Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 40

SUPREME COURT OF QUEENSLAND CITATION: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 040 PARTIES: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS (plaintiff) v LABRADOR LIQUOR WHOLESALE PTY LTD ACN 050 406 221 (first defendant) LAWRENCE ERIC WRIGHT (second defendant) JEFFREY ANDREW JOHN BRYCE (third defendant) FILE NO: BS 904/1997 DIVISION: Trial Division PROCEEDING: Civil Claim COURT: Supreme Court DELIVERED ON: 15 March 2006 DELIVERED AT: Brisbane HEARING DATE: 3 March 2006 JUDGE: Fryberg J ORDER: Orders as per schedule CATCHWORDS: TAXES AND DUTIES – Customs and excise – Penal provisions – Offences – Penalties – Maximum and minimum penalties – Seriousness of offence – Relevance of amount evaded – Application of totality principle to pecuniary penalties – Availability of global penalty for multiple offences – Relevance of ability to pay where minimum penalty mandatory – Avoidance of double punishment where common facts – Imprisonment in default – Appropriateness and duration TAXES AND DUTIES – Customs and excise – Jurisdiction and procedure in customs prosecutions – State court practice – Purpose of default imprisonment – Inconsistency with State Act – Application of Penalties and Sentences Act 1992 Crimes Act 1914 (Cth), ss 4K, 15A Customs Act 1901 (Cth), s 247 Excise Act 1901 (Cth), s 146 Penalties and Sentences Act 1992 (Qld), s 182A -- 1 of 25 -- 2 CEO Customs v Ozzy Tyre and Tube Pty Ltd [2005] NSWSC 948 – discussed Goulding v Penello (1999) 43 ATR 179 – referred to L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157 cited Pearce v The Queen (1998) 194 CLR 610 – applied Postiglione v The Queen (1997) 189 CLR 295 - cited Reardon v Nolan (1983) 74 FLR 309 – distinguished R v Bibaoui [1997] 2 VR 600 – followed Smith v R (1991) 25 NSWLR 1 – cited Wilde v Menville Pty Ltd (1980) 50 FLR 380 – distinguished COUNSEL: R W Gotterson QC and F W Redmond for the plaintiff D K Boddice SC and K A Mellifont for the defendants SOLICITORS: Australian Government Solicitor for the plaintiff Forde Lawyers for the defendants -- 2 of 25 -- 1 [1] FRYBERG J: On 6 February this year I convicted the defendants of 45 federal offences under the Customs Act 1901 and the Excise Act 1901. 1 The corporate defendant (“Labrador”) was convicted of 15 counts of evasion of duty, 2 15 counts of knowingly making a false or misleading statement 3 and 15 counts of moving or interfering with controlled goods. 4 Messrs Wright and Bryce, Labrador's sole directors and shareholders, were convicted of the same counts as accessories.5 I must now determine what penalties must be imposed and what other orders made. [2] The charges arose out of eight purported exports of liquor and/or cigarettes from Labrador's bond store in 1995 and 1996. The circumstances of the offences are set out in detail in my reasons for judgment delivered on that day. Seven of the shipments gave rise to six charges each and the eighth to three charges as shown in this table: CA means Customs Act 1901; EA means Excise Act 1901. [3] The amount of duty evaded was $1,012,257.62, calculated as follows: Shipment Customs duty Excise duty Fiji shipment one $133,177.88 $3234.50 Fiji shipment two $105,500.02 $22,509.07 Fiji shipment three $118,336.49 $3,721.67 Fiji shipment four $126,511.46 $12,215.37 Fiji shipment five $127,380.57 $12,215.37 Fiji shipment six $74,574.60 $10,352.43 Fiji shipment seven $106,671.94 $72,484.55 Honiara Nil $83,371.70 Total $792,152.96 $220,104.62 1 [2006] QSC 4, http://www.courts.qld.gov.au/qjudgment/QSC%202006/QSC06-004.pdf. It was not suggested that there was any scope for the application of s 19B of the Crimes Act 1914 (Cth). 2 Customs Act 1901, s 234(1)(a); Excise Act 1901, s 120(1)(iv). Except where the context indicates otherwise, statutory references in these reasons for judgment are to the legislation in its form at the relevant time. 3 Customs Act 1901, s 234(1)(d); Excise Act 1901, s 120(1)(vi). 4 Customs Act 1901, s 33(1); Excise Act 1901, s 61(2). 5 Customs Act 1901, s 236; Crimes Act 1914, s 5 (This section has subsequently been repealed. Its equivalent is now found in the Criminal Code 1995 (Cth), s 11). Evasion False statement Moving goods CA 234(1)(a) EA 120(i)(iv) CA 234(1)(d) EA 120(1)(vi) CA 33 EA 61 Fiji 1 9 9 9 9 9 9 Fiji 2 9 9 9 9 9 9 Fiji 3 9 9 9 9 9 9 Fiji 4 9 9 9 9 9 9 Fiji 5 9 9 9 9 9 9 Fiji 6 9 9 9 9 9 9 Fiji 7 9 9 9 9 9 9 Honiara - 9 - 9 - 9 -- 3 of 25 -- 2 [4] For each offence of evasion under both Acts, a monetary penalty must be imposed. The minimum penalty permissible is twice the amount of duty evaded and the maximum five times that amount.6 For each offence of making a false statement the maximum monetary penalty is twice the amount of the duty evaded plus $5,000. 7 There is no minimum penalty. For each offence of moving controlled goods the maximum penalty under the Customs Act is $50,000 and the maximum under the Excise Act is $20,000. 8 There is no minimum penalty. [5] With one possible exception, it is common ground that the provisions of the Crimes Act 1914 relating to sentencing apply to the imposition of penalties under the Customs Act and the Excise Act. Section 16A of the Crimes Act lists the matters to which the court must have regard when passing sentence for a federal offence. It is unnecessary to set out that provision; the matters in the list can be dealt with, to the extent to which they arise, in due course. [6] Nearly 40 years ago Kitto J stated the approach which has ever since been universally adopted by judges sentencing in such cases: “Not only are the defendants guilty of a sustained course of conscious wrongdoing, but the offences are in a field in which punishments for deliberate offences must be severe. The Customs laws represent the judgment of Parliament upon an important aspect of the economic organization of the community, and the object of the penal provisions is to make that judgment as effective as possible. It is important to remember that Customs officers have of practical necessity to rely extensively upon the information supplied to them by importers, for the flow of commerce could not be maintained if every importation had to be fully investigated. Moreover, detection of frauds is not always easy. No doubt ordinary conceptions of honesty and of civic responsibility suffice to ensure a great deal of fair dealing with the Customs, but for some people little seems to matter but fear of the consequences of discovery. The Customs Act makes those consequences potentially drastic. It is for the courts to make them, in suitable cases, drastic in fact, for otherwise traders who are not saved by qualms of conscience from willingness to defraud their fellow citizens may weigh the profits they hope for against the penalties they have cause to fear and find the gamble worth-while.”9 He imposed penalties of four times the duty evaded. In dismissing the subsequent appeal, a Full Court said “There is, in our view, no room for the suggestion that in fixing the penalties on these charges His Honour erred on any matters of principle; the argument merely is that the penalties were excessive in the circumstances. But his Honour's reasons make 6 Customs Act 1901, s 234(2)(a); Excise Act 1901, s 120(2)(b). 7 Customs Act 1901, s 234(3); Excise Act 1901, s 120(3). 8 Customs Act 1901, s 33(1); Excise Act 1901, s 61. 