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District Court 16 August 2019

R v Tieu

[2019] NSWDC 485

DrugsFraud & dishonesty
CRIME SENTENCE

Citation: R v Tieu [2019] NSWDC 485
Court: District Court of New South Wales
Date: 16 August 2019
Judge(s): Colefax SC DCJ

Background

The offender operated a tobacconist shop in Marrickville and associated warehouse premises in Chipping Norton. He became connected to an organised crime group run by the Tran family, which was engaged in the large-scale unlawful importation of illicit tobacco products into Australia without payment of customs duty.

Police executed search warrants in August 2017 at both the shop and the warehouse. Officers found more than half a million illicit cigarettes at the warehouse and nearly 10,000 at the shop. The combined unpaid duty on those products totalled approximately $350,000. The offending had continued for over 18 months.

The offender was charged with possessing tobacco products knowing they had been imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901. He also asked the court to take into account a related matter under a schedule: dealing with money being the proceeds of crime, involving $2,200 in cash found at the warehouse.

  • What was the appropriate sentence for an offence of possessing illicit imported tobacco products contrary to the Customs Act, having regard to objective seriousness, personal circumstances, and mitigating factors?
  • What weight should be given to the offender's traumatic background, untreated post-traumatic stress disorder (PTSD), and early guilty plea?
  • Whether the sentence should be served by way of full-time imprisonment or an intensive correction order (ICO).
  • Whether a reparation order was appropriate in respect of the proceeds of crime schedule matter.

Decision

His Honour assessed the objective seriousness of the offending as falling between the bottom and middle of the range for offences of this type. The offence was difficult to detect, involved a significant sum, and was sustained over an extended period. The court was satisfied that a custodial sentence was unavoidable.

The offender's personal circumstances attracted considerable weight in mitigation. He was born in Cambodia, survived the Khmer Rouge regime as a young child, and arrived in Australia at age 13 after time in a Thai refugee camp. He was extensively bullied at high school. The combined trauma of his childhood and school experiences had produced untreated PTSD. His Honour accepted the psychologist's evidence that PTSD can weaken resolve and contribute to poor decision-making, noting this explained but did not excuse the conduct. The offender had no prior criminal history, had worked hard throughout his adult life, entered a guilty plea at the earliest opportunity, and expressed genuine remorse. His prospects of rehabilitation were assessed as good, conditional on receiving PTSD treatment.

The dysfunctional background, as described in High Court guidance on sentencing, reduced the offender's moral culpability and moderated the weight given to general deterrence. Specific deterrence, however, remained fully engaged. Before the plea discount, the sentence would have been 2 years and 8 months. The early guilty plea reduced the term to 2 years imprisonment. The court was satisfied that community safety would be better served by the sentence being served as an intensive correction order rather than by full-time custody.

Orders Made

  • 2 years imprisonment imposed by way of an intensive correction order, commencing 16 August 2019.
  • Standard mandatory conditions: no further offences; submission to supervision by a community corrections officer.
  • Additional condition: 500 hours community service.
  • Additional condition: attendance upon the offender's clinical psychologist to undertake the identified treatment plan, continuing for as long as required and with full compliance with recommended treatment.
  • Reparation order of $2,200 in respect of the proceeds of crime schedule matter.
  • Offender ordered to report to the officer-in-charge of Liverpool Community Corrections by 19 August 2019 at 11am.

Key Takeaways

  • The District Court confirmed that possession of illicit imported tobacco products over an extended period, with unpaid duty approaching $350,000, will ordinarily attract a custodial sentence, regardless of an offender's otherwise good character.
  • A dysfunctional background within the meaning identified by the High Court can reduce an offender's moral culpability and moderate the weight given to general deterrence, even where specific deterrence remains a significant consideration.
  • Untreated PTSD arising from serious childhood trauma was accepted as a relevant mitigating factor in sentencing, on the basis that it can impair decision-making and contribute to offending behaviour, though it does not excuse that behaviour.
  • An early guilty plea produced a meaningful sentencing discount, reducing the term from 2 years and 8 months to 2 years.
  • Where full-time custody is not required to protect community safety, an intensive correction order may be imposed, with conditions tailored to the individual offender's circumstances, including mandatory psychological treatment.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BABAD(2)
- Criminal Code Act 1995 (Cth), s 400.7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 16BA (schedule offence)

Cases: No cases were cited in the judgment text.