Local Court New South Wales Medium Neutral Citation: Comptroller-General of Customs v Manurung [2019] NSWLC 15 Hearing dates: 6 May 2019 Date of orders: 6 June 2019 Decision date: 06 June 2019 Jurisdiction: Criminal Before: Huntsman LCM Decision: Both defendants are convicted and fines imposed as per the orders Catchwords: Prohibited imports, Russian military aircraft parts, s16A matters, financial circumstances of defendants; utilitarian value of pleas of guilty Legislation Cited: Crimes Act 1914 (Cth) Customs Act 1901 (Cth) Cases Cited: Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Xiao v R [2018] NSWCCA 4 Mahdi Jahandideh v R [2014] NSWCCA 178 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Wu v R [2016] NSWCCA 96 R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 Category: Sentence Parties: Comptroller- General of Customs (Prosecution) Doris Maulina Manurung (Defendant) Aviation Spare Parts Pty Ltd (Defendant) Representation: Australian Government Solicitor, for the Prosecution Ms Boyd, solicitor for Defendants File Number(s): 2018/00389244 2018/00389221 2018/324235 Judgment Background 1. Pleas of guilty were entered by both defendants, to a number of charges as detailed below, after some period of negotiation, and the matters were listed for sentence. The sentencing hearing consisted of evidence and submissions, by the defendants, and the Crown. Agreed facts were tendered. Both defendants were charged with Customs Act 1901 (Cth) offences, in relation to offences arising in the course of the import and export of aircraft parts for Russian military aircraft. The two defendants are Aviation Spare Parts Pty Ltd (ASP), a registered company, trading in New South Wales; and Dorisma Manurung (Manurung). Manurung is the spouse of Gregory Skierka (Skierka), who is the sole director of ASP. Ms Manurung is also the Sales Manager of ASP and has the day-to-day control of the business activities of ASP. The background to this matter is well set out in the Statement of Agreed Facts tendered at the sentencing hearing, and states as follows. 2. ASP has been charged with, and pleaded guilty to, 7 counts of importing prohibited imports, namely Russian origin military aircraft parts, contrary to s 233(1)(b) of the Act. The offences span the period July 2015 to April 2017 and relate to 11 separate importations (described in the Court Attendance Notice as Goods 1 to Goods 11 respectively). 3. ASP has also been charged with, and pleaded guilty to, 1 count of causing a statement to be made to an officer of Customs that was false or misleading in a material particular, namely that goods for export were described as a 'Head Up Display', when in fact the good for export was a 'H019-02 A3 Transmitter', contrary to s243U(1)of the Act. 4. Manurung has been charged with, and pleaded guilty to, 7 counts of aiding, abetting, counselling or procuring, or being directly or indirectly concerned in the commission of offences against the Act by ASP, namely the 7 counts of importing prohibited imports, being Russian origin military aircraft parts (s 233(1)(b) read with s 236 of the Act). 5. Manurung is a 42 year old Indonesian born Australian resident. She and Skierka have two children aged 10 and 2. 6. Manurung arrived in Australia in 2004. She was educated in Indonesia. Since arriving in Australia she has been employed as a waitress, as an assistant in a supermarket, in a travel agent and in a sales role at Global Aviation Spares Pty Ltd (GAS), a company which trades in aircraft supplies. Manurung worked for GAS for 2 to 3 years and was then retrenched. Manurung then decided to utilise her sales contacts and skills obtained at GAS and established ASP in around November 2012. 7. ASP is a supplier of aviation spare parts. It does not manufacture any parts. Rather, on receiving a request to quote, it obtains pricing from established contacts and a database of aircraft suppliers. 8. ASP's business model is based on fulfilling a customer order from a variety of suppliers and selling the entire order at a higher price than it costs ASP to purchase the goods. 