The matter of Xiang Wu came before me today for sentence; the offender having pleaded guilty at the Local Court to three offences, for which he was committed for sentence to this Court. There are a number of other offences, four in all, to be taken into account on a s 16BA Crimes Act 1914 (Cth) schedule, or Form. Hereinafter, I will refer to the Crimes Act 1914 (Cth) as, "the Act"; of course, as the principal relevant legislative provision to this sentencing exercise. As the offender pleaded guilty, in my view, at the first reasonable opportunity, the offender shall receive a discount of 25% upon what would otherwise be the appropriate sentence to recognise the utilitarian benefit of the pleas of guilty, and his facilitation of the course of justice by his pleas and his cooperation, if I could use that expression in a loose way, by reason of admissions made to investigators, in respect of part of the matters that are before me.
The offender was born in January 1984. The offences with which I am concerned were committed between October 2018 and mid‑February 2019. There is a detailed Statement of Facts from the Commonwealth Director of Public Prosecutions office, which has been most helpful. I will summarise that. I do not need to set out all of the details when I recite the facts; although, I am required in considering the facts of the matter, to comply with the requirements that are cast upon me by s 16A of the Crimes Act 1914 (Cth); and as is pointed out, the sentencing of the offender proceeds in accordance with the relevant provisions in pt P1B of that Act, which I will refer to later.
Of the three offences for sentence, two are contrary to a relevant provision of the Customs Act 1901 (Cth). Those two offences are concerned in short terms, with importing tobacco products with intent to defraud the revenue. The third offence is an offence of possessing a false foreign travel document; in the prisoner's case, false passports from China, and that is an offence contrary to s 22 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). Each offence carries a maximum penalty of ten years' imprisonment.
The Crown informed me, although it was not a matter to be dwelt upon, that in respect of the imported tobacco products with intent to defraud offences, the relevant pecuniary penalty is calculated by reference to the extent of the revenue that was defeated by the actions of the offender. With regard to the passport offence, there is a pecuniary penalty of 1,000 penalty units. In the circumstances, it is not practical to impose any pecuniary penalties upon the prisoner; firstly, by reason of the fact that he will be serving a term of imprisonment; and secondly, he appears to me not to have the means to meet any pecuniary penalty passed upon him. The offences on the s 16BA Form are three offences of importing tobacco with intent to defraud the revenue, which of course carry, if dealt with as principal offences, the same maximum penalty as I earlier identified. The fourth offence is an offence of possessing suspected proceeds of crime; less than $100,000 in this case; $10,000 in cash, and I am informed by the Crown that that has a maximum penalty of two years' imprisonment, if it was to be dealt with as a discreet offence.
With regard to the matters on the Form, the treatment of those matters in the sentencing exercise is to take them into account, I am informed by the Crown, in relation to the sequence 4 offence; that is, the import tobacco products with intent to defraud revenue offence, to which I earlier referred. The Crown, itself, in its written submissions, very kindly footnotes reference to the "Guideline" Judgment in relation Form 1 matters under State Law; that is, the decision of the Court of Criminal Appeal reported as Attorney General's Application (No 1) [2002] 56 NSWLR 147.
The pertinent discussion by the Court, in relation to the principles to be applied in such matters is principally set out at [18], [44]. I appreciate, of course, their Honours were dealing with a different legislative provision; but, in essence, the same general principles apply, whether one is taking into account matters on a Form 1 under State Law, or under a form of the type that I am dealing with at the moment. There is a distinction in the Commonwealth provision and permits, as the Crown very kindly pointed out to me today, matters to be taken into account in relation to a number of offences; but it seems to me appropriate that these matters be taken into account only in respect of one principal offence. It makes it easier for the purposes of properly calculating a sentence.
It has been pointed out in the Guideline Judgment, when matters are taken into account on a form or a schedule, it will entitle the Court to give greater weight to the need for personal deterrence and the community's entitlement to extract retribution, and it thus would generally mean a more significant penalty to be imposed on the principal offence, than that it stood alone. This is because, usually, there would be a greater need to put weight upon deterrence and retribution. The Chief Justice pointed out that the entire point of the process is usually to impose a longer sentence than would have been imposed if a primary sentence had stood alone. Sometimes the additional penalty will be small. Sometimes it will be substantial.