9 L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157 at p 164. -- 4 of 25 -- 3 it plain why penalties of this magnitude were imposed and amply demonstrate the need for such penalties.”10 [7] Despite the seriousness of the charges and the magnitude of the maximum penalties, little evidence was led at the sentencing hearing. A number of documents were tendered by both sides and a number of unchallenged assertions of fact were made on behalf of the defendants. The plaintiff sought to tender a schedule showing the amount of additional profit which Labrador would probably have made by selling the relevant goods on the domestic black market. This schedule was challenged by the defendants and I ruled that I would not receive it unless a witness were called to explain its derivation. No such witness was called. Underlying my ruling was the view that evidence which was challenged by the defendants and which would tend to aggravate the penalty to be imposed probably must be proved beyond reasonable doubt. 11 Even if s 132C of the Evidence Act 1977 could be applied by reason of the provisions of the Judiciary Act 1903, the present case would not constitute “criminal proceedings” within the meaning of that section. On the other hand neither Mr Wright nor Mr Bryce gave evidence. The method by which they disposed of the dutiable goods remains, at least for me, a mystery; but I infer that they were sold at a profit. The seriousness of the defendants’ conduct [8] I shall not attempt to summarise the circumstances of the offences from my earlier reasons for judgment. I should, however, state how bad I regard the offending conduct to have been. In my judgment the circumstances placed the offences in the most serious category. 12 The conduct was planned and premeditated. It continued for more than a year. It involved eight separate shipments. It involved serious breaches of the trust which is necessarily accorded to those who are granted a licence to operate a bond store. It involved an elaborate attempt at deception, by the invention of a non-existent person, the forgery of a considerable number of documents and signatures and the enlistment of at least one accessory in Fiji. Labrador's customs agents were duped into assisting the operation of the scheme. It continued until the defendants were caught and would, I infer, have continued for longer had they not been caught. Doubtless it would be possible to imagine worse cases in terms of the amount of duty evaded, the number of occasions of the evasion and the duration of the offending conduct. That does not detract from the need to regard the offences most seriously.13 [9] In making that judgment I have taken into account among other things the amount of duty evaded. In so doing I have adopted a different approach from 10 Ibid at p 168. 11 R v Olbrich (1999) 199 CLR 270. 12 I have compared the case with the following, in all of which the CEO Customs was the plaintiff: Preston [2000] QCA 186; Amron [2001] VSC 404; Tonmill Pty Ltd (2001) 160 FLR 1; Corniche Motors Pty Ltd [2003] WASC 244; Red Dale Holdings Pty Ltd [2004] WASC 141; Liang [2005] NSWSC 591; Coulton [2005] NSWSC 869; Ozzy Tyre and Tube Pty Ltd [2005] NSWSC 948; Hajied [2006] NSWSC 34; and, of course, with L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157. 13 Veen v The Queen (No. 2) (1988) 164 CLR 465 at p 478. -- 5 of 25 -- 4 that taken by Rothman J in CEO Customs v Ozzy Tyre and Tube Pty Ltd. 14 That was a case involving smuggling as well as evasion, but the difference is presently immaterial. His Honour said: “94 The temptation in relation to an offence of this kind is to determine the seriousness of the offence largely based on the amount of money involved in the deception. However the Parliament has established a regime which covers a wide range of activity and has, quite deliberately, fixed the penalties (both minimum and maximum) by reference to the amount of money involved in the criminal conduct. As a consequence, the legislature has cleverly built in a factor relating to seriousness by making the penalties directly proportionate to the amounts involved in the criminal conduct. To take account, once more, of the amount involved in the criminal conduct would be to double count that factor in the fixing of the ultimate penalty.” With respect, I do not agree that taking account of the amount involved would constitute double counting. The legislature has not required that the penalty be fixed as a multiple of the amount of duty evaded. It has defined a range within which the penalty must lie by reference to such multiples. By fixing a minimum penalty in those terms it has certainly used the amount evaded as a reference factor. However, I see nothing in the legislation to suggest a necessity to disregard the amount in assessing the objective seriousness of the offence. By imposing a minimum penalty the Parliament has reduced the area within which judicial discretion may be exercised, but it is still necessary to exercise the discretion. That follows from the existence of a range of penalties. In my judgment I should take into account the amount of duty evaded in exercising the discretion. That this factor is taken into account both in fixing the range and in fixing where, within that range, the appropriate penalty lies, does not in my judgment produce an improperly inflated penalty. [10] The defendants disposed of the dutiable goods without paying duty purely for financial gain. Labrador's accounts give no indication that it was a beneficiary; I infer that all of the illegitimate profit went to the second and third defendants. Market forces would presumably ensure that the amount of that profit did not exceed the amount of duty evaded; they would probably ensure that it was a good deal less than that amount. Probably it exceeded half a million dollars - not bad pickings for a little over a year’s work. There is no evidence of what happened to the money, so I have no reason to think it has been squandered. Personal and mitigating factors [11] Mr Wright was born on 27 December 1947 in Port Elizabeth, South Africa. He came to Australia in 1983 and obtained citizenship in 1986. He has no criminal history. He is married; his wife earns a small income from part-time employment as a community worker. There is no evidence that penalties imposed on her husband will have any particular impact upon her. I have no information about his occupational qualifications or employment history apart from his involvement with Labrador. Until now his only income from other 14 [2005] NSWSC 948. -- 6 of 25 -- 5 sources has been approximately $1,200-$4,300 per annum for work with a publishing agency. He has been involved in community work and charity work and is well regarded by some who have known him in these contexts. He presently owns no real property. [12] I take note of Mr Wright's involvement in community and charity work. It is, however, a factor of little importance. As the New South Wales Court of Criminal Appeal has observed, “[P]ast integrity and good character carry little weight against systematic defrauding of the revenue over a significant period of time.”15 [13] Mr Bryce is 58 years old and was born in Brisbane. He has no criminal history. He is married; his wife is not presently in paid employment. There is no evidence that penalties imposed on her husband will have any particular impact upon her. He had heart bypass surgery some 25 years ago and is said to be well overdue for another operation. He suffers from arrhythmia, hypertension and stress and is on medication for these conditions. I infer from the lack of any medical evidence that they are being managed successfully. I have no information about his occupational qualifications or employment history apart from his involvement with Labrador. That involvement was his sole source of income. [14] Since its conviction Labrador's warehouse licence has been cancelled. The defendants submitted that this meant that the business will have to be closed down and its assets sold. Consequently, they submitted, Messrs Wright and Bryce have been deprived of their livelihood. I accept that conclusion. The business required to be licensed and no licence would again be granted to them, as persons, or a company controlled by persons, convicted of an offence under the Act during the 10 years before the application. 