9. ASP originally only supplied parts for commercial aircrafts. Since about mid-2015 ASP's business has also included the importation and exportation of spare parts for military aircraft, in particular, the Sukhoi Su-27. Encyclopaedia Britannia describes the Su-27 as follows: Sukhoi Su-27, also called (NATO designation) Flanker, Russian air-superiority fighter plane, introduced into the air forces of the Soviet Union beginning in 1985. It is now one of the premier fighters of Russia, Ukraine, Belarus, Kazakhstan, Uzbekistan, Indonesia, India, China, and Vietnam... Work on the Su-27 began at the Sukhoi design bureau in 1969 in direct response to the development of the F-15 Eagle fighter of the United States. While early prototypes were seen as inferior to the F-15, chief designer Mikhail Simonov gradually molded the Su-27 into what was arguably the finest air-superiority platform of the 20th century. Like its Cold War counterpart, the Su-27 developed into a large long-range interceptor, powered by twin turbofan engines and displaying a remarkable agility for its size. It is capable of flying at more than twice the speed of sound, has a service ceiling higher than 18,000 metres (59,000 feet), and has a flight range of more than 3,000 km (1,800 miles). Armament includes radar-guided or infrared-homing ("heat-seeking") air-to-air missiles, unguided air-to-ground rockets, conventional bombs and cluster bombs, and a gun firing 30-mm exploding shells. The offending behaviour 1. The Statement of Agreed Facts [paragraphs 10 – 28] states as follows. Military aircraft and components for military aircraft are listed on the Defence and Strategic Goods List 1996 (DSGL), an instrument made under s 112(2A)(aa) of the Act, and the exportation of such goods is prohibited under regulation 13E of the Customs (Prohibited Export) Regulations 1958 (Cth) unless "...a permission in writing to export such of those goods as are specified in the permission has been granted by the Minister for Defence or by an authorised person, and the permission is produced to a Collector". All of the goods that are the subject of the charges were imported with the intention of being exported. One transmitter and two Head Up Display units (the Tenth Goods and Eleventh Goods respectively), were seized by the Australian Border Force (ABF) prior to export on the basis that they were prohibited imports (within the meaning of the Act). ASP's sole buyer of Sukhoi military aircraft parts was an Indonesian company, PT Mulindo Citra Pratama, which the defendants assert is a company contracted to supply the Indonesian Airforce. When exporting the spare parts, Manurung dealt with the Department of Defence, Defence Export Control Office (DEC), to acquire permits to export the goods. In seeking the relevant permissions to export Manurung, on behalf of ASP, informed DEC that the intended recipient of the goods was the Indonesian Airforce. DEC export permits were required to export the goods because each of the goods were components for military aircraft, the exportation of which is prohibited under regulation 13E of the Customs (Prohibited Export) Regulations 1958 (Cth) unless a permission in writing to export such of those goods as are specified in the permission has been granted by the Minister for Defence or by an authorised person, and the permission is produced to a Collector. Australia implements an autonomous sanctions regime in relation to Russia. The Australian Government announced on 19 March 2014 that it would impose a sanctions regime in response to the Russian threat to the sovereignty and territorial integrity of Ukraine. On 1 September 2014 the then Prime Minister announced expanded autonomous sanctions in relation to Russia, Crimea and Sevastopol. Australian law prohibits the import, purchase or transport of the following 'import sanctioned goods' for Russia if the goods originate in, or are exported from, Russia: • arms or related material without a sanctions permit. These particular sanctions commenced on 31 March 2015. The Minister for Foreign Affairs may grant a sanctions permit authorising an activity that would otherwise contravene these prohibitions if the Minister is satisfied that it would be in the national interest to do so. Applications for permits authorising the import or export of sanctioned goods occurs via the Online Sanctions Administration System managed by the Department of Foreign Affairs and Trade (DFAT). In or about March 2017 Manurung, on behalf of ASP, made an application to DEC for the export of various aircraft parts to Myanmar. A DEC officer informed Ms Manurung that the export of military aircraft parts to Myanmar was the subject of Australian autonomous sanctions and an application for export approval needed to be made to DFAT. Following this advice, Ms Manurung made an application on the Online Sanctions Administration System for the supply of various aircraft parts to the Myanmar Air Force (the End User). ASP was advised by DFAT that the proposed supply to the End User would constitute the supply of 'export sanctioned goods' in regulation 4 of the Autonomous Sanctions Regulations 2011 (Cth), as it applies to Myanmar. DFAT advised that ASP's application had not yet been put to the Minister, however based on the information provided by ASP the recommendation to the Minister would