Chief Executive Officer of Customs v Powell [2015] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: CEO of Customs v Powell [2015] QDC 48 PARTIES: Chief Executive Officer of Customs (appellant) v Timothy Ian Charles Powell (respondent) FILE NO/S: BD 2068/13 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 4 March 2015 DELIVERED AT: Brisbane HEARING DATE: 1 December 2014 JUDGE: Kingham DCJ ORDER: 1. Order 1 made by the Chief Magistrate on 10 May 2013 is set aside; 2. The matter is listed for mention on Wednesday 4 March 2015 CATCHWORDS: APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY INADEQUATE – s19B CRIMES ACT 1914 (CTH) – where the respondent was convicted of importing a prohibited item – where the defendant was discharged without penalty - where the learned Chief Magistrate found that the offence was committed in extenuating circumstances – where the appellant argues the Chief Magistrate’s conclusion that the respondent honestly believed he was not committing an offence was inconsistent with earlier rulings and with the evidence – where concluded that the Chief Magistrate erred in finding that the evidence supported an honest belief – where concluded case was not in exceptional category- where concluded that it was not inexpedient to impose other than nominal punishment because of the need for personal deterrence - where the appeal allowed. -- 1 of 12 -- 2 COUNSEL: Mr M J Byrne QC with Mr C K Copley for the appellant Mr Powell represented himself SOLICITORS: Australian Government Solicitor for the appellant Background [1] On 21 February 2006, Mr Powell imported a receiver part for an M16 self-loading military firearm through a dealer based in the USA. On 10 June 2013 Mr Powell was sentenced in the Magistrates Court for the offence importing a prohibited import, contrary to s233(1)(b) of the Customs Act 1901. The learned Chief Magistrate exercised the discretion conferred by s19B of the Crimes Act 1914, and discharged Mr Powell without penalty. Customs now appeals that decision. [2] The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that a judge composing the appellate court considers that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. The appellate court may only intervene if the sentencing judge acts upon a wrong principle, is guided or affected by extraneous or irrelevant matters, mistakes the facts or does not take into account some material consideration.1 [3] Customs argues the learned Chief Magistrate made errors in both stages of the process he was required to undertake pursuant to s19B.2 At the first stage of the process, he was required to identify a factor that enlivened the discretion. The Chief Magistrate identified, as the relevant factor, that the offence was committed under extenuating circumstances. He considered the case was in a different and exceptional category because Mr Powell honestly believed he was permitted to import the weapon part, given its similarity to AKM receiver parts he had earlier imported without a permit. Customs argues that finding was not open to the learned Chief Magistrate. [4] At the second stage of the process, the Chief Magistrate had to determine whether it was inexpedient to impose anything other than a nominal punishment. In doing so he had to have regard to all matters identified in s16A of the Customs Act as well as the factor identified at stage one of the sentencing process. Customs argues the learned Chief Magistrate erred in the matters he had regard to in the second stage. [5] The issues raised by this appeal are whether there was any error by the Chief Magistrate in his findings that: (a) The offence was committed in extenuating circumstances; and (b) It was inexpedient to impose other than nominal punishment. [6] Mr Powell brought a number of procedural applications during the appeal, most of which were disposed of before the hearing began. They are briefly addressed later in these reasons. Was the offence committed under extenuating circumstances? 1 House v The King [1936] HCA 40; Butler v Queensland Police Service [2012] QDC 46. 2 Commissioner of Taxation v Baffsky (2001) 192 ALR 92; Cobiac v Liddy (1969) 119 CLR 257. -- 2 of 12 -- 3 [7] The learned Chief Magistrate’s conclusion that the offence was committed in extenuating circumstances rested on two considerations. Firstly, his conclusion that Mr Powell had an honest belief he was not committing an offence. Secondly, that his case was in a different and exceptional category, like that considered in the case of Regina v On Clinic Australia Pty Ltd.3 [8] Customs raises a number of arguments which can be summarised as follows: 1. The finding about Mr Powell’s belief is inconsistent with previous rulings on Mr Powell’s evidence; 2. The finding that Mr Powell’s belief was honest is not open on the evidence before the Chief Magistrate; 3. The case is not in an exceptional category. (i) Is the finding of about Mr Powell’s belief inconsistent with previous rulings? In his reasons on sentence the Chief Magistrate said:4 “I have compared Exhibit 1 and the two AKM receiver parts