16 However, if it were implied in the submission that the loss of licence had destroyed the value of Labrador's business, I could not accept the implication. If the business had value I see no reason why it could not be sold as a going concern to another licence holder or to a person acquiring a licence. Counsel for the defendants informed me that this was not an option, and that the only option was to sell what was left and close the business down. If that be so, the most likely explanation is that, absent the opportunity for unlawful profits, the business is insufficiently profitable to provide an acceptable return on capital, with the consequence that its assets do not include goodwill. That hardly suggests that the business was legitimately producing much of a livelihood. The defendants estimated the value of the business in the vicinity of four to five million dollars; I do not accept that estimate. In any event, Messrs Wright and Bryce have not been deprived of their earning capacity. They will simply have to find other employment. [15] There is no evidence of any contrition on the part of the defendants. On the contrary, it is apparent that counsel had instructions that they continue to reject the findings of guilt. The conduct of the defence involved systematic falsehood, particularly on the part of Mr Wright. It also involved blackening 15 R v Cappadona (2001) 47 ATR 317 at para 23. 16 Customs Act 1901, s 81. -- 7 of 25 -- 6 the characters of innocent persons: officers of Fiji Customs, officers of Solomon Islands Customs and the late Mr Michael Quan. If the defendants have any regrets, they relate only to getting caught. [16] The defendants have shown little willingness to cooperate in the administration of justice. They concurred in the preparation of a statement of agreed facts, which doubtless saved some time and cost, but which did not contain anything which would have caused the plaintiff severe difficulties of proof in its absence. They gave disclosure of documents without claiming privilege against exposure to a penalty,17 but refused to be interviewed by Customs investigators. There is no evidence that any documents disclosed were privileged, nor that privilege was waived deliberately rather than inadvertently. It took an extraordinary time to bring this matter to trial, but there is no suggestion that either side was guilty of unreasonable delay. On the other hand the trial was lengthy and many witnesses, including many from overseas, were required for cross-examination. The false case presented by the defendants contributed to this. The authorities have been offered no assistance in pursuing others who must have been involved in the scheme. The duty remains unpaid and there is no evidence of what has happened to the proceeds of sale of the dutiable goods. The defendants’ financial circumstances [17] It is common ground that s 16C of the Crimes Act 1914 applies in this case by reason of the definition of “fine” contained in s 3(2)(a) of that Act. Section 16C requires that before I impose a penalty on any of the defendants I must take their financial circumstances into account. No evidence of Labrador's current financial position is before me, but it would be surprising if the company held substantial assets. Mr Wright owns no land; his wife owns their family home. Mr Bryce has a half share in his home (his wife owns the other half) and a 10% share (his wife owns 90%) in a unit at Caloundra. He estimates his home to be worth $1.3 million and the unit to be worth between $800,000 and $900,000. Approximately $480,000 is owing under a mortgage of the home and approximately $301,000 under a mortgage of the unit. Neither defendant has a share portfolio (whatever that means) and I am content to proceed on the basis that neither owns any other property of significant value. (The defendants called no evidence of their current financial position and could not be cross- examined; and the offences fell outside the period allowed by the Proceeds of Crime Act 2002, so the plaintiff was unable to use the investigative powers conferred by that Act.) The penalties to be imposed on Labrador will render the shares in that company worthless. [18] There is also a possibility that creditors of Mr Wright, or his trustee in bankruptcy if any were appointed, might recover half the value of the family home from Mrs Wright. In April (or perhaps January) 1997 Mr Wright purported to transfer his half interest in that home to his wife. He claims to have done so for valuable consideration, in that she transferred to him her 1/6 share in Labrador, paid some cash and assumed liability under the mortgage. 17 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129. Section 14 of the Evidence Act 1977 abolished privilege in respect of exposure to a forfeiture, but not to a penalty. -- 8 of 25 -- 7 Such documentation as there is suggests that this construction of what occurred is dubious. The transfer of the interest in land occurred shortly after the present action was commenced. Mr Wright estimates that the home is now worth $650,000 and there is a little under $35,000 owing under the mortgage. On these estimates, the maximum amount possibly available from this source would be a little over $300,000. [19] On the evidence, none of the defendants will be able to pay even the minimum penalties which must be imposed for the evasion offences. [20] Section 16C has analogues in most states and territories,18 but the obligation to fix fines in criminal cases having regard to the offender's ability to pay existed before these statutes. 19 The question is, does s 16C make a substantial fine inappropriate. In Smith v R, a case involving contempt of court by a prisoner already serving a life sentence, Mahoney JA said: “A punishment must be both appropriate to the offence and be seen publicly to be such. Given Mr Smith's conviction for murder and his life sentence, a further sentence will have no great effect on him: that, no doubt, is why he did what he did. It is the significance to others of the present punishment which has a particular importance. … But it remains important that what is done to him should both mark, clearly and emphatically the community’s view of his offence and (if it may) deter other possible offenders. … If the offence is to be marked by a punishment and if imprisonment is inappropriate, then fine remains the appropriate punishment. I shall assume, without deciding, that in the end the fine may not be able to be collected. But there remains the effect of it on the others.”20 Kirby P dissented. He held: “[W]here, as here, the appellant was under sentence of life imprisonment, had other substantial accumulated debts and had an income and likely means of repayment which were miniscule, the imposition upon him of a fine of $60,000 offends the Bill of Rights prohibition. For him, such a fine was ‘excessive’.”21 In a characteristically robust judgment, Meagher JA “strongly” disagreed with Kirby P (and would have increased the fine had there been power to do so).22 18 Fines Act 1996 (NSW), s 6; Sentencing Act 1991 (Vic), s 50; Penalties and Sentences Act 1992 (Qld), s 48; Sentencing Act 1995 (WA), s 53; Sentencing Act 1995 (NT), s 17; Crimes Act 1900 (ACT), s 348. 19 See the cases cited by Kirby P in Smith v R (1991) 25 NSWLR 1 at p 12. 20 (1991) 25 NSWLR 1 at pp 23, 24. 21 Ibid at p 20. 