be that the supply would not be in the national interest and a permit should not be granted. At no stage did ASP, or Manurung on behalf of ASP, apply to DFAT for permission to import the Russian origin military aircraft parts that are the subject of the present charges. False statement charge and the circumstances of which led to the commencement of the investigation 1. On or about 13 April 2017 ASP provided information to BTAP Logistics International Pty Ltd (BTAP) for the purposes of BTAP lodging an Export Declaration Notice(EDN) on behalf of ASP for goods that were intended for export. The information provided to BTAP for the purposes of lodging the EDN included an invoice from ASP addressed to the following customer [details of address in Indonesia supplied in Statement of Agreed Facts]. 2. The invoice contained the following description of the goods to be exported: ….. / ILS-31 HUD Serial #1596 3. On 13 April 2017, BTAP lodged EDN ACWY9WMG7 with the then Department of Immigration and Border Protection on behalf of ASP. In lodging EDN ACWY9WMG7, BTAP made a statement to an officer of Customs (within the meaning of the Act). The EDN ACWY9WMG7 described the goods to be exported as: Head Up Display. The consignment to which EDN ACWY9WMG7 related was accompanied by DEC Export Permit DOD/MEP/17313952 issued on 3 February 2017 which authorised a single shipment of up to two ILS-31 Head Up Display units (ILS stands for Instrument Landing System) up to 3 August 2017. Departmental records indicated that the permit had been previously used (in relation to EDN ACWRTG9X3 on 27 March 2017). As the permit was only valid for a single shipment, but was being used for a subsequent shipment an examination of the consignment was ordered by an ABF officer. The examination of the consignment revealed that the item for export was not a Head Up Display unit as indicated in EDN ACWY9WMG7, but rather it was a H019-02 A3 Transmitter. The transmitter was seized by ABF on the basis that it was reasonably suspected of being a prohibited import (within the meaning of the Act). In pleading guilty to the subject offences, the defendants concede that the transmitter is a prohibited import and that its importation was unlawful. 4. On 15 May 2017 ABF Officer Neil Home applied for and obtained Customs Act search and seizure warrants in respect of the business premises of ASP. The warrants were executed on 18 May 2017, at which time Manurung and Skierka were not present. Employees of ASP advised ABF officers that Manurung and Skierka were about to board an international flight to Indonesia. During the course of the warrant activity a significant quantity of documents relating to the importation and exportation of Russian origin military aircraft parts were identified and seized. Furthermore, two Head Up Display units (HUDs) were located and seized on the basis that they were reasonably suspected of being a prohibited imports. In pleading guilty to the subject offences, the defendants concede that the two HUDs are prohibited imports and that their importation was unlawful. 5. The seized documentary material, documents lodged electronically on ABF's Integrated Cargo System on behalf of ASP, and the seized items provided the foundation for the subject charges. 6. The documentary material includes: 1. import declarations that, in some instances, describe the goods with some specificity; 2. DHL and FedEx shipping documentation; 3. ASP incoming batch reports which identify the part number, item description and serial number of imported goods, as well as the ASP employee(s) who inspected the imported goods; 4. ASP invoices (when they on-sell the parts to PT Mulindo Citra Pratama) DEC permits for the export of goods; 5. ASP outgoing forms which identify the part number, item description and serial number of goods to be exported, as well as the person who inspected the goods for export; 6. commercial invoices in respect of the purchase of the goods by ASP - in most cases from UAB Elcom in Lithuania; and 7. manufacturing documentation in Russian script, which includes the part name, part number and a unique serial number. 1. In addition to the above material, the defendants have provided affidavits which annex various commercial documents relating to the importation and exportation of the Goods (save for the Tenth and Eleventh Goods which were seized and hence not exported). 