His Honour also pointed out that where one is concerned with the appropriate sentence for the principal offence, not to afford a particular weight, in numerical terms, upon the matter that has been taken into account on a Form 1. In relation to this matter, I have approached the sentencing on the basis that the various offences, both for sentence and on the Form 1, relating to importing tobacco products with intent to defraud, represents a course of conduct by the offender, over the three months or so, covered by the dates of the charges.
It was the same modus operandi, in relation to each offence, as the facts make that clear; and it is quite clear that the offender was seeking to import into Australia tobacco products in relatively modest quantities on each occasion; however, to accumulate at least a substantial quantity of such tobacco products for on sale in Australia. The possession of the sum of $10,000, at the time of the search of the prisoner's property, giving rise to the proceeds of crime offence, reflects part of the profit that the offender had made.
I turn briefly to the facts, to put what I said in proper perspective. As the executive summary the Crown points out, between 27 October and about 14 February 2019, the prisoner illegally imported tobacco to five different parcel lockers, or parcel points, using false names. The offender, in fact, was intercepted by the authorities, flying into Australia on 12 February 2019, and within his luggage were located the two false passports that I have earlier referred to. A search warrant executed at the offender's home on 15 February located the $10,000 in $50 notes, and it was then that the offender was arrested and taken into custody. Once he had been detected at the airport with the false passports, he was, apparently, allowed to enter Australia and go about his business, at least for two or three days.
In this particular sentencing exercise, of course, totality of criminality looms very large, and one must be realistic in the context of what I have said about a course of conduct, at least in relation to the tobacco offences, if I might call them that. There are multiple offences actually committed at various points. But they all relate to the one modus operandi. In relation to the issue of totality, it has been the subject of observations by various authorities in the High Court and in the New South Wales Court of Criminal Appeal.
I need only, for the present purposes, refer to the decision Johnson v The Queen [2004] 78 ALJR 616; the earlier decision of Mill v The Queen [1988] 166 CLR 59; and the summary of principles set out by Hall J in his 2010 decision in R v XX (2009) A Crim R 38, particularly at [52] of that judgment, where his Honour surveys a range of preceding authorities, setting out different principles. Of particular significance, in my view, in the context of dealing with totality of criminality in the context of sentencing for a large number of offences, including taking into account matters on a Form 1, are the observations of Street CJ, in the R v Holder [1983] 3 NSWLR 245. There his Honour, at 260, referred to the practicalities of applying the concept of "totality of sentencing".
His view of the matter was expressly adopted by the High Court in Mill v The Queen, where the relevant passage I am about to cite was set out in detail. Of course, Mill v The Queen reflected upon what D. A. Thomas, a famous English legal academic, had written about a totality of sentencing, in his landmark text on "Sentencing".
Street CJ said this, in terms of dealing with this issue in a practical way:
"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual sentence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences, and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
With regard to what is described as the sequence 1 offence, the offence of importing tobacco with intent to defraud the revenue, the offender had, by using a false name, set up a delivery place at a "parcel point", as it is described, at a chemist shop in Belmore. A consignment was sent to the relevant address, and it was intercepted by ADF officers on 14 March 2019, that is after the offender had been arrested, and the link could be made with the other relevant parcel points. What was found in that interception was in total 4,000 "sticks", or individual cigarettes, intermingled with clothing; and the relevant relationship of the offender was quickly established.
For example, the parcel point record showed that payments for the account had been made on a credit card in the offender's name. I note, in relation to the circumstances of the arrest of the offender, that in his motor vehicle, during the execution of the search warrant, as I would understand it, on 15 February when he was taken into custody, a quantity of cigarettes were found in the boot; although, it is not established that they were necessarily imported cigarettes that were imported without payment of revenue, and the quantity is not known.
The total amount of revenue "evaded", in relation to those 4,000 cigarettes, is calculated by the Crown to be $3,230.48. The revenue in question is, of course, "excise" duty that the Crown has not pressed issues relating to the non‑payment of the GST. The second sequence offences are the passport offences. I mentioned this occurred when the offender was intercepted flying into Australia from China. He was coming through Melbourne Airport, and two passports were found purporting to belong to two named individuals, where there was an identical photograph in each passport of an Asian male. The Department of Home Affairs subsequently confirmed these passports are "counterfeit".