22 Ibid at p 24. In the light of his Honour's approach to contempt of court, biblical scholars will appreciate the irony in the reference to Gallio (Acts, 18:17), a proconsul who was unconcerned by a contempt committed in the face of his court. -- 9 of 25 -- 8 [21] The foregoing passages from the judgment of Mahoney JA were cited and applied by Lloyd J in Environmental Protection Agency v Ableway Waste Management Pty Ltd.23 In my respectful judgment they are correct. It is not the law that a fine, the amount of which plainly exceeds the capacity of the offender to pay it, is by that fact alone excessive. [22] In the present case, there is no alternative punishment to a substantial pecuniary penalty. If imprisonment were an available option, the section might point to that rather than a penalty. The minimum penalty, the seriousness of the criminality and the weight which must be given to the factor of general deterrence leave no scope for s 16C to perform any useful function. The financial circumstances of the defendants cannot sensibly affect the penalties in this case. General deterrence [23] There can be no doubt on the authorities that general deterrence is the factor to which I must pay most regard in determining the penalty. I have already referred to the decision of the High Court in L Vogel and Son Pty Ltd v Anderson.24 I add to that what was said by Rothman J in Ozzy Tyre and Tube Pty Ltd: “[A]s has been stated for almost as long as the customs legislation has been in force (see R v Lyon (1906) 3 CLR 770), the imposition of heavy penalties for offences of this kind is necessary given the nature of the offence and the conduct in question. … 96 It is essential, in dealing with a commercial enterprise that has made profits to which it was not entitled by the evasion of duty and the commission of these offences to impose condign punishment which properly reflects the denunciation of the conduct, the retribution that society needs to impose and properly establishes a deterrent for any other like minded entity or person from committing similar offences. … 98 The practical restrictions on the capacity of law enforcement agencies to apprehend every offender for every offence necessarily requires the legislature and the courts to ensure that deceitful conduct in a commercial enterprise, once determined, is appropriately punished. The courts must ensure that there is a deterrent to the commission of such offences by persons acting in a commercial enterprise and not allow the deception to occasion only that which would be required to be paid if the offenders behaved as the law requires. In R v Lyon, supra, O’Connor J said: ‘... it is one of the underlying principles of the Act that the Government should rely upon the importer to 23 [2005] NSWLEC 469. 24 Paragraph [6]. -- 10 of 25 -- 9 honestly state the truth according to his knowledge in reference to a matter in which he knows everything and the Customs authorities know nothing. In the case of the duties payable ad valorem if the Customs authorities took steps in each case to satisfy themselves of the value of the goods for duty before allowing them to land, trade would be seriously hampered. Almost of necessity they must take the importer’s statement of value prima facie as true. The policy of the Act, therefore, is that the Customs authorities trust to the statement of the person importing the goods.’”25 That is particularly the case when the offender has been trusted with a warehouse licence. [24] Again I must confess to having difficulty in sensibly applying these statements. One suspects that many, perhaps most, offenders against s 234 of the Customs Act 1901 will have taken care to ensure that they own little property themselves. In such circumstances the precise penalty imposed here would probably be regarded with indifference by those whom it is sought to deter, particularly any who are contemplating evading a substantial amount of duty. In the light of the authorities it would be heresy to apply that thought. In any event I must ensure not only that I impose a penalty which will have a substantial deterrent effect, but I must also have regard to the need to ensure that the defendants are adequately punished for what they have done.26 Having regard to the factors which I have already discussed, and subject to what is to follow, it is necessary in my judgment to impose the maximum penalties prescribed for the evasion of duty. [25] It will be recalled that I must impose penalties for 15 offences of evasion, 15 of making a false statement and 15 of moving goods. The most serious of these are the evasion offences. The defendants submitted that I should impose the minimum penalty in respect of the evasion offences and no further penalty in respect of the other offences. That submission was based on the effect which the convictions have had on the defendants and on the totality principle. I have dealt already with the issues relating to the effect of the convictions on the defendants. Before I turn to the totality principle, I must deal with the false statement offences and the offences relating to moving goods. The false statement offences and the moving offences [26] Although these offences were charged as separate offences, the conduct constituting each offence was also alleged as a particular, and part of the proof, of the evasion offences. That is not an uncommon situation in relation to customs and excise offences. It has never been doubted in the context of customs prosecutions that in determining penalties, it is material to take into consideration that, though the offences in respect of one shipment were separate 25 [2005] NSWSC 948 at para [95]. 26 Crimes Act 1914, s 16A(2)(k). -- 11 of 25 -- 10 offences in law, they were substantially contemporaneous and connected. 27 Here there was more than contemporaneity and connectivity; there was overlap. The overlap lay not in the definition of the offences, but in the fact that the same conduct satisfied the elements of one offence and constituted a set of facts essential to the proof of an element of another. The situation is therefore somewhat different from that which existed in Pearce v The Queen, 28 where there was partial overlapping in the definition of elements of the offences. I do not think the difference is material to what was said regarding punishment in that case. What was said in the majority judgment governs the approach which I should take in this case: “To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.” 29 [27] The defendants submitted that in these circumstances I should not impose any additional penalty in respect of the false statement offences and the moving offences. The plaintiff submitted that I should impose the maximum penalties available for these offences. The former submission should be accepted. The conduct involved in these offences was an essential ingredient of the evasion offences. The penalties available for those offences range high enough to enable the criminality involved in these offences to be reflected in the penalties imposed for evasion. I do not think that the sentencing purpose of denunciation requires separate penalties to be imposed for the false statement offences and the moving offences. No sufficient reason for me not to adopt the approach described in Pearce was advanced by the plaintiff. I shall impose no additional penalty in respect of these offences. The totality principle [28] In Mill v The Queen, the High Court approved this description of the principle:30 “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and 27 L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157 at p 168 (Full Court). 28 (1998) 194 CLR 610. 29 At p 623. 