2. Skierka participated in a Record of Interview (ROI) with ABF officers on 10 June 2017, during which he asserted the following: It was Manurung's skill that started up the business in the first place. Manurung knows how to run it. To get the parts and that she had the contacts to sell it. Manurung is in charge of the day-to-day business. Manurung worked for another business, GAS. He is essentially the face of the company. He and Manurung share in the profits of the business. ASP is "a family business" and he and Manurung have a shared financial arrangement. The parts imported by ASP are not for the Australian Air Force. They are for combat (military) aircraft, which is why ASP would seek an export permit to export the goods. The reason for importing the goods was a business reason - to prevent the ASP customer from knowing the identity of ASP's supplier. He didn't know where the parts were coming from or what the specific parts were, although he acknowledged that he was aware that they were for military aircraft. He didn't know that import approval was required for the goods. He only knew that ASP needed to obtain export approval. Summary of particulars of each offence 1. Significant detail was provided in the Statement of Agreed Facts as to the specifics of each particular offence, which will not be repeated in these Reasons for Decision, but are available on the court file. The Statement of Agreed Facts has considerable detail as to serial numbers and manufacturing documentation of the goods imported, subject of the charges, as well as details of significant documentary evidence supporting the charges. All of that detail will not be repeated, however a brief summary is as follows. 2. Sequence 1 involved two different sets of goods which have been rolled into one charge. The first goods were a Russian military aircraft unit part, which was declared on the Import Declaration Notice (IDN) as an aircraft part with the stated country of origin of Italy; the declared value on the IDN was US $6500, the actual purchase price paid by the defendants was $70,950 US; it was sold by the defendants for $168,000 US. It was exported on 31 July 2015, and the country of origin was New South Wales as declared on the export documentation and the description was "other parts of aeroplanes and helicopters". The second goods subject of sequence 1, were imported on 28 July 2015, involved a Heads Up Display for Russian military aircraft, it was described on the IDN as "heads up display" the country of origin was stated as China, the declared value is $15,000 US, the actual purchase price paid by the defendant was US dollars $54,500, the defendant sold the item $80,000 US, it was described on the export documentation as originating in NSW and as "other parts of aeroplanes or helicopter". At no time did ASP obtain a DFAT permit for the importation of Russian origin, arms material. 3. Sequence 2 involved one item, the third goods, being a part for Russian military aircraft, described on the IDN as "aircraft instruments" the declared country of origin was Lithuania, the declared value of the goods was $1100 US, the actual purchase price paid by the defendant was $28,000 US, sold by the defendants for $55,499 US, it was exported on 11 December 2015, the origin code was stated as the United States and the item described as "aircraft parts check and control panel". At no time did ASP obtain a DFAT permit for the importation of Russian origin, arms material. 4. Sequence 3 involved one item, the fourth goods, which involved three block switch power circuit units originating in Russia, it was described on the IDN as "block switch", originating in Italy and the declared value of the IDN was $1290 US, the actual purchase price paid by the defendants was $38,250 US, it was sold by the defendants for $69,862 US, it was exported on 31 December 2015 – the export documentation stated the origin code was the United States and the item described as "aircraft altimetre", with declared value of $46,575. At no time did ASP obtain a DFAT permit for the importation of Russian origin, arms material. 5. Sequence 4 involved three groups of goods imported and exported on different dates and thereby represented a rolled up charge - sequence 4 involved the fifth goods, sixth goods, and seventh goods. The fifth goods were Russian aircraft parts of power unit and receiver, described on the IDN as "X Samples" originating from Italy, purchase price declared on the IDN was $840 US, the actual purchase price was $22,000 US, it was sold for $38,750 US, exported on 2 March 2016, the origin code on the export documentation was Singapore and the goods described as "aircraft parts, low voltage power unit, receiver". The sixth goods in sequence 4, were an airborne magnetic recorder and a power supply unit, described on the IDN as "aircraft parts and power supply unit", the country of origin was Lithuania, the declared value on the IDN was $960 US, the actual purchase price was $30,600 US, the defendant sold the items for $41,877 