Citation: R v Liu [2023] NSWDC 21
Court: District Court of New South Wales
Date: 9 February 2023
Judge(s): Scotting DCJ
Background
The offender, a 54-year-old Chinese citizen residing in Australia on a bridging visa, was arrested in May 2021 after being found collecting parcels of tobacco from post office boxes he did not personally rent. He had keys to at least 27 post office boxes and had been arranging for a friend overseas to send tobacco from China, with the parcels misdescribing their contents to avoid customs scrutiny.
The offender collected the tobacco, took it home, and sold it to workers at construction sites. He admitted knowing the parcels contained tobacco and that he had not paid the applicable duties. The total combined weight of loose tobacco and cigarettes across all parcels was approximately 88.31 kg, with customs duty evaded amounting to $139,132.30.
The offender pleaded guilty in the Local Court and came before the District Court for sentencing on charges under the Customs Act 1901 (Cth). He had spent 511 days in pre-sentence custody, from his arrest in May 2021 until he was granted bail in October 2022.
Legal Issues
- What sentence of appropriate severity should be imposed under section 16A of the Crimes Act 1914 (Cth) for Commonwealth customs offences?
- What discount applied for the guilty plea and what weight should be given to the offender's personal circumstances?
- Whether the sentence could be served by way of an Intensive Corrections Order rather than full-time imprisonment.
Decision
Sentencing framework and approach
The court applied Part IB of the Crimes Act 1914 (Cth), specifically section 16A, which requires a sentence of appropriate severity in all circumstances (at [2]-[3]). Adverse findings of fact were made to the standard of beyond reasonable doubt, and favourable findings on the balance of probabilities, consistent with R v Olbrich (at [4]).
Plea of guilty
The court allowed a 25% discount for the guilty plea. The court was satisfied the plea demonstrated a genuine acceptance of responsibility and a willingness to facilitate the course of justice, and that the plea held high utilitarian value given the witnesses it spared (at [5]).
Objective seriousness and relevant factors
The offences were not sophisticated in method but were committed for financial gain, and the duty evaded was significant (at [23]-[24]). The offender was solely responsible for the Australian end of the importation operation. General and specific deterrence were identified as important sentencing considerations (at [27]-[28]). In the offender's favour, the court found he had no prior criminal history in Australia, was a person of good character at the time of the offences, had experienced financial hardship that contributed to the offending, and had suffered medical conditions requiring surgery while in custody, making that period harder (at [29]-[32]). The offender's time in custody was also made more difficult by COVID-19 conditions (at [31]).
Prospects of rehabilitation and the Intensive Corrections Order
The court assessed the offender as having good prospects of rehabilitation, with low risk of re-offending, stable employment since release, and the support of his partner (at [32]). The court determined that no sentence other than imprisonment was appropriate but, having regard to section 66 of the Crimes (Sentencing Procedure) Act 1999, found this to be a case where imprisonment could be served by way of an Intensive Corrections Order (ICO) (at [39]-[40]). An aggregate term of two years and six months was notionally imposed, reduced by the 17 months already served in pre-sentence custody, leaving a balance of 13 months to be served under the ICO from the date of sentence (at [38], [41]).
Orders Made
- The offender is convicted, with a 25% discount for the guilty plea applied.
- An aggregate term of imprisonment of 2 years and 6 months was imposed, reduced by approximately 17 months for pre-sentence custody.
- A term of 13 months imprisonment, to be served by way of an Intensive Corrections Order, was imposed from 9 February 2023.
- The offender was required to report to the Community Corrections Office at Bankstown by 4pm on 16 February 2023.
- Standard ICO conditions apply, with community service work as an additional condition.
Key Takeaways
- Under section 16A of the Crimes Act 1914 (Cth), a sentencing court must impose a sentence of appropriate severity across all circumstances, drawing on both the statutory factors and applicable common law principles, which are not exhausted by the statutory list (at [3]).
- A 25% discount for a guilty plea is available where the court is satisfied the plea reflects genuine acceptance of responsibility and materially facilitates the course of justice (at [5]).
- General deterrence carries significant weight in Commonwealth customs duty evasion offences, even where the scheme is relatively unsophisticated (at [27]).
- Personal hardship, medical conditions suffered in custody, COVID-19 custodial conditions, and a low risk of re-offending can collectively support the imposition of an Intensive Corrections Order in place of full-time imprisonment, provided the court first determines that no sentence other than imprisonment is appropriate (at [30]-[32], [39]-[41]).
- Pre-sentence custody may be taken into account by reducing the period of an ICO to reflect time already served, as an ICO can only be imposed from the date of the sentencing order (at [41]).
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
Cases
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Olbrich (1999) 199 CLR 270