When interviewed on 12 February 2019, the offender made admissions. He admitted to knowing the identity of the person shown in the photographs, and he admitted to bringing the passports into the country. It is not entirely clear for what purpose these passports were brought into the country by the offender. I could not conclude that he was going to sell them.
He certainly would seem to be proposing to pass them on to somebody, presumably the person shown by photograph in the passports. But I could not conclude on the evidence available to me that the creation of the counterfeit passports was for some deeply sinister purpose, such as terrorism or giving effect to a further criminal activity. The evidence is unclear. When the offender's bag was searched, a large number of parcel point addresses were found on a handwritten document, but there is no evidence that the offender had engaged all those parcel point addresses for his business. I might describe it, of importing quantities of tobacco.
Sequence 4, the third offence for sentence, and I will call it the 'principal offence', connected to the matters on the Form or schedule, concerned the Frenchs Forest parcel locker, in a false name, which was connected to the appellant. In that particular place were found 1,200 cigarette sticks of different makes of cigarette, presumably Chinese brands. This was a parcel point set up by the offender and connected to the offender by the available evidence.
The amount of duty evaded, in relation to sequence 4, was $968.71. A modest amount. But in sentencing the offender for the principal offence, I am required to take in the other offences related to tobacco sent to parcel points. For example, in sequence 3, one of the schedule offences, the investigation revealed a number of consignments of cigarette sticks, numbering 4,800 in all, and the amount of duty, or excise, avoided was $3,576.
Sequence 5 concerned a parcel point at Leichardt, where investigations revealed it was linked to the offender. The total amount of cigarettes located there was 3,000 amounting to $2,422.86 in excise avoided; and finally, sequence 6 concerned a parcel point at another pharmacy, where there was found 12,800 cigarettes, and the amount of duty evaded was $10,332.93. That is, although on a Form 1, the most significant avoidance of excise duty. The total amount of excise sought to be avoided, by the cigarettes that were located, amounts to $20,831.55.
The final matter for consideration in this sentencing exercise relates to the $10,000 found at the offender's home when a search warrant was executed. It was found on a shelf in a cupboard. The notes were wrapped up in a blanket, obviously, in an amateurish way, secreted; and the Crown statement of facts sets out matters relating to the offender's tax. Returns would show that that amount of cash is entirely incompatible with the extent of income declared to the Australian Tax Office, and it seems to me there seems no dispute that this $10,000 was related to the scheme that the offender had been involved in.
This was clearly an ongoing scheme that was interrupted by the Australian Federal Police. I am looking at the offences in the context of an ongoing criminal exercise, interrupted by the work of the Australian officials. Although I am not here to sentence him on the basis of crimes that he is not charged with, I bear in mind that the cessation of his criminal activity was brought about by the investigation, not by a withdrawal from criminal activity by the offender.
When the offender was arrested on 15 February, he declined to participate in an interview. But, as I said, he has pleaded guilty at the Local Court and has been committed for sentence without a great deal of difficulty. The offender, as I earlier pointed out, was born in early 1984. On my calculation, that means that at the present time, he is 35 years of age. The offences were committed between the ages of 34 and 35. He has a minor criminal history and in fact, it is completely irrelevant to this sentencing exercise.
I am prepared to accept that before embarking upon this course of criminal conduct, he was a person of prior good character. He has a finding of guilt for driving while suspended, for which he received a s 10 bond. There are no prior convictions or findings of guilt for matters of dishonesty or defeating revenue. In relation to the issue of his character, I have borne in mind the material that comes from his wife and another person who knows him. His wife has been married to him since 2008, and they have two children one born in 2014, who would be, on my calculation, five now. The other child born in October 2017 would be two.
They, apparently, met at Sydney University when they were both foreign students; graduated in 2008 but returned to China. On her account, which I am prepared to accept, they returned to Australia in 2012, once they had received permanent residency. The offender opened up a cleaning business, and his wife involved herself in employment. The offender was the primary income earner, but the cleaning business finally failed to be successful. They received financial assistance from the prisoner's mother to purchase a house.
