Customs, Chief Executive Officer v Neale [1999] QSC 423

I' • Reporting Bureau 1______________________________--____----------______________________________ __ 1----------------------------------------------------------------------------I TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MOYNIHAN J No 3338 of 1997 THE CHIEF EXECUTIVE OFFICER OF CUSTOMS -and CHRISTOPHER CHARLES NEALE BRISBANE .. DATE 03/11/99 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date Plaintiff Defendant \tll FIIIIII', TlteL:1IV Courts, Cl'orgl' Strl'et, Brisballl', Q. ·tfl()O -- 1 of 6 -- 031199 T4-5/RK21 M/T 6527/99 (Moynihan J) HIS HONOUR: The issue in these proceedings relates to the penalties to be imposed on the defendant who has been convicted of three offences against the Customs Act 1901. The offences arise out of the same transaction whereby the 10 defendant deliberately set out to mislead the revenue authorities in respect of the duty payable on an imported motor vehicle. The defendant, having suffered a loss on an earlier transaction, might be regarded as having engaged in cthe enterprise in an endeavour to recoup that loss. 20 The defendant although initially defending the action in the formal sense of delivering a defence, upon it being pointed out that more was required, indicated his i(: acceptance of the allegations and of the consequences which 30 I am now engaged in dealing with. It perhaps should be noted at this stage that as I c understand it, beyond that it cannot be said that the defendant cooperated with authorities. So far as the material before me reveals, however, the offences reflected a once-off occurrence although as I have said, it was a deliberate attempt to defraud the revenue 3(, 50 which involved the commission of the separate offences of smuggling, the evasion of duty, and of the making of a false statement. 2 JUDGMENT -- 2 of 6 -- 031199 T4-5/RK21 M/T 6527/99 (Moynihan J) The maximum penalty or the penalty range, to put it more accurately, which is applicable to the offence of smuggling, is a penalty reflecting a mUltiple of two to five times the primary duty foregone had the offence been successful. 10 In the present circumstances, that is a range of $25,561.16 to $63,902.90. So far as the evasion aspect is concerned the range there is between two to five times the duty foregone had the offence been undetected. That gives a 20 range of $15,751.16 to $39,376.90. The penalty applicable in respect of the false statement is $5,000 plus twice the amount of duty payable, but not to exceed $30,561.16. It is important to note because of an issue that arises about time to pay and the imposition of a default imprisonment provision in the light of the defendant's financial position that there are minimum penalties imposed in respect of each of the offences. In dealing with offences of this kind, it is in my view important to bear in mind the considerations identified by .jQ Kitto J in Vogel v. Anderson (1968) 120 CLR 175, where he identified at page 164 the following considerations: " That the Customs law was a manifestation of the intention of the Parliament in respect of an important aspect of the economic organisation of the community and it needed to be enforced in circumstances where Customs officials had necessarily to rely extensively on the information supplied them by importers and that 3 JUDGMENT 50 60 -- 3 of 6 -- 031199 T4-5/RK21 M/T 6527/99 (Moynihan J) in effect the flow of commerce would be seriously inhibited if people felt themselves free to mislead." It is also to be borne in mind that because of the sheer volume of transactions, offences are not necessarily easily detected. Those things having been said, the offences committed here in my view lie in about the middle of the range so far as culpability relevant for the purpose of penalty is concerned. It would, for example, be entirely different on the one hand if the transaction was part of a chain of transactions habitually engaged in by the defendant for the purpose of defrauding the revenue. But on the other hand, it would be different as in the case of Garland v. Mangos, 50 FLR 469, there was no intent to 10 20 In 30 defraud the revenue and no deliberate misdescription of the c: goods. In the whole of the circumstances, in respect of the smuggling offence, I impose a penalty of $32,000. In respect of the offence of evasion of duty, I impose a penalty of $20,000. And in respect of the offence of making a false statement, I impose a penalty of $10,000. What do you want to do about time to pay, Mr Nolan? 4 JUDGMENT 30 50 40 60 -- 4 of 6 -- 031199 T4-5/RK21 M/T 6527/99 (Moynihan J) HIS HONOUR: What I will do is, I will allow 12 months to pay. In the event that the amount has not been paid within the 12 month period, the defendant is to file an affidavit 10 stating his financial' circumstances from the perspective of the rate of payment to that date and containing a realistic and justified offer as to the payment of any balance. And in the event of him not satisfying the Court that he 20 has made realistic endeavours to pay the penalty, and that his proposal is realistic, having regard to his financial situation, I would look at a default imprisonment term. But before I do that, there is one other thing that you perhaps both need to think about. And that is, we have got three offences. Whether Mr Redmond, for example, you would wish to apportion the payments to the discharge across the liability for the three, or whether you want to discharge the offences one at a time is obviously a matter for you. I mean, in other words, we can put a default period at the end of each offence and he could knock off one offence at a time, which I suspect is a better way to do it rather than if you attribute a proportion of each payment across the three offences. MR NOLAN: One at a time would be my submission. 5 JUDGMENT I~ 30 20 40 50 60 -- 5 of 6 -- 031199 T4-5/RK21 M/T 6527/99 (Moynihan J) MR REDMOND: Certainly the plaintiff would adopt that course, Your Honour. HIS HONOUR: Now, in default, what term do you ask for? HIS HONOUR: Well, in respect of each of the offences, in default, imprisonment in terms of the Penalties & Sentences Act default provisions. 6 JUDGMENT 10 io tn JO 3~J 50 4() 60 -- 6 of 6 --