Citation: R v Liu [2019] NSWDC 932
Court: District Court of New South Wales
Date: 20 June 2019
Judge(s): Norrish QC DCJ
Background
The offender, a Chinese national and illegal resident in Australia aged 60 at sentence, had been convicted by a jury of possessing tobacco products knowing they were imported with intent to defraud the revenue. The offence occurred on 8 May 2017 at a warehouse complex in Lidcombe, where a shipping container holding more than 7.4 million cigarettes had been delivered. The cigarettes had been smuggled from China disguised inside flat-pack furniture packaging.
The offender ran a legitimate removalist business and had been operating under the direction of a principal organiser referred to as "Abian," who controlled several warehouses in Sydney used to distribute imported cigarettes. On the day of the arrest, the offender directed three others, including a young man who worked for him, to unload the container. Federal investigators had been monitoring the operation and arrested the men during a lunch break.
The offender had given evidence at trial in his own defence, offering exculpatory explanations. The jury rejected those explanations and returned a guilty verdict. A co-accused, Jingyu Li, who gave evidence at trial on behalf of the Crown, was listed to be sentenced separately.
Legal Issues
- What sentence was appropriate for the offender's role as a middleman who acted under direction in a large-scale tobacco importation scheme?
- What weight should be given to the offender's knowledge of the nature of the scheme, where the full scale and scope of the defrauded revenue may not have been known to him?
- How should prior involvement in similar conduct (as revealed by CCTV footage from May 2016) affect the sentencing assessment?
- What significance attached to the offender's personal circumstances, including age, prior good character, and illegal residency status?
Decision
Norrish QC DCJ characterised the offender as a middleman who acted under the direction of the principal organiser, Abian. The offender was not the importer and did not control the warehouses used for distribution. His role on 8 May 2017 was to coordinate the unloading and transport of the container, using his removalist truck and directing the three labourers present. He had taken a deliberately disinterested approach to the container's contents, consistent with awareness of what it held and a desire to distance himself from the operation.
The sentencing judge accepted that the offender was aware the cigarettes had been smuggled to avoid Commonwealth duty and tax, and that they were destined for the black market. However, the court was not satisfied that the offender necessarily knew the full scale and scope of the revenue defrauded. The offender's own admissions at trial confirmed prior involvement in unpacking cigarettes from China on at least one earlier occasion, and he had also participated in subsequent distribution from Abian's warehouses.
The court noted the offender's prior good character and minor criminal history as mitigating factors, alongside his age. No discount for a guilty plea was available given the conviction followed a jury trial. The sentence was fixed within the known range for similar offences, with the court drawing on comparable cases provided by the parties. The offender had been in custody since 8 May 2017, and the sentence commenced from that date. The court also noted, without being able to advise on the process, that immigration authorities would likely be notified upon the expiry of the non-parole period.
Orders Made
- Convicted of possessing tobacco products knowing the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth) in conjunction with s 11.2A of the Criminal Code
- Sentenced to imprisonment for 3 years and 3 months, commencing 8 May 2017 and expiring 7 August 2020
- Non-parole period of 2 years and 2 months, expiring 7 July 2019, subject to s 19AL of the Crimes Act 1914 (Cth)
- Eligible for release to parole on 7 July 2019
Key Takeaways
- A middleman role in a large-scale tobacco importation scheme does not preclude a substantial custodial sentence, but the offender's position under the direction of a principal organiser is a relevant factor in calibrating moral culpability.
- Knowledge of the nature of an importation scheme (that goods were smuggled to defraud the revenue) is sufficient for liability under s 233BABAD(2) of the Customs Act 1901 (Cth); full knowledge of the scale of defrauded revenue is not required for conviction, though it may bear on sentence.
- Prior involvement in similar conduct, even where not separately charged, formed part of the factual background and was relevant to the sentencing court's assessment of the offender's culpability and awareness of the scheme's character.
- The District Court treated good character and age as mitigating factors even where an offender had been convicted after trial, while noting that no plea discount was available.
- Where an offender is an illegal resident, the court may flag the likelihood of immigration consequences upon release from custody, though the sentencing court has no role in determining those consequences.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233BABAD(2)
- Criminal Code (Cth), s 11.2A
- Crimes Act 1914 (Cth), s 19AL
Cases
- Hili and Jones v R (2010) 242 CLR 520
- Zhang [2017] SASCFC 5