They had a very large mortgage with an Australian bank for the purchase of the house. The wife describes it as being around about $900,000, and the wife says that they fell into financial difficulty under the weight of the mortgage payments and the unsuccessful business. She said the offender was always trying to find a way to make money to help the family and began importing goods from China to sell, but the wife had no idea that it involved illegality. The prisoner's wife was in China when the offender was arrested.
Since his arrest, he has been in custody. As one would expect, he has not had contact with his children. Although the family live in Sydney, it is a lot better for them not to visit him in custody, and I can understand the rationale of that. There is a great deal of shame attached to him being in custody, and whilst this is a circumstance, I suppose, of hardship, it is not one of any exceptional character as the Crown points out in its written submissions. Although it reserved its position in that regard, but it is self‑evidently not an exceptional matter. The family have the opportunity to visit the offender whilst in custody. They choose not to, and whilst I accept it is a matter to be taken into account, it is not a matter of great significance.
The wife refers to implications for the family of the prisoner's conduct and I cannot fashion a sentence to meet the requirement of Commonwealth legislation that may permit the prisoner to remain in the country. I have another referee that speaks to the offender's good character. She observes that the offender was a person of integrity and dignity, had been a role model for his young sons. She was aware of his financial hardships. He had a catering business, as well as his cleaning business. Neither did well. I note those matters as providing a context for the offending, but the truth of the matter is, people just cannot go around committing offences, simply to accommodate some financial difficulty or distress, otherwise our society would be chaos. The offender has expressed regret and remorse to his wife and to the family friend, and I accept that he is remorseful for his conduct.
The extent to which that remorse arises from his arrest, in relation to the matter, is of course, not able to be measured. But I can only accept what is before me in that regard. There is a Sentence Assessment Report that has been prepared by Community Corrections. The offender did not give evidence before me, not that I hold that against him. There is no psychiatric, or psychological, material to suggest the offender has any relevant mental illness or disability. He is a graduate from Sydney University. I understand he is a man of reasonable intelligence. The report reflects his state, in relationship with his wife, and reflects upon his financial difficulties.
The offender suffered a back injury in 2016, which, apparently, contributed to the demise of his cleaning business and he sought other ways to make an income to meet his financial commitments. He expressed regret to the Community Corrections officer for his offending behaviour and has insight into his offending and the consequence it had for the deprivation of revenue for the community at large, for the wider community good. Although the Community Corrections officer noted that his primary concern appeared to be how his criminal record would impact upon future plans.
That having been said, of course, clearly the offender knows that by being arrested, in relation to these matters, there are implications beyond the sentencing exercise that he ultimately had to undertake; not that he would have been familiar with sentencing in Australia. In fact, and I am not making comment upon this in criticism or in support of the offender's position, but the offender took the view that the offences he committed, in relation to the importation of tobacco, could be met, if that is the correct expression, by paying outstanding tax on the tobacco. Thus leading to his release. Ignorance of the law, of course, is never a defence, and defeat of the revenue is a significant matter, as the maximum penalties make clear.
He expressed willingness to cooperate with Community Corrections, which I have taken into account, and undertake community service work, if required. For obvious reasons, given his stable circumstances, his level of education and absence of criminal history, he is assessed at low risk of reoffending, and I accept that to be true and I have taken that into account. I accept, for the purposes of this sentencing exercise, that he has good prospects of rehabilitation, and I accept that he is unlikely to reoffend. The salutary experience of being in custody will no doubt weigh upon him into the future, but how he is going to meet his financial difficulties in the future on his release, is another matter.
That is one of the matters I have actually taken into account in assessing the minimum term, if I might call it that, by reference to the total sentence I have concluded is appropriate and the extent of supervision required. He will need professional assistance to adjust to community living, having been in prison for the first time. He will need professional assistance, in my view, to assist in relation to sorting out his financial affairs, perhaps to find employment.
He does not have present criminogenic factors, such as drug addiction or alcohol addiction. There is no direct evidence of any gambling addiction. There is no material upon which I can act to conclude that his financial ways were entirely self‑inflicted. It seems as though he is very much a victim of circumstance, in that regard, but as I said earlier, the fact that one is a person with financial difficulties is not an excuse to go off committing crimes; and of course, the issue of the importation of tobacco products, particularly from China, is a significant matter of concern to Commonwealth authorities and such would be to the Courts, reflected in a number of the comparative cases to which I have been referred and cases with which I have personal knowledge.