30 Quoting Thomas, D.A.: Principles of Sentencing, 2nd ed (1979), pp 56-57. -- 12 of 25 -- 11 consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.”31 The principle thus approved was summarised by McHugh J in Postiglione v The Queen: “The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi: ‘There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.’”32 Since then, Gummow, Callinan and Heydon JJ have expressed “doubt that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality principle may be applied.”33 That doubt accords with Thomas's suggestion that the principle has two limbs: “A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation.”34 [29] Thomas discussed the principle in a section of his book dealing with concurrent and consecutive sentences. All of the cases in the High Court from Mill onwards have involved the application of the principle to sentences of imprisonment. It is therefore surprising, at least at first glance, to see it applied to sentences involving only pecuniary penalties. Santow J has noted an 31 (1988) 166 CLR 59 at p 63. 32 (1997) 189 CLR 295 at pp 307-8 (citations omitted). 33 Johnson v The Queen (2004) 78 ALJR 616 at p 624. 34 Op cit, pp 57-8. -- 13 of 25 -- 12 imperfection of the analogy between such cases and cases involving imprisonment, particularly the inability to replicate accumulation or concurrence, and some of the difficulties which arise in applying the principle.35 Nonetheless his Honour did apply it. So did Sackville J in Minister for the Environment and Heritage v Greentree (No 3). 36 Since then it has been applied at first instance in Liang, 37 Coulton38 and Ozzy Tyre and Tube Pty Ltd.39 A submission that it should have been applied was rejected by the Court of Appeal on the facts in Federal Commissioner of Taxation v Cocaj and Behuli,40 but there was no suggestion in argument or in the reasons for judgment that the principle was inapplicable to sentences involving only pecuniary penalties. Having regard to all of these authorities it would be inappropriate for me, sitting at first instance, to embark on a consideration of the correctness of this approach. [30] The position is complicated in the present case by the fact that some of the penalties must be imposed under the Excise Act 1901. Section 146 of that Act provides, “No minimum penalty imposed by this Act shall be liable to reduction under any power of mitigation which would but for this section be possessed by the Court.” 41 It would not be difficult to find that the totality principle constitutes a “power of mitigation” within the meaning of that section. Such an interpretation would seem to accord with the overall framework of the Act. The Court of Appeal was aware of s 146 in Cocaj and Behuli, but there was no suggestion that it constituted a complete answer to the appellant's argument. The section was not referred to by counsel for the plaintiff before me. In these circumstances I shall proceed on the basis that it has no effect on the applicability of the totality principle. If I am wrong on this point of law, the matter might be raised at the Court of Appeal. [31] The maximum penalty for each of the 15 offences of evasion is five times the amount of the duty evaded. The minimum penalty is twice that amount. The duty evaded amounted to $1,012,257.62. As will appear, in addition to penalties the defendants will be liable for the amount of that duty and for costs, which will be substantial. It is a lot of money. On the other hand, I have found that the circumstances placed the offences in the most serious category. 42 General deterrence is a consideration of great importance. Mitigating factors are almost nonexistent. The defendants’ criminality is gross, extensive and unredeemed. In my judgment the maximum penalty is proportionate to it. That penalty is in the circumstances no more crushing than the minimum penalty. It is the penalty which should be imposed for each offence of evasion. 35 ASIC v Adler (2002) 42 ACSR 80. (I do not mean to imply that this was the first time the principle was considered in relation to a pecuniary penalty.) 36 (2004) 136 LGERA 89. 37 [2005] NSWSC 591. 38 [2005] NSWSC 869. 39 [2005] NSWSC 948. 40 (2004) 57 ATR 538. 41 I have not found any similar provision in the Customs Act 1901 (Cth). 42 Paragraph [8]. -- 14 of 25 -- 13 Global penalty [32] The plaintiff submitted that I should, pursuant to s 4K(4) of the Crimes Act 1914, impose one penalty for the seven offences of evasion under the Customs Act 1901 and one other for the eight offences of evasion under the Excise Act 1901. The defendants did not oppose that course. A number of cases in New South Wales have been determined on the basis that there is power to take this course.43 Relevantly, s 4K provides: “(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. (4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.” [33] Those subsections were considered in the context of a customs prosecution in Goulding v Penello.44 Heenan J noticed the application of s 4K(4) in Kelly v Wong and Rizoli Pty Ltd,45 but declined to follow it. He did so on the basis of the decision of the Victorian Court of Appeal in R v Bibaoui.46 In that case it was held that the “offences referred to in subsection (3)” were offences in which the proceedings were commenced by “information, complaint or summons”; in other words, summary offences. Consequently, s 4K(4) could not be applied in proceedings brought on indictment in the County Court. Heenan J also referred to the decision of the South Australian Court of Criminal Appeal in R v Jackson,47 where the majority assumed for the purposes of the case, and the dissenting judge held, that Bibaoui was correctly decided. Heenan J decided the case before him on the assumption that s 4K(4) had no application in customs prosecutions. [34] Whatever might have been the position in 1999, the High Court has now held that Bibaoui was correctly decided: Putland v The Queen. 48 I can see no reason why the ratio of Bibaoui (namely, that s 4K(4) has no application in trials on indictment) should be restricted to trials on indictment. The reasoning compels a conclusion that the section cannot be applied in proceedings such as the present. It is therefore necessary to impose a penalty in respect of each offence. 43 Kelly v Wong and Rizoli Pty Ltd [1998] NSWSC 711; Liang [2005] NSWSC 591; Coulton [2005] NSWSC 869; Ozzy Tyre and Tube Pty Ltd [2005] NSWSC 948; Hajied [2006] NSWSC 34. 44 (1999) 43 ATR 179. 45 See note 43. 46 [1997] 2 VR 600. 47 (1998) 72 SASR 490. 48 (2004) 218 CLR 174. -- 15 of 25 -- 14 Imprisonment in default of payment - power [35] The plaintiff submits that in each case I should order imprisonment in default of payment of the penalty. He does so in reliance on s 15A(1) of the Crimes Act 1914. That section provides: “Enforcement of fines etc. (1) A law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth. The law applies: (a) so far as it is not inconsistent with a law of the Commonwealth; and (b) with the modifications made by or under this section.” By s 3(2) of that Act, a reference to a fine includes a reference to a pecuniary penalty (with irrelevant exceptions). The plaintiff submits that s 182A of the Penalties and Sentences Act 1992 is a law “relating to the enforcement or recovery of a fine” within the meaning of that section. [36] Section 182A relevantly provides: “Court may make order for default payment of penalty (1) A court that orders an offender to pay a penalty may also order that, if the offender fails to pay the penalty immediately or within the time allowed by the court in its order, the offender is to be imprisoned for a term calculated under subsection (2)(a). (2) The term of imprisonment— (a) must be— (i) the term that, in the court’s opinion, will satisfy the justice of the case; but (ii) not more than 14 days imprisonment for each penalty unit, or part of a penalty unit, that the offender was ordered to pay; and (b) must be served cumulatively with any term of imprisonment the offender is serving, or has been sentenced to serve, unless the court orders otherwise.” A penalty unit for the purposes of that section is $75.49 [37] Dicta in support of this argument can be found in the judgments of Atkinson J at first instance and McMurdo P in the Court of Appeal when separate preliminary issues in this case were before the Court.50 The correctness of the argument was implicitly assumed when it was used to support the decision of a full Federal Court in Jiang.51 49 Penalties and Sentences Act 1992, s 5. 