and am satisfied that each has been cut by a blow torch and that they are sufficiently similar in their state of modification to found an honest and reasonable belief on your part as to the lawfulness of importing Exhibit 1. On the evidence I am satisfied you honestly believed that you were permitted to import Exhibit 1 given its similarity to the AKM receiver parts you had earlier been permitted to import.” [9] Customs argues this finding is inconsistent with rulings his Honour made during the sentencing hearing. Those rulings related to the following paragraph of an affidavit sworn by Mr Powell on 30 September 2011: [10] “93. At the time Rufus MURRAY sent Exhibit 1 to me I held the honest and reasonable belief that Exhibit 1 was not a firearm part as defined in regulation 4F of the Regulation, because Exhibit 1 was permanently destroyed.” [11] The learned Chief Magistrate ruled this evidence was inadmissible to prove Mr Powell held a reasonable belief, because that was an inference that had to be drawn from the facts. He also ruled it was inadmissible to establish an honest and reasonable mistake of fact such as would be capable of exonerating Mr Powell of criminal responsibility under s24 Criminal Code.5 He did not, however, rule that assertion was inadmissible for all purposes. [12] The admissibility of the evidence from Mr Powell about his state of mind is caught up in the lengthy history of these proceedings. The complaint first came before the Magistrates Court in July 2009, when the Chief Magistrate ruled Mr Powell had no case to answer. That decision was overturned by the District Court in 2010 and the matter was returned to the Magistrates Court. Mr Powell was convicted by the Chief Magistrate on 10 November 2010. It did not proceed to sentence then, because Mr Powell appealed, first to the District Court (appeal dismissed on 17 November 2011) 3 R v On Clinic Australia Pty Ltd [1996] NSWSC 530. 4 Decision delivered on 10 May 2013 at [36]. 5 Transcript of sentencing hearing on 22 April 2013, 1-26 Ll 9-21. -- 3 of 12 -- 4 and then to the Court of Appeal (appeal dismissed 4 December 2012). The matter then returned to the Magistrates Court for sentence; the hearing taking place on 22 April 2013, with sentence passed on 10 May 2013. [13] On his appeal against conviction to the District Court, Mr Powell argued the defence of mistake of fact applied. Jones DCJ ruled the evidence before the Chief Magistrate was insufficient to raise the defence. He also refused Mr Powell leave to lead further evidence on the appeal. The evidence in question is the affidavit sworn by Mr Powell on 30 September 2011. This is the affidavit that, ultimately, was placed before the learned Magistrate on sentence. In relation to the appeal against conviction, Jones DCJ concluded the affidavit was insufficient to establish a different verdict was likely had it been led at trial.6 On appeal from the District Court, the Court of Appeal upheld both of those rulings.7 In both courts, the question of whether Mr Powell might have been able to raise a defence of mistake of fact was the under consideration. This forms the context in which argument about the disputed paragraph of Mr Powell’s affidavit proceeded at the sentencing hearing. [14] The Chief Magistrate was alert to the need to ensure he did not allow matters already ruled upon to be re-litigated. 8 This is evident from his repeated endeavours to distinguish a mistake of fact, which could not be re-litigated, from a mistake of law, which counsel for Customs conceded could be considered on sentence.9 His Honour’s rulings on paragraph 93 of Mr Powell’s affidavit drew that same distinction. Further, the learned Chief Magistrate made his own assessment of the similarity between the M16 receiver part the subject of this charge, and the AKM receiver parts Mr Powell had previously imported. [15] I am not persuaded his Honour’s finding about Mr Powell’s belief is inconsistent either with his rulings on paragraph 93 of Mr Powell’s affidavit, or with the decisions made by the District Court and the Court of Appeal in relation to the defence of mistake of fact. (ii) Is the finding of an honest belief open on the evidence before the Chief Magistrate? [16] In finding Mr Powell had an honest belief he could legally import the part, the Chief Magistrate acted on the un-contradicted evidence from Mr Powell that he had viewed photographs of the part and satisfied himself that they were sufficiently similar in their state of modification to the AKM machine gun receiver sections that Customs had previously considered not firearm parts. This accorded with his Honour’s own view that there was sufficient similarity between the M16 part and the AKM parts to found an honest and reasonable belief that it would be lawful to import the M16 part without a permit. [17] Customs argues that, regardless of the similarities between the parts, Mr Powell could not have either honestly or reasonably believed that he could import it without permit. Customs argued Mr Powell was not led into a mistake of law by any actions by Customs Officers.10 6 Powell v CEO Customs [2011] QDC 272. 