I will come back, briefly, to the comparative cases, but I have just placed on the record ‑ I would have thought the Commonwealth Crown would already know this ‑ but I conducted a trial earlier this year, in relation to a gentleman called Quingtao Liu. The trial ran for nearly a month. He pleaded not guilty, of course. He gave evidence in his own defence.
He was involved in a specific importation that involved 7,445,400 cigarettes, contained within cartons of cigarettes, reflecting brands of cigarettes manufactured in China. Although, some of those brands, from memory, were brands that we are familiar with in Australia, such as Marlboro cigarettes and the like. The total amount of duty evaded, as I understand it from the facts that I found on the information available to me when I sentenced him on 20 June, was $4,595,747.50.
I also had to sentence his co‑accused, who gave evidence for the Crown in that matter, Mr Li, who was a young Chinese student, whose family knew the prisoner from China, and who initially started working for the other prisoner in his removalist business. I should point out Mr Liu, as it turned out, was an illegal immigrant. He had a wife and children in Australia who were citizens, but he was actually illegally in the country. He had overstayed his visa. He was a person who was in legitimate business but moved to hauling cartons of cigarettes for an entrepreneur who had a business at Auburn, and consequently, was intercepted in his role facilitating the importation of a container load of cigarettes hidden within wooden furniture. In any event, I will come back to the comparative sentences.
I am greatly aided, in my consideration of the evidence, that is, by reference to the objective facts and the relevant subjective matters, by the written submissions of the Crown and the defence, and I have taken into account those submissions in determining the appropriate sentence. There does not seem to be really any dispute between the Crown and the defence, as to the principles to be applied. There might be some slight difference, in terms of the interpretation of what the evidence means. But there was no suggestion in the submissions of learned counsel for the prisoner that I could impose some penalty that involved a non‑custodial effect.
The truth of the matter is, with the prisoner having been in custody for this period of time, to give proper credit to that time in custody, the only way that can be done is by imposing terms of imprisonment. But as the Crown points out, that is a term of imprisonment by reference to the maximum penalty acting as a yard stick in the context of the range of activity or offending, that is contemplated by the relevant provisions.
By reference to the comparative sentences that have been provided to me, and my own experience from sentencing Mr Liu and Mr Li, it is quite clear that a number of sentences cover far greater criminality, even if it was concentrated on one day or a few days.
I am required to sentence the offender in accordance with Pt 1B of the Crimes Act 1914 (Cth), as I earlier identified. I must impose a sentence that is of severity appropriate in all the circumstances for each of the offences. By reference to s 16A (1) of the Act, s 16A (2) has a range of issues that I am required to take into account. Not all the matters set out in s 16A (2) of the Act are particularly relevant, but I need to identify some of them. Firstly, the nature and circumstances of the offending ‑ I have set out the facts in relation to the matter. I am mindful of the fact that the prisoner was the principal importer. As the Crown has pointed out, and as is commonly known with importation cases, particularly where people can have varying roles, it is important not to place labels on offending but to identify what the offender did, and it is quite clear that the offender chose parcel points for the receipt of packages of tobacco being sent to the country.
He used false names in relation to each parcel point; however, he used his own credit card on occasions to secure the relevant delivery place. It is quite clear that he was running what I could call, a business, by comparison to other cases I will refer to in a moment, importing relatively modest quantities. But in a number of consignments to build up the numbers of the cigarettes. I have mentioned, in Mr Liu's case, the number of cigarettes being over 7,000,000.
Here I am dealing with, as we calculated earlier, 25,800 cigarettes. That is a lot of cigarettes to smoke, I suppose, if you are not a smoker. But by reference, of course, to the comparative cases, it is a relatively modest number. But then again, the enterprise was interrupted by the good work of the Australian Federal Police. What he was doing was, in effect, importing cigarettes on a modest scale and with each importation, building up the quantity, to make a profit; signified by the $10,000 in his possession.
So far as the passport offences are concerned, I have already referred to the fact he was the principal importer of those, but clearly, those passports were not for him personally. They showed the photograph, in each passport, of a different man, a single man.
