HIS HONOUR: Jia Li He stands for sentence as a consequence of pleading guilty to a charge that on or about 9 April 2019 at Macquarie Park in this state he had goods in his possession, being tobacco products, knowing that the goods were imported with intent to defraud the revenue. That is an offence contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for the offence is imprisonment for ten years and/or a fine of five times the amount of duty payable. That fine is $11,445,190.
The statement of facts contains this overview:
"On 9 April 2019, following a six-month covert investigation, the Australian Border Force (ABF) executed search warrants on three Kennards Self Storage storage units in Sydney and discovered a total of 1,877,420 imported cigarette sticks and a total of 691.33 kilograms of imported loose leaf tobacco (aka chop chop) (together 'the tobacco products').
Over the preceding months, the tobacco products had been imported into Australia from China, Japan and the Philippines, without the required permits using the postal and cargo systems, and disguised as containing other products to avoid detection (eg children's books and toys). The tobacco products had been imported in this manner with the intention to defraud the Commonwealth revenue. The total amount of tobacco excised that was evaded in relation to the tobacco products was $2,272,192.36.
Mr He jointly possessed the tobacco products that were seized from the four storage units with Ms Bishan Su (born [redacted] and an Australian citizen) ('Ms Su') and Mr Qiaofeng 'David' Wu ('Mr Wu') (born [redacted] and an unlawful alien in Australia at the time of the offence).
Mr He knew that the tobacco products that were seized from the storage units had been imported with the intention to defraud the Commonwealth revenue. Mr He knew that Ms Su and Mr Wu had collected the tobacco products at the time they were imported into Australia and had taken them to storage units for storage. Mr He also knew that Ms Su and Mr Wu had leased [sic] approximately 65 individual post office boxes across Sydney in order to receive tobacco products that were imported by post. Mr He also knew that Ms Su and Mr Wu had leased [sic] the Kennards Self Storage units at Macquarie Park where some of the tobacco products were stored."
There has been a contested fact hearing. That contested fact hearing extended between 5 and 9 July 2021 involving two days of evidence, submissions, the reading of documentary evidence and my giving judgment which has been uploaded at [2021] NSWDC 450. In that judgment I set out the personal circumstances as were known at the time concerning the offender and the circumstances that existed and which called for me to determine the appropriate facts. I found beyond reasonable doubt that the offender was in fact the principal in Australia of the criminal enterprise involved in importing the tobacco products from overseas avoiding the payment of tobacco excise and storing the imported cigarettes and bulk tobacco at the storage units at Macquarie Park and had recruited Mr Wu and Ms Su to work for him in this operation.
From evidence given by Ms Su it is clear that some of the tobacco products were being sold to "customers" in Sydney. The clear purpose of the whole scheme was to avoid the payment of excise to make the imported cigarettes cheap and to sell them with no doubt the offender and anyone with whom he was associated, taking a profit which was in fact an illegal gain and it is likely that the money was being laundered through the casino here in Sydney. I need not reiterate what I said and found in the reported decision to which I have referred.
In R v Zhang [2017] SASCFC 5, Chivell AJ with whom Kourakis CJ and Vanstone J concurred, said this:
"37. Counsel submitted that factors to be taken into account in sentencing for serious revenue offences such as these, should include:
the role of the offender - in particular, it is important to identify whether the defendant was a principal organiser of the criminal operation or merely acting on the instructions of others;
the sophistication of the offending, or lack thereof;
the period over which the offences were committed;
the quantity of the tobacco imported and/or possessed and the amount of duty defrauded or evaded;
whether the loss of revenue has been repaid;
whether the offending involved other illegalities, such as the use of false identities;
whether the defendant was involved in distribution and sale of tobacco products within Australia;
the extent to which the defendant gained financially from his or her offending.
38. I agree that these factors should be taken into account when sentencing for an offence against s 233BABAD of the Customs Act."