7 Powell v Chief Executive Officer of Customs [2012] QCA 338. 8 Transcript of sentencing hearing on 22 April 2013, 1-5 L38 – 1-26 L22. 9 Transcript of sentencing hearing on 22 April 2013, 1-25 Ll 22 – 29. 10 Transcript of sentencing hearing on 22 April 2013, 1-25 Ll 44-47. -- 4 of 12 -- 5 [18] Appellate courts will only disturb findings about the evidence given by a lay witness at first instance where there is a proper basis for doing so. Customs argued his Honour’s view about the honesty of Mr Powell’s belief is not based on an assessment of demeanour or of credit. Of course he could make no assessment of demeanour given Mr Powell did not give oral evidence. [19] He could, though, assess credit; just as this court can. In this case Mr Powell did not give oral evidence. His Honour’s conclusions about either the honesty or reasonableness of Mr Powell’s belief is a matter of inference from the material before him. On appeal, this court is in as good a position as the sentencing judge to decide the proper inference to draw from the uncontested facts.11 [20] Customs points to apparent inconsistencies in his Honour’s assessment of Mr Powell’s asserted beliefs. Earlier in his reasons, the learned Chief Magistrate rejected what he said was a submission made on Mr Powell’s behalf; that he believed that all firearm imports entering Australia are subject to expert examination by firearms forensic examiners from the Australian Federal Police before being released to the customer by the Customs. His Honour considered the belief offended common sense.12 [21] This assertion was not merely a submission, but a matter of evidence from Mr Powell. He said he formed that belief because of a letter from a Customs Officer dated 25 November 1999.13 In the final paragraph the author indicated his view about what permits would be required to import certain models of a Vektor H5 rifle. The author addressed the requirements under the Customs Regulation as well as under the Qld Weapons Act. He then said this: “However, like all firearm imports this would be subject to expert examination by Firearms Forensic Examiners from the Australian Federal Police who would have the final say as to whether the weapon would be prohibited to general use.” [22] It seems plain enough to me that the author is saying that his advice is subject to expert examination by qualified officers, not that all imports are subject to inspection and examination. It might be possible for Mr Powell to misconstrue that statement, but it does seem to be somewhat self-serving to extrapolate this proposition from a single sentence taken out of context. Respectfully, I agree with his Honour’s observation that common sense tells us that Customs is unlikely to intercept every firearm importation which had not been flagged by a permit application. [23] Customs argues it is inconsistent for his Honour to reject Mr Powell’s belief about that matter, yet to accept Mr Powell’s assertion he had an honest belief he could import the part. I do not accept the two findings are mutually inconsistent or that a finding on one necessarily bears on the other. The learned Chief Magistrate did not say that Mr Powell’s belief was not honestly held. Rather, he said common sense was against it. On my reading of his Honour’s reasons, he considered the belief was not a reasonable one. That does not necessarily bear on his assessment of Mr Powell’s honesty as a witness. 11 Warren v Coombs (1979) 142 CLR 531 at 551. 12 Decision delivered on 10 May 2013 at [15]. 13 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [10] and Exhibit TP1. -- 5 of 12 -- 6 [24] Nevertheless, while giving respect and weight to his Honour’s reasons, I have concluded that the finding that Mr Powell held an honest belief he could import the part without permit is not open on the evidence. [25] Mr Powell placed his lengthy history of dealings with Customs, particularly in relation to importing firearm parts, before the Chief Magistrate. This started in July 2001 when he queried whether he could import a sight which still had part of a receiver attached to it. Customs Officer Johnson advised him by email on 31 July 2001 that sights that have been removed from a barrel or receiver, by cutting, do not require a permit. On 7 December 2001 Mr Powell says he was told by a Customs Officer Potts that they were only interested in complete receivers.14 In May 2002, he imported trunions that had cut sections of firearm receivers attached to them. They were detained on arrival in Australia, but Customs released these to him. 15 [26] In July 2002, he imported minor component spare parts to suit an Uzi firearm that were attached to four cut sections of receivers. These were also detained. He was advised a permit was required, following which Mr Powell lodged a formal written complaint that he had received inconsistent and incorrect advice from Customs. [27] In August 2002 he received a letter from Ms Eutick, the Regional Director, Queensland, in response to this complaint. The author