I am unable to say whether he was going to sell them or pass them on to a friend. He gave an explanation consistent with knowing that they were false but doing a favour for somebody else. If there was some financial benefit for him, it would follow from his conduct, but I cannot conclude that safely without further evidence. In that regard, by reference to the comparative cases that have been referred to by the Crown, the Crown cited a particular comparative case which included passport offences.
That particular authority is the decision of Ali v The Queen [2011] NSWCCA 60. This was an offender sentenced to six years' imprisonment, with three years and six months non‑parole, in respect of knowingly dealing with the proceeds of crime to be $490,000 and possessing false instruments, with intent to use to defraud. As I would understand it, a such offence is contrary to s 302 of the Crimes Act 1900, and one offence under the Foreign Passports legislation, with which I am now concerned.
The offender, when the police conducted their investigations in relation to his fraudulent activity, found in his possession a foreign travel document, which was a forgery, as I would understand it, being used to support the application for a New South Wales driver's licence. In respect of that offence, the Crown draws my attention to the fact that he was sentenced to an effective sentence of two years' imprisonment, apparently to run concurrently, or partially concurrently, with the other sentences imposed for much greater offending; but what I note in relation to that offending, in terms of using that sentence as a comparative sentence for my purposes, that this man was in the business of "creating and falsifying information, including passports and driver's licences, in order to obtain loans from major banks". So one can see that use of false passports being significantly more serious than the conduct able to be proven in this particular case.
With regard to the maximum penalty, it is a yardstick, and I am very mindful of the legislative and judicial expressions concerning the seriousness of defeating the revenue. In that particular regard, I noted those matters in my judgment in Liu, that I handed down 20 June 2019.
The same legislative expressions, if I could use that term, or the statements of principle behind the legislation as stated in second reading speeches, were drawn to my attention. I accept that the importation of tobacco products undermines the obligation of the Commonwealth to impose duties upon such items imported into the country. The matter has to be judged, however, by regard to the range of conduct contemplated by the section. It is an offence of defrauding the Commonwealth, but like every crime, or crimes, that have to be subject of the sentencing orders, one has to see them in their proper context.
I accept that the motivation for the offences was full financial gain. It was not for any altruistic purpose. The prisoner was not proposing to hand out cigarettes to released prisoners from Silverwater or Long Bay Gaol. I have already made it clear that that's also evident from the subjective case conducted on behalf of the appellant.
I have indicated my reference to the further terms of s 16A (2), but I have noted the contrition of the offender. I have taken into account the plea of guilty as a fact in the matter. It is also a matter where I am entitled to give a discount in accordance with the decisions of the Court of Criminal Appeal.
I wish the Commonwealth would kindly, in reference to this aspect of the matter, bring its written submissions up to date, to reflect what the Court of the Criminal Appeal has said about this matter. It would save itself a great deal of time if it acknowledged that there is a discretion to impose a discount for the utilitarian benefit or of the plea or guilty or facilitating the course of justice. I do not need to be reminded of what Cameron says, in light of the fact that Cameron really has nothing at all to do with Commonwealth law.
Of course, as s 16A (2) identifies in the relevant subparagraph, general deterrence and personal deterrence are significant matters to take into account.
Again, the weight to be given to those matters is to be seen in the context of the character of the offending, and also, the specific offending as it relates to the type of offences for which the offender stands for sentence. I am also required to ensure that the prisoner is adequately punished, as is self‑evident from the orders that I propose.
So far as adequate punishment is concerned, the Crown properly invites me to consider the dictum in Hili v The Queen; Jones v The Queen [2010] 242 CLR 520. In that regard, I would understand it to bring some of the material before me into context. I am required to have regard to the comparative sentences that are relied upon by each of the parties.
With regard to comparative sentencing, I have to carefully weigh up varying objective and subjective circumstances and the roles that the particular people in the context of the gravity of the offending for which they are required to be sentenced. There is considerable circumspection required in relation to take into account other sentences imposed upon other offenders. Whilst I accept the general point made by the Crown that the number of cigarettes, or the amount of duty evaded, is not the end all be all of the sentencing exercise, by reference to comparative cases it is a measurable means of distinguishing between cases, even making allowances for different roles.