US, the date of export was 24 March 2016, the declared country of origin was the United States, the description was "power supplies". The seventh goods included in sequence 4 were Russian aircraft parts including a copy and control unit, cards and a unit, described on the IDN as "aircraft parts", country of origin stated as Lithuania, declared value on IDN was $870 US, the actual purchase price was $59,300 US, the sale price was $107,500 US, the date of export was 24 March 2016, declared country of origin was United States, items described as "control equipment parts" "automatic controller". No DFAT permit for the importation of Russian origin, arms material, was obtained by ASP. 6. Sequence 5, the eight goods, were 4 fuel pumps for Russian aircraft described on the IDN as "pump 4EA", country of origin China, declared value on IDN $600 US, actual purchase price $31,920 US, sale price $44,000 US, date of export 4 May 2016, declared country of origin United States, described as "aircraft parts fuel pump". 7. Sequence 6, the ninth goods, involved Russian aircraft parts including a "heads up display", described on the IDN as "electronic LOC Unit ILS 31 video gaming sensor wireless trackball mouse", no country of origin specified, declared value on IDN of $550 US, actual purchase price $48,000 US, sold by defendant for $70,000 US (item seized on execution of search warrant, was not exported). No DFAT permit for the importation of Russian origin, arms material, was obtained by ASP. 8. Sequence 7 involved two sets of goods - the tenth goods and the eleventh goods. The tenth goods were also the subject of the false and misleading statement charge. The tenth goods were an aircraft part for Russian military aircraft, described on the IDN as "aircraft parts", country of origin described as Lithuania, declared value $950 US, purchase price of $85,000 US, sold by defendants for US$172,265. Described on export documentation as "heads up display, destination Singapore. ABF determined that ASP were using a single use export permit previously used and no longer valid and the consignment was seized on 2/05/17. No DFAT permit for the importation of Russian origin, arms material, was obtained by ASP in relation to the tenth goods, nor was the export permit valid. The eleventh goods were heads up display units, described on the IDN as "module", declared value being $640 US, actual purchase price paid was $90,000 US, sale price being $140,000 US. The eleventh goods were seized during execution of the Customs Act search warrant at the business premises of ASP. The eleventh goods were Russian origin arms material for which no DFAT permit had been obtained by ASP. Evidence on Sentence 1. The evidence on sentence consisted of: * The Statement of Agreed Facts * Affidavit evidence by Ms Manurung who was also cross-examined * Affidavit evidence of Mr Skierka who was also subject to cross-examination * Documentary evidence seized during the search warrants (refer exhibits 5, 6) - the contents of those documents were put to the defendants during cross-examination. * A spreadsheet relating to the evidence/documents relevant to each offence was also tendered by the Crown (refer exhibit 4) 1. It is necessary to engage with the material presented on sentence with some detail in these Reasons for Decision. This is because while the Statement of Agreed Facts were the agreed facts before the court, the defendants also presented evidence about their offending behavior in their affidavits. The purpose of the defendant's evidence appeared to be to indicate that they were unsophisticated, and unaware of the law, and that this would be relevant to an assessment by the court of the nature and circumstances of the offending behavior. The evidence presented needs to be assessed and findings made. 2. The Statement of Agreed Facts and documentary and other evidence before the court also indicated the following about the offences. The Consignor in relation to all sequences was either: a corporation based in New York, a corporation based in Hong Kong, a corporation based in Lithuania, or a corporation based in the Peoples Republic of China. All items were purchased by one customer, Mulindo, whom Manurung understood was a supplier to the Indonesian airforce. Mulindo used a sales agent known as Turbo (paragraph 34, Manunrung affidavit on sentence). Mulindo was not a military customer, but the defendants' understanding was he was a supplier to the airforce of Indonesia. The items that were exported before seizure of some items by the ABF were shipped to Singapore with the stated end user being the Indonesian airforce. The consignor company details were as follows – UAB Elcom, based in Lithuania, director