indicated there had been confusion on both sides, and asked Mr Powell for further information about some imports and requested others were surrendered without the need to obtain a warrant.16 The author noted that some parts might be classified as part of a firearm if the part has some other purpose eg if it is also part of the receiver. [28] The letter also included the following passage: “As a result of your complaint and the investigation into the matters, changes to our procedures have occurred to ensure that Customs is handling these kinds of importations in a more consistent manner. As you would appreciate this is quite a complex area of law.”17 [29] Mr Powell placed great reliance on this passage. He said, after receiving the letter: “I held the belief that from that point onwards ALL information I would subsequently receive from the ACS regarding my inquiries into firearms related imports and ALL identifications of my firearms related importations by the AFP and ALL releases of my firearms related importations to me by the ACS would be CORRECT.” 18 (original emphasis used) [30] Between August and October 2002, Mr Powell attended three meetings with Customs officers. He interpreted the advice he received from Customs Officers Cafun and Coupe to mean that he could not import firearm receiver parts if all the parts were included, but could import some of them without permit.19 14 Affidavit of Timothy Powell affirmed 30 September 2011 at [13] – [16]. 15 Affidavit of Timothy Powell affirmed 30 September 2011 at [16] – [17]. 16 Affidavit of Timothy Powell affirmed 30 September 2011 at [19] – [24] and Exhibit TP4. 17 Exhibit TP4 to the affidavit of Timothy Ian Charles Powell sworn on 30 September 2011. 18 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [30]. 19 Affidavit of Timothy Powell affirmed 30 September 2011 at [25] – [30]. -- 6 of 12 -- 7 [31] In December 2002 he imported two cut sections of receivers from two AKM machine guns. These were also detained upon arrival. On 23 January 2003 Customs wrote to Mr Powell to advise he could collect the parts. He signed a receipt which stated “components not requiring permit see AFP report”.20 [32] Mr Powell made inquiries in 2005 with Customs Officers in Canberra “for accurate (original emphasis used) advice on whether permits were required for my importations of firearm related items….I wanted to be absolutely certain that information I received in the future from the ACS regarding firearms related importations was 100% accurate and correct.”21 [33] This was after he was convicted in December 2004 of the offence of importing a breech bolt without a permit. No doubt this explains his desire to obtain information that was 100% accurate and correct, despite his professed belief from August 2004 that all information he received from Customs would be accurate. [34] In late 2005, Mr Powell advertised for a de-milled rear section of a lower receiver to suit an M16 or AR15 type firearm. He made contact with a seller and arranged for the part to be sent to Rufus Murray, an authorised firearm trader in the USA.22 [35] On 19 January 2006, Mr Powell ordered the firearm part. The same day, he received by email a letter from Greg Belford, Manager, Firearms and Detained Goods, with Customs. 23 Mr Belford wrote in answer to Mr Powell’s letter of 13 January 2006, in which he asked whether he needed a permit for a .30 Browning machine gun barrel shroud and butt (and was told he did not). 24 In the same letter, Mr Powell queried which department decides permit requirements. Mr Belford replied that Customs remained the authority for determinations under the Customs (Prohibited Imports) Regulations 1956 with the Australian Federal Police as the prime technical agency. [36] Mr Powell’s correspondence with Mr Belford then continued. On 20 January 2006, he asked this question: “Rather than stretch the resources of your office, and the AFP every time I had an idea to import something, based on your previous comment of…Customs remain the authority for determination of Customs <Prohibited Imports> Regulations 1956, with the AFP as our prime technical advice agency”…am I correct in assuming that if Customs, and in relation to firearms or weapons related imports, I mean Customs officers attached to the various Firearm Cells, makes a decision that something that an importer wishes to import, especially if Customs has received advice from the AFP, that the item requires a permit to import, then that advice is correct.” [37] Mr Belford replied on 22 January 2006. He said he was happy to field any questions Mr Powell may have in relation to imports that may possibly fall within the Regulations. He also said that Mr Powell was correct “in assuming any formal advice received from a Customs Officer in a Customs Firearm Cell is correct; given the information provided to them on which to consider an issue is full and correct and that the advice is considered in relation to the Regulations as they stand at the time.” 20 Affidavit of Timothy Powell affirmed 30 September 2011 at [32] – [41], and Exhibits TP7 -10. 