In the current case I have found that the offender was the principal organiser of this criminal operation in Australia. He had recruited Mr Wu and Ms Su to act for him. They were his "workers". Whether he had an associate or accomplice or partner overseas is not known. Clearly the tobacco products had to be purchased or otherwise acquired overseas then posted to Australia. At this end of the importation, the principal clearly was the offender. It may be that there was no "partner" overseas, merely that the offender remitted money to others to purchase or otherwise acquire the tobacco problems and remit them by post to Australia. I do not know. All I can say is that in Australia the offender was the principal.
The Crown submitted that this was very sophisticated offending. I could not employ that epithet. Clearly there was planning involved, planning which lessened the chance of the offender's being discovered. Most articles which are imported illegally into Australia need to be collected from some legitimate way of their being brought into Australia, whether that is by collecting a shipping container from a shipping line or collecting parcels that have been flown into Australia as air freight or by otherwise taking possession of articles brought into Australia. Here the offender himself was not going to the post office boxes and collecting the imported tobacco but rather was using Ms Su and Mr Wu to do so. He was also arranging for the imported tobacco or at least most of it to be taken directly to the storage units at Macquarie Park so that they would not be found in his residence. This is fairly typical of those involved in importing illicit substances into Australia. Beyond that however there does not appear to be any great amount of sophistication and, for example, no attempt by the offender to hide his association with Ms Su or Mr Wu. This was a probably small-scale operation but one which effectively avoided over $2 million in tobacco excise. The period over which the offences were committed is unable to be determined with any certainty. The Crown submits that it had been going on for a considerable period of time.
The agreed facts commence with telling me that on 18 October 2018, the Australian Border Force ("ABF") illicit tobacco taskforce received information that Mr Wu rented a storage unit at Kennards Self Storage at Macquarie Park. The storage unit that was rented was numbered J001. The rental agreement was dated 3 July 2018. The observations continued after 18 October 2018. I could not infer that any illicit activities commenced earlier than 3 July 2018 and bearing in mind the onus and standard of proof, I could not find that the illegal activity commenced any earlier than about 18 October 2018. The offender was arrested on 9 April 2019, so the offending conduct could not be seen as being any longer than over a period of some six months.
The quantity of the tobacco imported or possessed and the amount of duty defrauded I have already stated when citing the overview from the agreed facts. However, it must be borne in mind that there was evidence before me which I have accepted the cigarettes at least were being sold from those imported by the offender to "customers" in the Sydney metropolitan area so that the actual number of cigarettes or the actual amount of raw tobacco was probably greater than that found when the search warrants were executed on 9 April 2019. However, how greater is completely unknown, and I will rely solely on what is known from the agreed facts. There is no dispute that the lost revenue has not been repaid to the Commonwealth.
There is no evidence that the offending involved any other illegalities such as the use of false identities. It is true that Ms Su on at least one occasion rented a post office box in her daughter's name, but whether she did that of her own accord or because she was told to do so by the offender I do not know. Clearly David Wu used false names in which to rent post office boxes but considering his immigration status, it is quite likely that he used those false names on his own account. I am not persuaded beyond reasonable doubt that there were any other illegalities used in this criminal enterprise.
The next matter to be considered is whether the offender was involved in the distribution and sale of tobacco products within Australia. From what I have already said, he clearly was.
The final matter to be considered is the extent to which the defendant gained financially from his or her offending. That I do not know. All I do know is that he did not and has not paid the tobacco excise foregone by the Commonwealth, namely the sum of over $2 million to which I have already referred.
This was a serious criminal enterprise, defrauding the revenue and subverting the regime established by the Commonwealth to control the sale of tobacco. A seminal decision is that of the Court of Appeal in R v Saleh [2015] NSWCCA 299. That was a Crown appeal against a sentence passed in this Court by Sweeney DCJ. Her Honour had sentenced the respondent in that case to imprisonment for 20 months, which was suspended upon condition that he entered into a recognisance to be of good behaviour for that period of time. This was in fact a Commonwealth suspended sentence. The offender had committed an offence against s 233BABAD(1). That provision is quoted by RS Hulme AJ at [14] of his reasons on appeal. Subsection (1) provides that:
"A person commits an offence if the person imports goods and the goods are tobacco products and the person imports the goods with the intention of defrauding the revenue."