The Court of Criminal Appeal has, on a number of occasions, cited caution in relation to reliance upon supposedly comparative cases. I particularly note what McLennan CJ at CL said in Holland v The Queen [2011] NSWCCA 65, particularly at [3], and the decision of R v Gow [2015] NSWCCA 208, particularly in the joint judgment of Basten JA and Hamill J at [35]‑[52]. In Holland, his Honour reflected upon his categorisation of drug importers in the earlier decision of R v De La Rosa [2010] NSWCCA 194, a judgment that still stands so far as his Honour's analysis of relevance of mental illness or disability in sentencing, or at least his summarising of the relevant principles. He, in Holland, however, reflected upon the fact that the categories that he previously identified could not necessarily serve to provide a useful yardstick against which to examine a proposed sentence for the reasons that he gave; and in Gow, of course, Justice Basten himself addressed that issue at [63].
In that regard, just reflecting upon those comparative cases, and quite a number have been provided to me, both decisions of the District Court of New South Wales, and appellant decisions in New South Wales, South Australia, and Victoria. It is a very helpful schedule provided by Mr Wilkinson for the accused. It runs to 13 pages. I will just, for the moment, if the judges do not mind, ignore my colleagues in the District Court and cite some of the appellate decisions that are referred to Samardali v The Queen [2018] WASCA 220. That involved one count of importing tobacco products with intent to defraud, and one count of possessing tobacco products, knowing they had been imported with intent to defraud.
In the case of the importation, it concerned 194 kilograms of tobacco; defrauding revenue in an amount of $162,960.88. The original sentence imposed for that count was two years, eight months, with a non‑parole period of 18 months. In relation to his possession of ten kilograms of tobacco, he was sentenced to 14 months' imprisonment. There was a third count that I need not worry about. The total sentence in effect was three years, two months, with a fine, and that sentence was diminished on appeal because of a failure to properly recognise 'totality' principles.
There is another decision of Zhang v The Queen [2017] SASCFC 5. There were eight offences in total. The amount defrauded from the Commonwealth was in excess of $460,000, a total sentence of two years and seven months' imprisonment, as I understand it, concurrent upon the fixed sentences, leaving a total sentence of four years, with eight months' imprisonment, with a non‑parole period of two years. There, the numbers of cigarettes included 377,000 on one count; on another count of importation 253,920 cigarettes; and having 64,640 cigarettes and 33.269 kilograms of loose tobacco in storage.
Zhang, in fact, is a case that I cited specifically in Liu on its principles, rather than by reference to the appropriate sentence. But the figures provide some guidance, in terms of the comparative quantities of tobacco involved. The matter of Young v The Queen [2016] VSCA 149, possessing tobacco products, knowing that they had been imported, was concerned with 9,000,000 cigarettes and 22,969 kilograms of tobacco. The total revenue evaded was $14,000,000. He was found guilty after trial and sentenced to a total sentence of 24 months' imprisonment.
His appeal, not surprisingly, was dismissed. Then there is a New South Wales decision of R v Saleh [2015] NSWCCA 299, where Mr Saleh ‑ another case I referred to in the decision of Li, the sentencing matter following up on the sentencing of Mr Liu , that involved 2,250 kilograms of loose tobacco. The revenue defrauded was $996,997.50. The offender's role was not of a principal. He was more of a minder than anything. He was sentenced to 20 months' imprisonment, which was suspended, but the Crown appeal against that sentence was upheld, and he was sentenced to three years' imprisonment, with a release on recognizance after two years. Although his role was less than this offender, the total amount of criminality involved in that was significantly greater than is here. They are some of the decisions cited by the defence.
The Crown has taken me to the decision of Saleh, which I have already referred to; the decision of Zhang, which I have already referred to; and the decision of Ali, which I referred to, but it was relied upon by the Crown for a limited purpose.
The comparative sentences provided to me provide some guidance, but one can see ‑ and even though as I said, the quantity of tobacco involved is not determinative - significantly greater criminality involved in the other offending, even if that other offending was confined to a more limited time, and that the prisoner's offending was over a period of time with a number of separate criminal acts.