21 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [48]. 22 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [50] to [63]. 23 Exhibit TP27 to affidavit of Timothy Ian Charles Powell sworn on 30 September 2011. 24 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [84 and Exhibit TP23. -- 7 of 12 -- 8 [38] At this point I will make a number of observations. Firstly, Mr Powell enquired which agency made the determinations under the Regulations prior to ordering the receiver part, but after he had advertised for it. Secondly, the query about whether he could act on advice from Customs Officers being correct was made after the part was ordered. Thirdly, Mr Powell had just made a specific and detailed enquiry about two other parts, and had received specific and direct advice about their status. [39] Considered in context, Mr Powell’s assertion that he believed he could import the item without permit is incongruent. He went to considerable trouble to obtain written assurance that he could act on past advice to be correct, without being explicit about what advice he had received. Much of Mr Powell’s affidavit is self- serving rationalisation, but ultimately it is also revealing of his underlying reasoning. [40] Mr Powell volunteered that, at around this time, he recalled the evidence given by Eric Davies, an Australian Federal Police officer, when Mr Powell was prosecuted for importing a breech bolt without a permit. On that occasion, Mr Davies said that an importer should seek clarification with Customs prior to importation. 25 [41] In his affidavit Mr Powell said, in explaining what advice he meant when he wrote to Mr Belford: “I specifically had in mind the AKM Machine-gun Receiver Sections released to me in 2003 by the ACS Firearms Cell after they were subjected to expert examination and identification by the Forensic Services Section of the AFP.”26 [42] This begs the question: Why, if he had this in mind, was he not explicit about this with Mr Belford? [43] The learned Chief Magistrate observed that Mr Powell’s conviction in 2004 for importing a breech bolt without a permit would have put him on notice as to the risk of importing items that may infringe the Customs law.27 Respectfully, I agree. [44] This is not the first time that Mr Powell has argued he was misled by authorities. He made and still maintains this argument in relation to the breech bolt prosecution. Even on appeal, Mr Powell submitted a chronology in relation to that prosecution which he said demonstrates how the Appellant officially induced the Respondent’s offending leading to Previous Prosecution.28 [45] Yet his evident anxiety to obtain accurate advice upon which he could rely, is at odds with his failure to ask for direct advice in relation to this particular part. [46] Mr Powell had a photograph and details of the M16 receiver part. Mr Belford invited him to ask any questions about imports that may possibly fall within the Regulations. Mr Powell’s past experiences alerted him to the possibility that defining a firearm part in general terms was fraught with risk. He himself submitted that whether a cut firearm part is still a firearm part is a matter of fact and degree.29 [47] Mr Davies gave evidence on trial that this particular part could be rendered whole and usable with a limited amount of feasible work.30 While Mr Powell might have 25 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [85] and Exhibit TP25. 26 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [90]. 27 Decision delivered on 10 May 2013 at [11]. 28 Document 3 at [11]. 29 Document 3 at [31]. 30 CEO Customs v Powell [2010] QDC 218 at [17]. -- 8 of 12 -- 9 compared the ordered part to the parts he had previously imported, he could simply have asked: Do I need a permit to import the M16 receiver part (photograph attached) that I have just ordered? But, he did not. [48] Instead, he sent Rufus Murray an extract from a chronology of his importing activity prepared by Customs for the breech bolt prosecution. The extract was the entry showing the AKM receiver parts imported in 2002 did not require a permit. Mr Powell sent this to Mr Murray to include in the package when he sent the M16 receiver part to him.31 The potential audience was any authorised person who might intercept the parcel for Customs purposes. [49] Mr Powell may well have been frustrated by what he perceived to be inconsistent advice from Customs Officers in relation to previous imports: the trunions with receiver parts still attached; the Uzi receiver parts and the AKM receiver parts. He may well have believed he should be able to import the M16 receiver part without a permit, because of its similarity to the AKM receiver parts. However, his actions indicate he had no confidence that would be Custom’s ruling if he asked that question directly. [50] I consider the only rational inference open on the evidence is that Mr Powell believed he had a basis for arguing a permit was not required, but did not want to take the risk of being advised to the contrary. So he did not ask the