There is not in my view any great distinction between subs (1) and subs (2) of s 233BABAD of the Customs Act 1901. The case is seminal because there was a review of pre‑existing case law, and essentially it was pointed out that the pre‑existing case law did not adequately reflect the penalties to be imposed.
RS Hulme AJ with whom Johnson J agreed, said this at [30]:
"In support of this ground [manifest inadequacy] counsel for the Appellant drew attention to the introduction of s 233BABAD of the Customs Act in 2012 and to the rationale advanced by the Attorney General at the time, viz. the need for penalties to provide a strong deterrent against illegal importation. It was pointed out also that the use of tobacco was something that the legislature had clearly indicated a desire to discourage by the imposition of increased duties, and that importations such as that assisted by the respondent were calculated to contribute to tobacco being available at cheaper prices, increasing its use as a result. Other potentially harmful consequences of the smuggling of tobacco were referred to by Sweeney DCJ."
At [32] his Honour pointed out that the enactment of s 233BABAD increased the penalty fivefold and to use the words of the explanatory memorandum to the amending Act, was to "provide a strong deterrent to criminals and…demonstrate the seriousness of smuggling acts." After reviewing earlier sentences his Honour said at [35]:
"…those previous sentences may be used to establish the range of sentences that have been imposed in the past but they do not necessarily establish that the range is correct. And while it is proper to have regard to the accumulated wisdom of the judges who have imposed those sentences it is also appropriate to bear in mind that almost all were single judge decisions, most in the District or equivalent courts and there is a tendency for any sentencing pattern to be followed."
In the following paragraph his Honour pointed out that this was the first occasion in which the relevant section of the Customs Act had been considered by an appellate court. At [47] his Honour said this:
"Premeditated offending for the rewards or benefits that criminality may bring is a calculated risk. As the cases mentioned show, the rewards are not infrequently enormous. The criminality is often difficult to detect and it is impossible to believe that many people do not get away with it. Accordingly it behoves the courts to ensure that the penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend."
In other words, his Honour was pointing out that not only was specific deterrence required but also sentences passed for offences against this section must carry with it a large amount of general deterrence. RS Hulme AJ went on to point out that the respondent's criminality in that case required a sentence of imprisonment for three years with a non-parole period of two years. Beech-Jones J dissented but only as to the new sentence to be imposed. His Honour (as he then was) agreed that the suspended sentence was inadequate but would have passed a lesser sentence than that adopted by the majority. In [3] of his reasons, his Honour said this:
"An offence against s 233BABAD(1) is effectively an offence against the revenue and any consideration of an offence must be considered in that context. One factor affecting any characterisation of an offender's conduct is the amount of tax that was the object of the defrauding. In this case the amount involved, $996,997.50, was very large. Another is the scale of the enterprise in which Mr Saleh was involved. Bearing in mind the amount of tobacco and the logistics of the importation, the scale was substantial."
However, his Honour went on to point out that Mr Saleh was charged as an aider and abettor. Both the indictment to which he had pleaded and the agreed statement of facts limited the period of his involvement to 12 days between 15 March 2013 and 27 March 2013. His Honour went on to say this:
"Further, while there is reason to be doubtful of his assertion that he was only to receive $3,000 for his participation in the offence, there is no reason to conclude that he was likely to realise anything like the amount of tax that was sought to be avoided by the importation."
However, his Honour did accept that Saleh's level of involvement was not minimal but was "reasonably significant". Mr Saleh's limited role must be compared to the role played by the current offender in the current crime.
