Court of Appeal (Qld)|2003-01-31|Before: McMurdo P, Davies JA and Holmes JSeparate reasons, for judgment of each member of the Court, Davies JA and Holmes J concurring as, to the orders made, McMurdo P dissenting, in part
McMurdo P, Davies JA and Holmes JSeparate reasons, for judgment of each member of the Court, Davies JA and Holmes J concurring as, to the orders made
Catchwords
CRIMINAL LAW – COMMONWEALTH OFFENCES – MANUFACTURE OF EXCISABLE
GOODS – FAILURE TO PAY DUTY ON EXCISABLE GOODS
– where respondent
sentenced for manufacture of tobacco without a manufacturer’s licence
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – COMMONWEALTH OFFENCES – MANUFACTURE OF EXCISABLEGOODS – FAILURE TO PAY DUTY ON EXCISABLE GOODS– where respondentsentenced for manufacture of tobacco without a manufacturer’s licence– where respondent orderedto pay reparation in respect of loss to theCommonwealth resulting from the offence – where reparation order ofMagistrateoverturned on appeal to District Court – where applicant seeksreinstatement of Magistrate’s order – whether therewas ‘entryfor home consumption’ for the purposes of s 54 of the Excise Act1901 (Cth) – whether the respondent, as manufacturer or owner, was liableto pay the duty from the time the tobacco was manufactured– whether theCommonwealth suffered a loss “by reason of” the offencesPRACTICEAND PROCEDURE – EXERCISE OF JUDICIAL DISCRETION – whether theMagistrate erred in the exercise of his discretionto make the reparation order– whether the Magistrate gave sufficient weight to the respondent’s
means and the actual
benefit flowing from the offences to him.
Excise Act 1901 (Cth), s 54(1), s 58(1A), s 117B, s 161
Crimes Act 1914 (Cth), s 21BCustoms Act 1901 (Cth), s 132,
s 153
Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation
[1944] HCA 31
(1944) 70 CLR 362, consideredCameron v Holt [1980] HCA 5
(1980) 142 CLR 342,
consideredChief Executive Officer of Customs v Tony Longo Pty Ltd
[2001] NSWCA 147
(2001) 52 NSWLR 458, consideredDavies v Taylor (1996) 140 ALR 245,
consideredHookham v R [1994] HCA 52
(1994) 181 CLR 450, consideredKanbur Pty
Ltd v Adams [1984] FCA 204
(1984) 3 FCR 192, consideredKimberly-Clark Ltd v
Commissioner of Patents & Anor [1988] FCA 421
(1988) 84 ALR 685, consideredMain
Electrical v Civil & Civic (1978) 19 SASR 34, consideredMalika v
Stretton (2001) 204 CLR 290, consideredMitty’s Newsagency v
Registrar of Trade Marks (1983) 78 FLR 217, consideredMorton v Union
Steamship Co of New Zealand Ltd [1951] HCA 42
(1951) 83 CLR 402, followedR v
Justices of the Peace at Yarram
ex parte Arnold [1964] VR 31,
consideredVickers v Young [1982] FCA 72
(1982) 65 FLR 260, consideredWilson
v Chambers & Co. Pty Ltd [1926] HCA 15
(1926) 38 CLR 131, consideredWing On
& Co. Ltd v Collector of Customs for New South Wales [1938] HCA 71
(1938) 60 CLR 97,
considered
Judgment (19 paragraphs)
[1]
CRIMINAL LAW - COMMONWEALTH OFFENCES - MANUFACTURE OF EXCISABLE GOODS - FAILURE TO PAY DUTY ON EXCISABLE GOODS - where respondent sentenced for manufacture of tobacco without a manufacturer's licence - where respondent ordered to pay reparation in respect of loss to the Commonwealth resulting from the offence - where reparation order of Magistrate overturned on appeal to District Court - where applicant seeks reinstatement of Magistrate's order - whether there was 'entry for home consumption' for the purposes of s 54 of the Excise Act1901 (Cth) - whether the respondent, as manufacturer or owner, was liable to pay the duty from the time the tobacco was manufactured - whether the Commonwealth suffered a loss "by reason of" the offences
[2]
PRACTICE AND PROCEDURE - EXERCISE OF JUDICIAL DISCRETION - whether the Magistrate erred in the exercise of his discretion to make the reparation order - whether the Magistrate gave sufficient weight to the respondent's means and the actual benefit flowing from the offences to him. Excise Act1901 (Cth), s 54(1), s 58(1A), s 117B, s 161