question. [51] Respectfully, having analysed the evidence, it was not open to the learned Chief Magistrate to find that Mr Powell honestly believed he could import this part without a permit. (iii) Is this case in an exceptional category? [52] The learned Chief Magistrate considered Mr Powell’s honest belief placed this case in a different and exceptional category, like the case of R v On Clinic Australia Pty Ltd.32 In that case, the sentencing judge’s decision to discharge a company without conviction for an offence under the Therapeutic Goods Act 1989 (NSW) was not disturbed on appeal. [53] The company was prosecuted for importing a therapeutic drug without the necessary registration. Prior to the subject importation, a parcel of the same drug was seized by Customs and the company was asked to provide an approval from the Department of Health. The principal of the company made contact with the Department of Health and, ultimately, was told he could collect the parcel. He also contacted Customs, who released the parcel and delivered all subsequent parcels to the company’s head office. [54] There is an important distinction from Mr Powell’s case. Mr Powell did not have advice from Customs about the particular part he wanted to import. He was in active correspondence with a Senior Manager who had already given him advice about other parts. Mr Powell extrapolated from prior experience with a similar part. He declined the invitation, made shortly after he had ordered the part, to obtain specific advice. [55] In On Clinic there were also other extenuating circumstances. The Principal had co- operated fully in the investigation and prosecution. He made full and frank 31 Affidavit of Timothy Ian Charles Powell sworn on 30 September 2011 at [89]. 32 R v On Clinic Australia Pty Ltd [1996] NSWSC 530. -- 9 of 12 -- 10 disclosures. He volunteered much of the information relied upon by the prosecution. He kept accurate records and the importations were treated as normal open business importation transactions. Together, the other extenuating features and the principal’s innocent mistake, based on his enquiries with responsible agencies, set this case apart. This combination of features is not present in Mr Powell’s case. His case is not truly exceptional as the court accepted On Clinic’s was. [56] Even with those truly exceptional circumstances, the NSW Court of Appeal expressed misgivings about the decision to discharge the company without conviction. The Chief Justice said this should not be regarded as a precedent and that he would have imposed a nominal fine, but for the substantial value of the goods forfeited by the company as a result of the prosecution. Hunt J, with whom the other member of the court agreed, said the course taken by the sentencing judge was not manifestly inadequate but was on the border-line and should not lead offenders or potential offenders to expect leniency. Rather, he said the case emphasised that even with the wholly exceptional circumstances the court is reluctant to apply s19B. [57] These observations reflect the high public importance in adhering to legislation designed to protect the safety and welfare of people. This is a common feature of these two cases. Like the Therapeutic Goods Act, the weapons provisions of the Customs (Prohibited Imports) Regulations 1956 are designed to protect the public safety. [58] Section 19B has been consistently interpreted as requiring something that clearly sets the case in a different category to the typical case, either because of the circumstances of the offence or the circumstances of the offender.33 On my assessment of the evidence, Mr Powell did not make an innocent mistake about the law. He proceeded on the basis that it was better to beg for forgiveness, than ask for permission. Even if Mr Powell did honestly hold the belief he said he did, he was well aware this is a complex area of law and was on notice that it was prudent to enquire. His interactions with Customs about receiver parts did not qualify the offence as one that happened in extenuating circumstances. [59] Respectfully, I agree with the learned Chief Magistrate that Mr Powell’s personal circumstances would not otherwise justify making an order under s19B. Mr Powell argues that a conviction could lead to him losing his employment. I am not satisfied the evidence establishes that he would lose his job. The highest it is put is that two of his supervisors have said they would be very sorry to lose such a valued team member.34 The new affidavit material in relation to Mr Gary Corbin establishes the unremarkable proposition that an employee’s outside work conduct could have a bearing on their continued employment. Assuming that Mr Powell’s job is, potentially, at risk, the Courts are reluctant to exercise the discretion under s19B for this reason alone.35 I note, however, that he holds his current employment with a conviction for the same offence on his record. Is it inexpedient to impose anything other than nominal punishment? 33 Commissioner of Taxation v Baffsky [2001] NSWCCA 332; Cobiac v Liddy (1969) 119 CLR 257; R v On Clinic Australia Pty Ltd [1996] NSWSC 530. 