Citation: Comptroller-General of Customs v Parker [No 3] [2006] NSWSC 1269
Court: Supreme Court of New South Wales
Date: 30 November 2006
Judge(s): Simpson J
Background
The defendant was a director and shareholder of companies that imported and distributed alcoholic spirits into Australia. Between August 1987 and May 1990, he personally managed the businesses, maintained documentation, and organised the release of large quantities of spirits onto the domestic market. To conceal those releases and avoid paying customs duty, he created false records.
Following a contested hearing, the court convicted the defendant of fourteen offences under the Customs Act 1901: one count of moving or interfering with goods subject to customs control without authorisation, and thirteen counts of evading duty payable to the Commonwealth. The total duty found to have been evaded exceeded $3.1 million. This judgment dealt solely with the question of what penalties should be imposed.
The Comptroller-General of Customs (the prosecuting party) also sought an order for reparation in the amount of the duty evaded, and an order that the defendant pay the costs of the prosecution.
Legal Issues
- At what multiplier, within the statutory range of two to five times the duty evaded, should the evasion penalties be set?
- Whether the principle of parity with a co-defendant who had settled by deed applied to the defendant's sentencing.
- Whether general and specific deterrence were relevant considerations.
- Whether the significant delay between the offences and sentencing should reduce the penalties.
- Whether the totality principle required any overall reduction.
- Whether reparation and costs orders were appropriate.
Decision
Parity. The defendant argued that his penalties should reflect the outcome reached with a co-defendant, Mr Lawler, who had settled by deed of mediation. The court rejected this argument entirely. The parity principle requires courts to avoid unjustifiable disparity between co-offenders, but it does not demand identical outcomes. Because Mr Lawler's settlement arose from a negotiated deed rather than a contested penalty hearing, no meaningful comparison could be drawn.
Deterrence and character. The court accepted that the defendant had no prior criminal history other than minor traffic matters, and that he was well regarded by his community. However, the offences were deliberate, systematic, and dishonest, directed against the Australian public as a whole. Both general and specific deterrence remained relevant, and the character evidence could not override the gravity of calculated revenue fraud spanning almost three years.
Delay. The proceedings were commenced in 1992, some fourteen years before this penalty judgment. The defendant sought a reduction on account of that delay. The court declined to take delay into account in mitigation, without elaborating further on the basis for that conclusion.
Penalty and totality. The court set the multiplier for each evasion offence at 3.25 times the duty evaded, which the judgment described as somewhat less than the midpoint between the minimum and maximum. The Comptroller was directed to calculate the precise dollar figures. For the single unauthorised movement offence, the court imposed a penalty of $12,000. No separate reduction for totality was applied beyond the choice of multiplier.
Orders Made
- Penalty for each evasion offence: 3.25 times the amount of duty evaded (Comptroller to calculate individual amounts)
- Penalty for the unauthorised movement of goods subject to customs control: $12,000
- Reparation order: payable in the amount of the duty evaded, pursuant to s 21B of the Crimes Act 1914 (Cth)
- Costs order: defendant to pay the plaintiff's costs of the prosecution, pursuant to s 263 of the Customs Act 1901
Key Takeaways
- The parity principle, while well established, does not apply where a co-defendant's outcome was the product of a negotiated deed of settlement rather than contested penalty proceedings.
- Deliberate and systematic customs duty evasion, sustained over nearly three years and involving falsified documentation, was treated as a serious category of offending that warranted a penalty above the statutory minimum.
- Under the Customs Act 1901, evasion offences carry a minimum penalty of twice the duty evaded and a maximum of five times that amount; the court here selected 3.25 times as the appropriate multiplier.
- Extensive delay between the commission of offences and the penalty hearing was not treated as a mitigating factor in this case, though the judgment does not elaborate on the reasoning at length.
- Reparation under s 21B of the Crimes Act 1914 (Cth) and a costs order under s 263 of the Customs Act 1901 were both made without opposition where the prosecution succeeded.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), ss 33(1), 234(1), 234(2), 263
- Crimes Act 1914 (Cth), s 21B
Cases
- Comptroller-General of Customs v Stephen Edward Parker [2006] NSWSC 390 (the earlier conviction judgment)
- CEO of Customs v Coulton [2005] NSWSC 869
- Lowe v The Queen [1984] HCA 46; 154 CLR 606