50 (2000) 157 FLR 395 at para [91]; (2001) 47 ATR 448 at para [59]. 51 (2001) 111 FCR 395 at para 78. -- 16 of 25 -- 15 [38] The defendants did not challenge the proposition that this section was a law “relating to the enforcement or recovery of a fine” within the meaning of s 15A of the Crimes Act 1914.52 They submitted that it did not apply because it was inconsistent with a law of the Commonwealth, namely s 247 of the Customs Act 1901.53 They conceded that absent such a provision, s 182A could be applied. They submitted that that provision required prosecutions instituted under s 245 (as these proceedings were) to be prosecuted and proceeded with in accordance with the Uniform Civil Procedure Rules. Those rules contain specific, elaborate and comprehensive provisions for the enforcement of money orders, but no provision for ordering imprisonment in default of payment. Section 182A of the Penalties and Sentences Act 1992 was therefore inconsistent with them and consequently with s 247 of the Customs Act 1901. It therefore was not applied by s 15A(1) of the Crimes Act 1914. Having elected to proceed in the civil jurisdiction of the Supreme Court, the plaintiff could not rely upon s 182A. [39] In response the plaintiff submitted that no inconsistency arose by reason of the nature of the proceedings. He submitted that the decision of the High Court in Thomas v Ducret54 implied that so long as the State act authorises a court to order imprisonment in default for non-payment of a penalty, it may do so whatever the nature of the proceeding that led to the federal conviction in respect of which the penalty was imposed. He further submitted that s 261 of the Customs Act 1901 specifically contemplate that a person who is convicted and ordered to pay a pecuniary penalty may be imprisoned for non-payment of the penalty. [40] Section 247 of the Customs Act 1901 provides: “Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the court in civil cases or in accordance with the directions of the court or a Judge.” Plainly that section should be interpreted as though the words “if there is none which deals with a point” appeared after each of the first two procedural options. [41] There are four preliminary questions which the defendant's argument raises. They are: first, is imposing imprisonment in default a method of enforcement of an order of the Court; second, is the expression “commenced prosecuted and proceeded with” apt to include enforcement of an order; third (given the absence of any rules for Crown suits in revenue matters), is there a usual practice and procedure of the Court for enforcement of money orders; and fourth, is an order for payment of a pecuniary penalty a money order as understood in that practice and procedure. Only if all of these questions are 52 Their approach seems correct: Thomas v Ducret (1984) 153 CLR 506; see also Australian Competition and Consumer Commission v Hartwich [2002] FCA 273 at para [44]. 53 For the sake of simplicity I shall not repeat references to the corresponding provisions of the Excise Act 1901 in the balance of this discussion. 54 See note 52. -- 17 of 25 -- 16 answered in the affirmative are the terms of s 247 engaged. If those questions are answered in the affirmative, it becomes necessary to ask whether there is any inconsistency between s 247 and s 182A of the Penalties and Sentences Act 1992. [42] It is unnecessary for me to answer the preliminary questions in the present case. I proceed on the assumed basis that imposing imprisonment in default is a method of enforcement of an order of the Court; that the expression “commenced prosecuted and proceeded with” is apt to include enforcement of an order; that there is a usual practice and procedure of the Court for enforcement of money orders, and that it is to be found in ch 19 of the Uniform Civil Procedure Rules; and that an order for payment of a pecuniary penalty is a money order as defined in the Supreme Court of Queensland Act 1991, sch II, which applies to those rules. It follows from those assumptions that a penalty imposed by the Court under s 234 of the Customs Act 1901 may, by virtue of s 247, be enforced by the procedures set out in ch 19 of the Uniform Civil Procedure Rules. [43] On this basis, is there any inconsistency between s 247 and s 182A? In my judgment there is not. I reach that conclusion for two reasons. First, it is not possible to achieve semantic inconsistency unless s 247 be read as if the word “only” were inserted between “proceeded with” and “in accordance” where first appearing. The section provides that a customs prosecution “may” be prosecuted etc. That does not denote exclusivity. If, for example, one were to find another provision relating to enforcement in the statutes of the Commonwealth, there would be no inconsistency between that provision and s 247. No policy reason has been suggested why the section should be treated as other than facultative. It is true that in many respects the section probably provides the only method for doing many of the things which have to be done in the course of a prosecution. That is not a reason for treating it as a limiting provision. There is no reason why the words of the section should not be given their natural meaning. So read, they permit enforcement by other means than those caught up in the section. On this interpretation of s 247, it is not inconsistent with s 182A of the Penalties and Sentences Act 1992. [44] Second, even if that interpretation is wrong, it is not correct to say that s 247 mandates enforcement only in accordance with the Uniform Civil Procedure Rules. On that basis, s 247 requires enforcement in accordance with the practice in revenue matters if there is one which deals with a point; if there is none such, in accordance with the Uniform Civil Procedure Rules if they deal with a point; and if there is none such, in accordance with the directions of a judge. The Uniform Civil Procedure Rules do not deal with the imposition of default imprisonment in respect of pecuniary penalties. They could do so, but they do not. Consequently, under s 247, the matter must be dealt with by the directions of the Court or a judge. The defendants submitted that this could not be interpreted as conferring a power to fashion any sort of novel order which might aid in the enforcement of a judgment. Any directions which might be given, they submitted, must be ones which the judge is otherwise empowered to give. I am prepared to assume that this submission is correct. The fact is that a judge in Queensland is empowered by s 182A to make an order for default -- 18 of 25 -- 17 imprisonment. There is no reason to read “directions” in s 247 so narrowly that it excludes an order made pursuant to this power. For this reason also, there is no inconsistency between that section and s 182A. [45] There are indications elsewhere in the Customs Act 1901 which support the existence of this power. Reference is made in s 254(2) and s 255(4)(b) (and in the corresponding provisions of the Excise Act) to “proceedings for an indictable offence or an offence directly punishable by imprisonment”. The second of those alternatives seems intended to exclude offences not directly punishable by imprisonment. Offences punishable by imprisonment in default of payment of a pecuniary penalty would be such offences. It is difficult to think of anything else which would be. [46] Further, as the plaintiff pointed out, s 261 explicitly