With regard to the further matters under s 16A (2), I have had regard to the prisoner's character and antecedence in age. I have noted that he was previously a person of good character. There is no exceptional hardship to his family, as I have earlier pointed out. I am required, as the Crown points out, by reference to the decision of Pearce v The Queen [1998] 194 CLR 610, particularly in the majority judgment at [45], to fix an appropriate sentence for each offence, and then turn my mind to the issues of concurrency and/or accumulation, to reflect the totality of criminality; and the Crown very kindly provides an annexure, setting out the general principles arising under Commonwealth law, required to be taken into account. I have already referred to s 16A. I suppose some other matters that I need to take into an account, by reference to s 16A, are the prospects of rehabilitation of the prisoner, which I have already referred to.
I also take into account the cooperation of the prisoner, at least in relation to the investigation of the passport matter and his admissions. It is not cooperation requiring a discrete discount, I hasten to say.
Section 17A of the Crimes Act provides that I shall not pass a sentence of imprisonment, unless having considered all other available sentences. I am satisfied no other sentence is appropriate in the circumstances of the case, and in the context of the period of time over which this offending has occurred, which is a significant matter in the number of acts involved, as reflected in the facts, it seems to me that a term of imprisonment is the only thing that can be imposed and within reason. I have also noted the provisions in the Crown's submissions, in relation to the method of fixing appropriate sentences.
As I said, the defence submissions reflect much of what the Crown has said, and I have already dealt with the facts of the matter as identified in both the Crown and defence submissions. I have also dealt with the personal circumstances of the offender, as reflected in the evidence and the submissions of the defence. I am informed, although it is not made clear in other material, that the offender, in fact, has a Master's degree in Commerce, from Sydney University, which I have taken into account.
I am aware of the circumstances of his family. But I have also pointed out there is nothing exceptional about those circumstances to warrant any special consideration being given to them, although the circumstances of his family are a relevant matter to take into account. They are very much a part of the personal circumstances of the prisoner. His wife's support is a matter that will assist him to adjust to community living. I have dealt with the issues arising under the sentencing assessment report; the time that the prisoner has been in custody.
I have reflected upon his low risk of re-offending. I have noted the import of the comparative cases; and the circumstances of the passport offence, I have already commented upon. I believe I have addressed all those matters that have been raised with me by the parties.
It is, thus, in these circumstances that I have concluded that the total sentence to be imposed upon the prisoner should be two years. The minimum term should be 12 months. The orders I thus make, in relation to this prisoner, is follows:
In relation to the sequence 1 offence, that is one of the import offences, you are convicted; and in respect of that offence, you are sentenced to a term of imprisonment of six months, commencing on 15 February 2019 and expiring on 14 August 2019. In relation to sequence 2, that is the passport offence. You are convicted. You are sentenced to a term of imprisonment of nine months, commencing on 15 April 2019 and expiring on 14 January 2020. In relation to the sequence 4 offence, that is another importation offence, taking into account matters on the s 16BA Form, that is sequences 3, 5, 6 and 7, you are convicted and sentenced to a term of imprisonment of one year, six months, commencing on 15 August 2019 and expiring on 14 February 2021.
I direct that you be released at the expiration of six months of imprisonment of that sentence, expiring on 14 February 2020, upon entering a recognizance, pursuant to s 20 of the Crimes Act 1914 (Cth). To be of good behaviour for a period of 18 months from that date; and to appear for sentence if called upon to do so, in respect of any breach within that certain period. In other words, the recognizance is for longer than the sentence, but I can do that, as I understand it, under Commonwealth law. We should be able to do it under New South Wales law.
A further condition is, that the prisoner accepts the supervision of the New South Wales Community Correction Service for a period of 12 months from the time of release and obey all reasonable directions of the officers of that service.
That is the order that I previously made; the order that I placed on the file. Pursuant to s 48, Proceeds of Crime Act 2002, I direct the prisoner forfeit $10,000 as set out in short minutes of order, dated today, 13 December 2019.
Mr Wu, the total sentence is two years' imprisonment. The minimum term is 12 months. You will be eligible for release on a recognizance to be of good behaviour from 14 February. That bond, in effect, will run for 18 months, but you will be subject to supervision by Community Corrections for 12 months.
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Decision last updated: 10 June 2020