34 Character reference under the hand of James Joseph O’Connor dated 28 March 2013; character reference under the hand of Shae Anne Robyn Krieger dated 27 March 2013. 35 CEO Customs v Karam (No 2) [2013] NSWSC 33 at [45]. -- 10 of 12 -- 11 [60] Given that conclusion, the appeal must be allowed and Mr Powell resentenced. It is not necessary, therefore, to canvass in detail the arguments about what matters should or should not have been taken into account by the learned Chief Magistrate. [61] Suffice it to say that, in my view, the following features show that the need for personal deterrence is an important sentencing consideration in this case. Mr Powell has a prior conviction for a similar offence. He is an experienced importer and is knowledgeable about Customs processes. His correspondence about other items demonstrates that he understood the fine distinctions that need to be drawn in determining whether a particular item requires a permit. He had the opportunity to obtain specific advice from Customs, which he did not exercise. [62] The need to impose a sentence that will deter Mr Powell from re-offending precludes a finding that it is inexpedient to impose anything other than nominal punishment. [63] Section 16A of the Crimes Act 1914 (Cth) governs my determination on sentence. I am required to impose a sentence of appropriate severity taking into account all matters, including, to the extent they are relevant and known to the court, the non- exhaustive list of matters specified by s16A(2). Customs has submitted for a substantial fine. When the matter was before the learned Chief Magistrate, Customs provided a schedule of comparable cases which is not on the appeal file. Before imposing a fine, I must take into account the financial circumstances of the person to be fined.36 I do not have information about Mr Powell’s current circumstances. [64] Given those two factors, I will set aside the order made pursuant to s19B and list the appeal for further hearing so I can receive a copy of the schedule placed before his Honour, hear from Mr Powell about his current financial circumstances, and hear from both parties about costs. Procedural matters raised by Mr Powell [65] Finally, I will briefly address the various applications made by Mr Powell. Application to produce restricted items [66] Mr Powell had applied for leave to adduce evidence or for orders that Customs produce certain items on appeal. Judge Reid granted certain orders on 22 July 2014 with the balance of the application37 left to the appeal Judge.38 At the appeal hearing, I ordered Customs produce one Polytech AK47/AKS/AKM self loading military rifle in 7.62 x 39mm calibre bearing serial number 66F1962 with permanently attached folding bayonet fitted and a thirty round capacity ammunition magazine to suit.39 I also allowed Mr Powell to tender photographs of an AKM type rifle and various parts of the weapon.40 Application to strike out the appeal41 36 Crimes Act 1914 (Cth) s16C 37 Document 5. 38 Document 10. 39 Transcript of appeal hearing on 1 December 2014, 1-20, Ll 41-44 and 1-23 Ll 28-29. 40 Transcript of appeal hearing on 1 December 2014, 1-25, Ll 1-20 41 Document 12. Powell said he had abandoned Ground 1 (failed to lodge appeal within 1 month) at 1-5 line 9-11. -- 11 of 12 -- 12 [67] Mr Powell applied to strike out the appeal notice because it used the address of his former solicitors and Customs had his correct contact details.42 I accept Custom’s arguments that the error, if it is an error, is a mere irregularity, does not render the appeal notice a nullity, and that Mr Powell was not prejudiced as a result of that error.43 [68] I give leave to Customs to add a further ground of appeal, despite Mr Powell’s objection.44 Mr Powell had notice of the ground and time to prepare in relation to it. Application to adduce new evidence [69] Mr Powell sought to read two affidavits not before his Honour on sentence: one sworn by Mr Powell on 28 November 2014, and one sworn by Gary Martin Corbin on 12 November 2014.45 Mr Powell said he attempted to serve them on Customs the Friday before the hearing,46 and that he had placed them on the bar table for the appellant that morning.47 I allowed both parties to make submissions regarding those documents.48 Given the outcome of the appeal, leave is granted and, to the extent that it is relevant, it will be considered on re-sentence. Orders 1. Order 1 made by the Chief Magistrate on 10 May 2013 is set aside; 2. The matter is listed for mention on 4 March 2015. 42 Transcript of appeal hearing on 1 December 2014, 1-4, L29. 43 Document 13, Supplementary outline of argument [9]-[10]; transcript of appeal hearing on 1 December 2014 1-15, Ll 35 – 41. 44 Transcript of appeal hearing on 1 December 2014, 1-4 Ll 43-45. 45 Document 14 at [2]. 46 Transcript of appeal hearing on 1 December 2014, 1-37 lines 14-15. 47 Transcript of appeal hearing on 1 December 2014, 1-37 Ll 19-20. 48 Transcript of appeal hearing on 1 December 2014, 1-38 Ll 4 – 8. -- 12 of 12 --