envisages the suffering of imprisonment for non-payment of a penalty. The defendants sought to distinguish the imposition of default imprisonment from imprisonment for non- payment of a penalty. They submitted that the latter expression referred only to imprisonment under the former s 258, which was repealed in 1957. “For some strange reason” in their submission, s 261 was not repealed at the same time. This is a brave submission. It proposes a highly improbable scenario. Moreover, it posits the existence of two different types of imprisonment when really there is no difference of substance between them. Section 258 provided that where any pecuniary penalty was adjudged to be paid by any convicted person, a court might commit the offender to jail until the penalty was paid. Section 260 provided a scale to determine the duration of imprisonment by reference to the amount of the penalty. There is little difference in principle between those provisions and s 182A of the Penalties and Sentences Act 1992, which provides for an order that if the offender fails to pay the penalty immediately, he be imprisoned for a term calculated in accordance with the penalty unit value of the amount ordered to be paid. Section 15A of the Crimes Act 1914 was first enacted in 1960. 55 It is quite possible that s 261 of the Customs Act 1901 was retained in 1957 because it was assumed that the state provisions would apply by virtue of s 79 of the Judiciary Act 1903. [47] On the question of inconsistency, the position is not dissimilar from that which arose in De Vos v Daly.56 While that case was decided in relation to different legislation, it does in my judgment provide an analogy with the present. It supports the conclusion which I have reached above. Imprisonment in default of payment – appropriateness and duration [48] I turn therefore to s 182A of the Penalties and Sentences Act 1992. The plaintiff submitted that I should order that the second and third defendants be imprisoned for five years if they fail to pay the total penalty which he submitted I should order under s 4K(4) of the Crimes Act 1914. Even allowing for the point already discussed in relation to s 4K(4), that submission was elliptical. The first matter to observe about s 182A is that it confers a discretion. I am not obliged by the legislation to order imprisonment in default. In determining 55 It was then numbered 18A. 56 (1947) 73 CLR 509. -- 19 of 25 -- 18 whether I should exercise the discretion it is helpful to identify the purpose or purposes of making such an order. There are in theory two such purposes: to aid in the enforcement of payment of the penalty and to provide an alternative form of punishment for the offence. The first is self-evident. It is necessary to say a little more about the second. [49] It is clear from reading the Customs Act 1901 and of the Excise Act 1901 that a distinction is drawn between offences for which imprisonment may be imposed and those for which a pecuniary penalty may be imposed. A not dissimilar distinction occurs in the Trade Practices Act 1974. Orders for default imprisonment have long been made in proceedings under that Act where a fine was the only available penalty. It seems that in the 1980s some judges of the Federal Court concluded that the only purpose of such orders was to enforce payment of the fine. In Wilde v Menville Pty Ltd, Smithers J said: “Accordingly I regard it as necessary to order and fix the terms of imprisonment applicable in each case in default of payment of the fines imposed and in doing so have in mind that Parliament excluded imprisonment as the primary punishment for the offences. Parliament has indicated in the clearest possible way that contraventions of the sections with which the defendants have been charged are to be punished by fines and not by imprisonment. The period of imprisonment contemplated in s.18A of the Commonwealth Crimes Act is solely to enforce the payment of those fines and is not be considered as a punishment for the primary offence. It is designed to encourage payment of the fines and questions of ability to pay inevitably obtrude.” 57 [50] In Reardon v Nolan Fisher J took that reasoning to its logical conclusion: “As I am asked to proceed on the basis that the defendant does not at present have the ability to make any payment at all, the imposition of a term of imprisonment will not assist in any way in enforcing the payment by him of his fines. If the fixing of a term of imprisonment can in no way assist the enforcement of payment of fines, there would appear to be no ground for imposing it except as an alternative punishment for the main offence. In my opinion because this alternative form of punishment is expressly denied, I must pay regard only to the question of encouraging or aiding the payment of the fine. The fact that s.18A is directed to the enforcement of fines is relevant to my exercise of discretion as is the requirement that the imprisoning laws be not inconsistent with the laws of the Commonwealth. This reinforces my view that until some ability to pay even a small instalment towards the fines is established, any prison term can only be regarded as punishment for the primary offence.”58 His Honour refused to order default imprisonment in that case. 57 (1980) 50 FLR 380 at pp 395-6 (emphasis added). This decision was overruled on another ground in Thomas v Ducret (1984) 153 CLR 506. 58 (1983) 74 FLR 309 at p 313. -- 20 of 25 -- 19 [51] That approach has influenced the decisions in Trade Practices Commission v Farrow, 59 Trade Practices Commission v J & R Enterprises Pty Ltd60 and Australian Competition and Consumer Commission v Hartwich.61 [52] Whatever may be the position under the Trade Practices Act 1974, I do not think this approach is applicable to the Customs Act 1901 or the Excise Act 1901. It is no doubt correct that the primary punishment which may be imposed for an offence under s 234 of the Customs Act is a pecuniary penalty; there is no power to order imprisonment directly for an offence under that section. However the Act contemplates that an offence may be indirectly “punishable” by imprisonment. 62 It includes provisions which permit the imposition of extremely high monetary penalties and in some cases (such as the present) mandate them. It will frequently be the case where such penalties are imposed that the offenders are incapable of paying them. Many offenders may be expected to ensure that they are incapable of paying anything toward the penalty. Not to impose imprisonment in default in such a situation would be to grant immunity for impecuniosity. In my judgment both punishment and enforcement are purposes for which imprisonment in default of payment of a pecuniary penalty may be ordered. [53] Having regard to the seriousness of the offences and the paucity of mitigating circumstances in the present case, I have come to the conclusion that I should make an order under s 182A of the Penalties and Sentences Act 1992. [54] The next question is: how much imprisonment should be ordered for each offence? There can be no question of imposing anything like the maximum permitted by s 182A(2)(ii) in respect of any offence; it would not be possible to formulate an order doing so which would satisfy the justice of the case63 . The lowest penalty is that for the evasion of excise duty in respect of the first Fiji shipment, $16,172.50. That equates to 216 penalty units, so the maximum term of imprisonment would exceed eight years for the lowest of the 15 penalties. The only fair approach is to assess the appropriate total period of default in the event that no part of any of the penalties is paid and apportion it among all of the offences. That might well be regarded as undertaking a process akin to the application of the totality principle. It might also be possible to formulate an order which provided for the imprisonment to be in part concurrent, but such an order would be complex and prone to unforeseen consequences in implementation. [55] The plaintiff submitted that its suggested total default period of five years was supported by penalties imposed for offences of defrauding the Commonwealth in comparable circumstances.64 That is in my judgment an acceptable approach. It was challenged by the second and third defendants on the basis that had the legislature wished to expose an offender to such a period of imprisonment, it 59 (1990) 95 ALR 53. 