Nguyen v. Comptroller-General of Customs - (02 Oct 2018)

A Court may impose one penalty in respect of multiple federal offences that are joined in same information, complaint or summons

Criminal

On 8 September 2016, the Appellant was convicted in the Magistrates Court for importing prohibited imports, namely 'ice pipes'. The ice pipes were imported in three consignments. The importation of ice pipes without permission is prohibited by Regulation 4I of the Customs (Prohibited Imports) Regulations 1956 (Cth). The Appellant appealed against the sentence and costs order to the General Division of this Court, on the ground that, both the fine and costs were manifestly excessive. The primary judge granted leave to appeal but dismissed that appeal on 24 November 2017. The Appellant now appeals to present Court. The sole ground of the appeal to present Court is, in effect, that the primary judge erred in law in failing to find that the fine of $60,000 was manifestly excessive.

The maximum penalty for an offence of this nature, where the Court cannot determine the value of the goods, was $170,000 with a jurisdictional limit for prosecutions commenced in the Magistrates Court of $34,000. In this case there were three offences. Section 4K(4) of the Crimes Act, 1914 (Cth) provides that a court may impose one penalty in respect of multiple federal offences that are joined in the same information, complaint or summons. Any global penalty cannot exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. Accordingly, the maximum global fine was $510,000 and the jurisdictional limit for such a global fine was $102,000.

There is no established range of sentences imposed in respect of offences of the current kind. In the present case, the Appellant engaged in a series of importations which involved a degree of planning. He planned to sell the large number of imported ice pipes at a significant profit. This was an ongoing commercial operation, involving ice pipes which the Appellant was able to purchase for 73c each and sell for between $60 and $120. The Appellant knew that, the ice pipes were prohibited imports used for consuming methylamphetamine, and, although he used his own name and address on the consignments, he took steps to avoid detection by Customs. Significant harm to the Australian community would follow from the consumption of methylamphetamine which the ice pipes were designed and intended to facilitate. General and personal deterrence were sentencing considerations to which significant weight was appropriately given.

It is also relevant to note that, the Appellant was a registered pharmacist who must have appreciated the damaging effects of methylamphetamine and the manner of its use in the community. The Appellant made a conscious decision to engage in a course of conduct by which he sought to profit from the sale of items which would facilitate the use of methylamphetamine. In facts and circumstances of present case, the global fine imposed in present case was reasonable. Appeal dismissed.

Tags : SENTENCE QUANTUM VALIDITY