Citation: Comptroller-General of Customs v Leleiwasa & Tabua [2026] NSWDC 103
Court: District Court of New South Wales
Date: 24 April 2026
Judge: Montgomery DCJ
Background
The Comptroller-General of Customs brought civil penalty proceedings in the District Court against two defendants, cargo workers who on 1 August 2023 removed goods from a consignment held under Customs control without authorisation. The same day, both men emailed their employer's Cargo Operations Manager admitting they had taken the cargo "without thinking" and apologising. The prosecution was commenced by Statement of Claim filed 4 November 2024 and the matter came before Montgomery DCJ for a hearing on penalty on 19 March 2026.
The first defendant admitted the charge by email to the Court in January 2026. The second defendant made no formal response and default judgment was entered against him on 4 November 2025. Both appeared unrepresented at the penalty hearing, having been invited to obtain legal representation and declined.
The central factual difficulty was that, while presumptive testing of the interior of the empty metal box from which goods were removed returned a positive reading for cocaine, the Comptroller-General conceded this could not be proved beyond reasonable doubt. Neither defendant had told authorities what they removed or where it went. The prosecution therefore proceeded on the basis that the defendants moved "goods subject to Customs control" of unknown character.
Legal Issues
- Whether each defendant contravened section 33(1) of the Customs Act 1901 (Cth) by intentionally moving goods subject to Customs control without authorisation, and whether that offence was established beyond reasonable doubt on the pleaded averments.
- Whether the second defendant aided and abetted the first defendant's contravention within the meaning of section 236 of the Act.
- What penalties were appropriate, taking into account the nature of the offending, absence of mitigating factors, the defendants' criminal histories, and their failure to assist authorities or make submissions on penalty.
- Whether costs should be ordered against the defendants under section 263 of the Act.
Decision
Montgomery DCJ found that the averments in the Statement of Claim constituted prima facie evidence of the matters alleged, and in the absence of any contrary evidence from either defendant, the Comptroller-General discharged the onus of proof beyond reasonable doubt. Both defendants had expressly admitted the pleaded facts at the penalty hearing, including their agreement that presumptive testing of the empty container indicated cocaine, although that specific averment was subsequently deleted from the Amended Statement of Claim.
The court noted that the offending could not be characterised as involving a known illicit substance for sentencing purposes, given the Comptroller-General's deliberate election not to press that characterisation beyond reasonable doubt. Montgomery DCJ expressed some disquiet about public interest considerations, while acknowledging the decision about what to prosecute rests with the Comptroller-General. The court assessed the offending as falling around the mid-range for contraventions of this type.
On penalty, the court found no significant mitigating factors beyond the limited utilitarian value of the defendants' admissions of the pleaded averments. The first defendant's antecedent criminal record, while not treated as an aggravating factor, precluded any leniency on that basis. The second defendant, having no prior criminal history, was entitled to a modest degree of mitigation. Neither defendant made any submissions on subjective considerations or against the costs sought.
On costs, the court found the Comptroller-General's schedule of costs to be detailed, clear and reasonable, and ordered the full amount sought, apportioned equally between the defendants.
Orders Made
- The first defendant is convicted of the offence contrary to section 33(1) of the Customs Act 1901 (Cth).
- The second defendant is convicted of the offence of aiding and abetting that offence pursuant to section 236 of the Customs Act 1901 (Cth).
- The first defendant is to pay a penalty of $50,000.
- The second defendant is to pay a penalty of $40,000.
- The first defendant is to pay the plaintiff's costs of $34,250.
- The second defendant is to pay the plaintiff's costs of $34,250.
Key Takeaways
- Under section 255 of the Customs Act 1901 (Cth), averments in a statement of claim in a Customs prosecution constitute prima facie evidence; where a defendant provides no contrary evidence, those averments are sufficient to discharge the prosecutorial burden beyond reasonable doubt.
- A Customs prosecution for moving goods subject to Customs control can proceed to conviction and penalty even where the nature of the goods remains unidentified, provided the prosecution otherwise proves the essential elements of the offence.
- The District Court confirmed that the decision whether to prosecute specific charges, and on what evidentiary basis, remains entirely within the Comptroller-General's discretion, following Maxwell v R (1996) 184 CLR 501 and Likiardopoulos v R (2012) 247 CLR 265.
- Where defendants provide no assistance to authorities, offer no contrition beyond initial apologies to their employer, and make no submissions on penalty or subjective factors, courts will find few mitigating considerations available; admissions of pleaded averments carry only limited utilitarian weight in that context.
- A prior criminal record does not automatically become an aggravating factor in sentencing, but it does preclude a defendant from claiming leniency that would otherwise be available to a first offender.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), ss 33, 236, 244, 245, 247, 255, 263
- Crimes Act 1914 (Cth), ss 16A, 16C
- Crimes Act 1900 (NSW), s 351
Cases
- Chief Executive Officer of Customs v Aquino [2004] WASC 271
- Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33
- Comptroller-General of Customs v Stephen Edward Parker [2006] NSWSC 1269
- Davis v Armstrong (1993) 17 MVR 190
- DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145
- DPP v Maxwell [2013] VSCA 50
- Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (2003) 216 CLR 161; [2003] HCA 49
- GAS v The Queen; SJK v the Queen (2004) 217 CLR 198; [2004] HCA 22
- Giorgianni v The Queen (1985) 156 CLR 473
- Likiardopoulos v R (2012) 247 CLR 265; [2012] HCA 37
- Maxwell v R (1996) 184 CLR 501
- Wong v R (2001) 207 CLR 584; [2001] HCA 64