guilt and cannot be penalised by the imposition of a more severe sentence if he chooses to exercise that right.
108 There are then, in pars (j) to (n), a number of matters personal to the first defendant which must be taken into account. These are:
109 These are matters about which I know virtually nothing. Counsel for the plaintiff informed me that it appeared from company records that the first defendant was born in Taiwan on 15 January 1951, so that he is now almost 57 years of age. Counsel told me also that the first defendant had lodged a debtor's petition in bankruptcy. However, I do not know whether the first defendant is in that position because of circumstances beyond his control or through his own fault. As noted above, the facsimile purporting to have been transmitted by the first defendant requesting that the trial date be vacated, referred to the first defendant being in a 'medical rehabilitation programme'. However, that is not a matter into which I can enquire without the first defendant's authority.
110 In these circumstances, I cannot take into account the deterrent effect that the sentence might have on the first defendant, the extent to which the sentences I make will punish him or his prospects of rehabilitation. However, I am mindful of the need to impose penalties which will act as a general deterrent to others who might be tempted to commit offences against the Customs Act.
111 The final matter to which I must have regard is that set out in par (p): the probable effect that any sentence or order under consideration would have on any of the first defendant's family or dependants. Again, this is not a matter about which I have any evidence. I know only that the second defendant is the first defendant's wife and that she has an interest in two properties in Western Australia. However, I know nothing of the value of those interests.
112 In these circumstances, applying s 16A of the Crimes Act and taking into account such of the matters referred to in s 16A(2) as are relevant and known to me, I consider that the first defendant should be convicted of being directly or indirectly concerned in the commission of 27 offences by L & T Lin Trading Pty Ltd and 3 offences by T & L Corp Pty Ltd, being:
The plaintiff is entitled to declarations to that effect.
113 I consider that the appropriate penalties to be imposed on the first defendant are as follows:
in relation to making false statements: a penalty of $500 for each of 10 entries
in relation to evasion of duty: a penalty which is three times the duty evaded on each shipment
in relation to smuggling: a penalty of $1,000 for each of 10 shipments
114 In addition, I will make a reparation order, pursuant to s 21B(1)(c) of the Crimes Act for the payment of duty which has been evaded and remains unpaid: $47,428.42.
115 I will order the payment of interest on the amounts making up that total, pursuant to s 32(1) of the Supreme Court Act 1935 (WA), payable at a rate of 6% per annum from the dates on which the relevant goods were released until the date of the order: see Goulding v Penello [27].
116 The plaintiff's claims against the second defendant will be dismissed.
117 I shall ask counsel for the plaintiff to prepare an appropriate minute of order.
5F60850252J - N20 amended by post warrant amendment 5F60920045D
5F61920161C - N30 amended by post warrant amendment 5F61930118E
5F61290209H - N30 amended by post warrant amendment 5F61310144E
5F61850253D - N30 amended by post warrant amendment 5F61910039K
(2003) 216 CLR 161
(2005) 224 CLR 159
(1993) 17 MVR 190
(1955) 92 CLR 654
(1993) 178 CLR 217
(2000) 199 CLR 620
(1967) 120 CLR 157
(1998) 194 CLR 610
(2004) 218 CLR 174