I have been referred by the Crown not only to R v Saleh, but also to Young v The Queen [2016] VSCA 149, Hussein v The Queen [2016] VSCA 212, R v Zhang to which I have already referred, Samardali v The Queen [2018] WASCA 220, R v Medalian [2019] SASCFC 40, Merhi v R [2019] NSWCCA 322, DPP v Ma [2020] VCC 582, Jabal v DPP(Cth) [2021] VSCA 33. I have also considered Assi v R; Jomaa v R [2021] NSWCCA 181 although the offending there was quite different to the offending in the current case. Of course every case depends upon its own facts, but consistently with the authorities to which I have referred a full-time custodial sentence is called for by the facts of this case. The offending was substantial, and a principal offender was this offender, he was the principal in the organisation in Australia.
At the time of his arrest the offender was 47 years old, he is now 49 years old. As I pointed out earlier today in refusing an adjournment application, some two and a half years have passed since the offender was arrested and today's sentencing hearing. All told, the offender spent two days in custody. He was arrested on 9 April 2019 and released on bail on the following day 10 April 2019. The Commonwealth Crown sentence summary refers to his period of time in custody as being "one night", but that must be seen as being two days. He was deprived of his liberty on two different days and the common law provides that the law knows no part of a day, and therefore he has spent two days in custody.
Since being released on bail, the offender has been divorced from his second wife. He said to the Community Corrections Officer, Ms Jillian Daw, who interviewed him on 7 September 2021 for the purposes of preparing a sentencing assessment report, that his second wife left him when she learnt of his offending behaviour. However, the next sentence in the sentencing assessment report is this:
"He added that he is complying with all conditions of the Apprehended Violence Order (AVO) taken out by his wife."
Why there should be an AVO if the offender's wife merely left him because of his arrest on criminal charges is completely unknown. The offender went on to tell Ms Daw that whilst he would like a reconciliation, he is not optimistic that that will occur. The offender now lives at Macquarie Park, according to the sentencing assessment report he lives in accommodation owned by his brother. The offender is currently working for his brother.
His brother has two Chinese restaurants, one at Maroubra where his brother lives and the other at North Ryde. The offender said in his evidence today that he manages the restaurant at West Ryde, and works there from 10am to 3pm and again from 5pm to 10pm six days each week. He told me that his day off generally was Monday. He also referred to the business as being his own, and of his being able to take time off when he wished, or needed, to in order to attend to the needs of his elderly parents.
In evidence is a communication between the offender's solicitor and the Star City Casino. The offender's solicitor pointed out to an officer at the Star City Casino that his instructions were that the offender had banned himself from entering the Star Casino "about August 2020". The Star Casino replied that that was correct, but also pointed out that the offender was also excluded by the Commissioner of Police on 3 November 2020 and that exclusion order cannot be either reviewed or appealed from.
Much has been made of the ill health of the offender and of his parents. The only evidence about his own health is Exhibit S12, a letter from Dr Ken Ho, an endocrinologist and clinical associate professor at Macquarie University. Dr Ho diagnoses type 2 diabetes mellitus, which was diagnosed on 1 February 2014. Exhibit S12 lists the various medications taken by the offender, one of which includes a prefilled pen for injecting units of a form of insulin at dinnertime. According to the letter, the offender has poorly controlled diabetes. At the time the letter was written, the offender had yet to receive his COVID-19 vaccinations. However, I granted the offender an adjournment on 13 September 2021 so that that could be attended to.
There is no evidence before me that Justice Health would be unable to assist the offender in controlling his diabetes, despite valiant submissions from Mr Smith SC in that regard. Late onset diabetes mellitus is a common problem for many men in the second half of their life and there is nothing that I have seen that indicates that it is not a condition for which Justice Health cannot provide treatment, after all it does not require the sort of medication which much be controlled in the correctional system, medication which can satisfy for example, addiction to illicit drugs. The extent of the ill health of his parents has also been much debated. I discussed that in R (Cth) v Jia Li He (No. 2) [2021] NSWDC 769, and refused an adjournment in terms to enable the appellant to await further surgery to be practiced upon his father which is only to be day surgery, as some problem related to the father having a suprapubic catheter to control his urinary retention problem.
