Citation: R (Cth) v Jia Li He (No 1) [2021] NSWDC 450
Court: District Court of New South Wales
Date: 9 July 2021
Judge: Neilson DCJ
Background
The offender pleaded guilty to possessing imported tobacco products knowing they had been imported with intent to defraud the Commonwealth revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The offence arose from a six-month covert investigation by the Australian Border Force, which culminated in the execution of search warrants on storage units in Sydney on 9 April 2019. Officers seized approximately 1.87 million imported cigarette sticks and over 691 kilograms of loose-leaf tobacco, representing evaded excise of approximately $2.27 million.
The offender jointly possessed the tobacco with two co-offenders: a woman referred to as Ms Su and a man referred to as Mr Wu. The agreed facts confirmed the offender's knowing participation in the scheme. What remained in dispute, and what the court was required to resolve before proceeding to sentence, was the offender's precise role.
The Crown contended the offender was the principal who had set up and directed the enterprise. The offender maintained that Ms Su was the true principal and that he was merely a worker. Because the parties could not agree on this key fact, the court conducted a contested facts hearing.
Legal Issues
- Whether the offender was the principal in the criminal enterprise, or whether he was subordinate to Ms Su
- What standard of proof applied to disputed facts at sentencing in a criminal matter
- What scrutiny was required of the Crown's primary witness, Ms Su, given that the case depended heavily on her evidence
Decision
The court directed itself that any facts adverse to the offender had to be proved by the Crown beyond reasonable doubt, while any facts favourable to the offender needed only be established on the balance of probabilities. Applying R v Murray (1987) 11 NSWLR 12, the court also directed itself to scrutinise Ms Su's evidence with great care, given that the Crown's case rested almost entirely on her testimony.
Ms Su's evidence came from three sources: an affidavit affirmed in August 2020 for her own sentencing proceedings, the transcript of her evidence before another judge at that sentencing hearing, and her oral evidence before Neilson DCJ on 5 and 6 July 2021. The court examined all three sources in detail. The offender also gave evidence in the contested hearing.
Having reviewed all the material, the court found Ms Su's account accurate, reliable and acceptable, and rejected the offender's evidence where it conflicted with hers. The court found no reasonable doubt on the principal question. The evidence pointed to the offender having set up the scheme, directing Ms Su and Mr Wu to rent post office boxes and storage units in their own names, and collecting the proceeds from the sale of the tobacco products.
The court therefore found as a fact that the offender was the principal in the criminal enterprise, and that Ms Su and Mr Wu were his workers or employees within it. The sentencing hearing was adjourned for completion on 13 September 2021.
Orders Made
• The offender was found to be the principal in the criminal enterprise
• The matter was stood over part heard to 13 September 2021
Key Takeaways
- At a contested facts hearing on sentence, the District Court applied the standard that facts adverse to the offender must be proved beyond reasonable doubt, while facts favourable to the offender require only proof on the balance of probabilities.
- Where a Crown case at a contested sentencing hearing rests substantially on a single witness, R v Murray (1987) 11 NSWLR 12 requires that witness's evidence to be scrutinised with great care before adverse findings are made.
- The District Court found that the role distinction between principal and worker is a material sentencing fact, capable of significantly affecting the outcome, which justifies a separate contested hearing when the parties cannot agree.
- Sufficient evidence existed, drawn primarily from Ms Su's consistent account across multiple occasions, to establish beyond reasonable doubt that the offender directed the importation and storage operation and used co-offenders as subordinates.
- A finding that a co-offender laundered casino winnings did not, without more, raise a reasonable doubt sufficient to displace the Crown's case about who held the principal role.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233BABAD(2)
Cases
- R v Murray (1987) 11 NSWLR 12