60 (1991) 99 ALR 325. 61 [2002] FCA 273. 62 See para [45]. 63 Section 182A(2)(i). 64 R v Anderson, District Court, 16 December 2005; R v Baker, District Court, 19 November 2004; R v Pittard , District Court, 10 March 2003; R v Kazacos (1999) A Crim R 252. -- 21 of 25 -- 20 would have made direct provision for such a sentence in the act. I have expressed my opinion on that argument above. In my judgment the legislature has made provision for such imprisonment, but indirectly. It has given the offender the option of avoiding imprisonment by payment of the penalty. This consequence might be thought offensive in that it favours the very wealthy, but that is not a consideration of sufficient weight to justify any other interpretation of the legislation. [56] The defendants did not suggest that the cases cited by the plaintiff were not comparable, nor did they cite any other cases as of assistance. I accept the plaintiff's submission that a total default period of about five years is appropriate. That can be achieved by imposing default periods calculated at the rate of one day for every $2,800 of penalty. The separate position of Mr Bryce [57] Somewhat reluctantly the defendants submitted that I should impose a lower penalty on Mr Bryce than on Mr Wright. They submitted that a basis for doing so could be found in the relative importance of their different roles and the fact that Mr Bryce did not blame other people in his evidence. I had some initial sympathy for this submission, but that was I think due to the fact that Mr Wright spent much more time in the witness box than Mr Bryce, which tended to create a false impression that he was the ringleader of the operation. He manufactured the false paperwork and implemented the scheme by applying for export clearance on Labrador's behalf, but Mr Bryce's role in packing the containers was equally important. I have come to the conclusion that they are equally culpable. Time to pay [58] The second and third defendants asked that if (contrary to their submissions) I imposed a period of default imprisonment, they be given 12 months to pay the penalties. The only basis for this request was that otherwise, they would be liable to imprisonment immediately, whereas with time to pay there might be a chance of their paying at least some of the penalties. They did not suggest that this was their intention, and on the evidence (absent winning Lotto or the miraculous reappearance of the proceeds of sale of the goods upon which duty was evaded) they have no capacity to make any significant payment. I see no point in allowing such a period. In any event I doubt if, in the absence of time being allowed, they would be arrested immediately. Assuming the provisions of the State Penalties and Enforcement Act 1999 apply, they will probably take a while to implement. Reparation [59] The plaintiff has applied for orders for reparation pursuant to s 21B of the Crimes Act 1914 in relation to the unpaid duty. That section relevantly provides: “(1) Where: (a) a person is convicted of a federal offence; or (b) …; -- 22 of 25 -- 21 the court may, in addition to the penalty, if any, imposed upon the person, order the offender: (c) to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence;” The power conferred by the section is discretionary, 65 but it has been said, “[p]rima facie, where the offence committed by the offender has caused loss, a reparation order ought to be made”.66 In the present case the elements of the section are satisfied, at least as regards the second and third defendants, and there appears to be no sufficient reason why the discretion should not be exercised in the plaintiff's favour; impecuniosity, while relevant, does not determine the matter.67 Indeed, the defendants made no submissions regarding reparation. I expressed some doubt in the course of argument as to whether a reparation order could be made against the very debtor liable to pay the duty in respect of the duty unpaid. (The amount is of course recoverable from Labrador as a debt.68 ) In the absence of any submissions and having regard to the fact that such an order was made in Preston,69 albeit without argument, I shall make the order against all defendants. Costs [60] The plaintiff seeks costs. Section 263 of the Customs Act 1901 provides:70 “In a Customs prosecution, whether commenced before or after the commencement of this section, a court may award costs against a party, and, where an amount of costs is awarded against a party other than the prosecutor, section 259 and any provision of a law of a State or Territory that, by virtue of an Act other than this Act, applies in relation to the recovery of pecuniary penalties under this Act apply in relation to the recovery of the amount of costs so awarded as if it were a pecuniary penalty adjudged to be paid by the party under this Act.” There is no reason why costs should not follow the event. The defendants have made no submissions on the question. The defendants should pay the plaintiff’s costs of the proceedings to be assessed. It is unclear whether the extended definition of “fine” in s 3(2)(b) of the Crimes Act 1914 applies to costs before they have been quantified by assessment, but in any event the plaintiff has not sought an order for the imposition of imprisonment in default of payment of costs. 65 Gould v Commissioner of Taxation (1998) 98 ATC 4946. 66 Davies v Taylor (1997) 38 ATR 8 at p 23, cited in Gould at p 4,951. 67 R v Knight (1990) 51 A Crim R 323. 68 Customs Act 1901, s 153; Excise Act 1901, s 161. 69 [2000] QCA 186. 70 Excise Act 1901, s 152. -- 23 of 25 -- 22 Orders [61] The orders which I propose to make are set out in the schedule to these reasons. I shall discuss them with counsel before formally pronouncing them. -- 24 of 25 -- 23 SCHEDULE Orders 1. I order that each defendant pay the penalties set out in column 2 of the table below in respect of offences under s 234(1)(a) of the Customs Act 1901 (“CA”) and the penalties set out in column 5 of that table in respect of offences under s 120(1)(iv) the Excise Act 1901 (“EA”). 2. I order that if the second defendant or the third defendant fails to pay any such penalty immediately, he be imprisoned for the term set against that penalty in column 3 (in respect of the CA penalties) or column 6 (in respect of the EA penalties). 3. I order that the defendants make reparation to the Commonwealth of Australia of the amounts set out in columns 4 and 7 of the table below. 4. I order that the defendants pay the plaintiff's costs of these proceedings to be assessed. 5. I grant all parties liberty to apply on five days notice to the other parties. 1 2 3 4 5 6 7 Voyage CA penalty Default CA reparation EA penalty Default EA reparation $ Days $ $ Days $ Fiji 1 665,889.40 238 133,177.88 16,172.50 6 3,234.50 Fiji 2 527,500.10 188 105,500.02 112,545.35 40 22,509.07 Fiji 3 591,682.45 211 118,336.49 18,608.35 7 3,721.67 Fiji 4 632,557.30 226 126,511.46 61,076.85 22 12,215.37 Fiji 5 636,902.85 227 127,380.57 61,076.85 22 12,215.37 Fiji 6 372,873.00 133 74,574.60 51,762.15 18 10,352.43 Fiji 7 533,359.70 190 106,671.94 362,422.75 129 72,484.55 Honiara - - - 416,858.50 149 83,371.70 -- 25 of 25 --