The offender told Ms Daw, when she was making the sentencing assessment report, that he cares for his elderly parents both of whom have mental issues. Confirmation of that was given to Ms Daw by the offender's brother, but for reasons I gave early today it appears to me that there was a fair amount of hyperbole involved in the description of the ailments of the offender's parents and the extent of the "care" that he provides to his elderly parents.
Before turning to the checklist provided by s 16A(2) of the Crimes Act 1914 (Cth), I should discuss one further matter which has been the subject of submissions and debate, that is the extent of the discount to be given to the offender for his plea of guilty. Clearly, the plea of guilty was entered late. The plea appears only to have been agreed to within some four days, perhaps a bit longer, before the time fixed for the commencement of a two-week hearing.
One's automatic reaction as a judge is to believe that a 10% reduction would be called for in those circumstances. However, the utilitarian value of the plea was probably greater, bearing in mind that the contested facts hearing before a judge alone involving evidence only from Ms Su and the offender took a week, a full contested hearing before a jury would probably have exceeded the estimate of two weeks and gone longer, especially if the offender chose to give evidence at trial. One can see in those circumstances that the utilitarian value of the plea would be greater.
On the other hand, learned senior counsel for the offender submits that a discount of 25% should be allowed and points out that the original indictment contained four counts, but the indictment to which he pleaded guilty contains only one count. He points out that the one count was only offered to the offender by the Crown on 25 February 2021 as is shown by Exhibit S3.
It is always open for the parties to plea bargain from the outset. Although the original four counts were reduced to one by withdrawing the fourth count and rolling up counts 1, 2 and 3 into one count, the offending is exactly the same no matter how many counts are involved in the indictment. The offender stands for sentence as a consequence of his plea to the count before me, which encompasses all of the offending involved in at least the first three counts, and from my short reading of the original indictment, probably the fourth count as well.
The argument advanced on behalf of the offender is, in this regard, tenuous. However, I am prepared to allow a discount of 15% in the circumstances of this case. I do so with some reluctance, because the utilitarian value of the plea has, in my view, been lessened by the need to have the contested facts hearing which was not decided in the offender's favour. However, I believe that, as I said, it only caused me reluctance in fixing a discount of 15%.
I turn now to the statutory checklist contained in s 16A(2) of the Crimes Act 1914 (Cth). Paragraph (a) requires me to take into account the nature and the circumstances of the offence. I have very shortly referred to them in these reasons, but these reasons must incorporate those that I previously gave when considering the contested facts hearing. There are no other offences that are required or needed to be taken into account. Paragraph (c) requires that 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 course of conduct. Of course, here the whole crime alleged is one continuing course of conduct. It is not, for example, as if the offender was the member of an outlaw motorcycle gang who, from time to time, is involved in standover tactics or drug trafficking or the like and only one matter was to be taken into account at the current time.
Paragraph (d) requires me to take into account the personal circumstances of any victim of the offence, and par (e) requires me to take into account any injury, loss or damage resulting from the offence. Although there is no personal victim, offences against the revenue are not victimless crimes. They undermine the integrity of our taxation system and the ability of governments to raise revenue in a fair and equitable way; Barakat v DPP (Cth) [2020] VSCA 185 at [53]. Furthermore, the importation of tobacco is tightly controlled by the Commonwealth Government to protect the health of citizens in an endeavour to stop the consumption of tobacco products which the government deems to be prejudicial to the health of the nation, and there is much medical support for that contention. The Court does not make policy, policy is made by Parliament. The illegal importation of tobacco undermines the system of control of tobacco into Australia, and therefore offers a threat to the health of all those who may partake of the illegally imported tobacco. Necessarily, there is no victim impact statement in this case.
Paragraph (f) requires me to take into account the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner. The offender has made no effort, as far as I can see, to make any reparation for the injury that he has caused to our society. I find it very difficult to see, in what has been said and in what he has done, any real admission of remorse for the crime he has committed. Paragraph (fa) of s 16A(2) is currently irrelevant.
I have taken into account the fact that the offender has pleaded guilty to the charge, and I am allowing him a discount for that plea. I am unaware of any other cooperation that the offender has given to law enforcement agencies in the investigation of this offence or any other offences. Indeed, there is no evidence of any such cooperation at all, and the contested facts hearing represents an attempt by him to try to hide the extent of his criminality. However, I cannot take that actual matter into account. To do so would be to deprive the offender of one of his rights. However, I again stress that there has been no cooperation given to law enforcement authorities, other than by the late plea of guilty.
Paragraph (j) of the subsection requires me to take into account the deterrent effect of the sentence on the offender himself, and the following paragraph requires me to take into account the general deterrence. I have already discussed both specific and general deterrence and pointed out the authorities make it clear that in cases of this nature that is an extremely important consideration.
Paragraph (k) requires me to ensure that the person is adequately punished for his offence, and I am seeking to do so in these reasons and in the sentence that I shall pass. Paragraph (m) requires me to take into account the personal considerations of the offender, his character, antecedents, means and physical and mental condition. I have mentioned the relevant physical condition about which there have been submissions and I take that into account.
Paragraph (n) requires me to take into account the prospect of rehabilitation of the person. The evidence before me does not enable me to reach any concluded view. As I cannot see any real contrition, it is hard to know whether there will be any effective rehabilitation. Perhaps the best pointer to rehabilitation will be a sentence to be imposed, if it deters this offender from offending again in the same way then it will achieve its effect. Furthermore, the offender, as a convicted criminal, will be under surveillance of a greater nature than most other members of our community by law enforcement authorities. He will find it harder to do what he has done in the past because his behaviour has now been detected and he is about to be punished.
The final paragraph of s 16A(2) requires me to take into account the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. I have already adverted to those matters. Suffice to say that the law still is that that can only be taken into account if the matter is one of extraordinary or special circumstances. That was a matter raised by Beech-Jones J in R v Saleh at [10], where his Honour said this:
"The second matter concerns the position of Mr Saleh's family. At the time he was sentenced in the District Court Mr Saleh and his partner were responsible for four children. Since then his partner has given birth. Subsection 16A(2)(p) of the Crimes Act 1914 obliges a court sentencing for a Federal offence to consider the 'probable effect that any sentence or order under consideration would have on any of the person's family or dependants.'
In [2013] NSWCCA 222 at [141] I concluded that the line of authority that held that provision was only applicable if exceptional circumstances were present was clearly wrong and should not be followed. Instead the provision should be applied according to its terms. I maintained that position in Elshani v R [2015] NSWCCA 254 at [40] to [41]. I adhere to that view."
Owing to his recent elevation, his Honour may be in a position to change the law and headed in that direction. However, as the authorities currently stand his Honour's view is in the minority and I must adhere to the decided case law which establishes that only in exceptional circumstances can I take into account the matter referred to in s 16A(2)(p).
I have reached the view that I should start this sentencing exercise with a theoretical head sentence of three years and six months. I discount that by 15% and round that discount up in favour of the offender. That reduces the head sentence to two years and 11 months if my mathematics be correct, which is always problematical. I am, under the Federal legislation, required to fix a release on recognisance order rather than a non-parole period, as the sentence is less than three years.
I have been addressed at length by Mr Smith SC on the question of whether an Intensive Corrections Order ("ICO") ought be imposed. An ICO can only be imposed if the head sentence is two years or less. Here, I have determined that the head sentence is two years and 11 months, therefore an ICO is not available. The question becomes, of course, when should the release on recognisance occur. I have reached the view that the offender should spend two years in custody when he will be released on recognisance.
Jia Li He, on the charge that on or about 9 April 2019 at Macquarie Park in this State you had goods in your possession being tobacco products knowing that the goods were imported with the intent to defraud the revenue, you are convicted. I sentence you to imprisonment for a period of two years and 11 months commencing on 13 October 2021 and expiring on 12 September 2024. You are to be released on recognisance on 12 October 2023 on your giving security in the sum of $1,000.
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Decision last updated: 30 March 2022