Igor Pozamantir; Techmet Communications LLC based in New York, USA, director Igor Pozamantir; Xian Leying Trading (Hong Kong) Co Ltd; Messig Electronics Technology Co of Peoples Republic of China; Hang Yu International Electronics Technology, Hong Kong. In the majority of importations the consignor was UAB Elcom based in Lithuania, but the origin of the goods were variously declared on import documentation as Italy, Lithuania, China; and on export documentation as originating in the United States, Singapore, New South Wales. In many cases export documentation stated that the item was a Russian military aircraft part and the ASP invoices issued to their customer, Melindo, in most cases specified the serial number of the item, and sometimes referred to the item being a Sukhoi part. 3. Ms Manurung also stated in her affidavit that once an order was received she would negotiate a purchase price with ASP's supplier. She would then create and send an ASP purchase order to that supplier setting out the price and the supplier would issue an invoice for the goods (paragraph 30). When ASP received purchase orders it would raise an invoice on its customer and generally receive a 60 percent deposit with the balance payable on shipment (paragraph 32). Ms Manurung annexes a schedule and documents to her affidavit which included a number of purchase invoices for the goods, those purchase invoices contained serial numbers of the items, many of which were written in Russian script. 4. Ms Manurung states that she applied to Defence Export Controls for approval to export the goods (paragraph 39 of affidavit) and attaches export documentation to her affidavit. That documentation will not be summarized in its entirety in these reasons for decision, but indicates that on many of the Export Permit forms lodged by ASP the serial number of the item was recorded as "N/A" . Yet it is noted that on the purchase invoices annexed to the affidavit the serial numbers were recorded. For example, the details on the export document at p156 of the affidavit for four items state "serial number N/A' and "Manufacturer - N/A". The documents at p160, 161, 163, 168 refer to Sukoi aircraft". 5. The evidence presented by Ms Manurung and the Crown indicates that on export documentation the end user was stated as the Indonesian airforce, and that the destination of the goods was Singapore. 6. A significant amount of evidence was adduced by Ms Manurung and Mr Skierka as to their financial circumstances, and the financial circumstances of the defendant company. 7. The evidence of the director of the defendant company (and husband of Ms Manurung, Mr Skierka) was contained in affidavit and stated as follows. Mr Skierka is the registered director of Aviation Spare Parts Pty LTD (ASP). He is married to Ms Manurung and they have two children, currently aged 10 and 3. He is a qualified builder and continues to work as a builder. ASP as a business was started, and is run by, his wife. Mr Skierka states that his wife makes all the key decisions regarding ASP and maintains all customer relationships. 8. Mr Skierka states that ASP's business is the purchase and sale of aircraft components. ASP purchases components from foreign suppliers and resells those goods at marked up prices to international customers. In most cases, ASP would not first import goods for the purpose of re-export to its customers, rather ASP would arrange the foreign supplier to export the goods directly to the customer. An exception was goods for sale to Indonesian customers, where the end-user was Indonesian air force. These goods were imported by ASP as this was an important commercial relationship and ASP wanted to remove any third party supplier details on the packaging – this was to prevent the Indonesian customer directly purchasing goods from ASP's supplier. The military aircraft goods were never put to use in Australia. 9. Mr Skierka states he first became aware that the importation without a permit, of military goods of Russian origin, was prohibited in May 2017, following the seizure of goods from the company's offices by the Australian Border Force (ABF). He states he was not aware of the change of the law in April 2015 which prohibited the importation of military goods of Russian origin. He expresses remorse for this breach of the law and stress of the proceedings. He states that after becoming aware of the breach, ASP ceased the import and export of Russian goods and ceased trading in components of military aircrafts. He now appreciates that the company, ASP, and his wife and himself, did not possess the required knowledge of Australia's trade laws to import and export military components. 10. Under cross examination Mr Skierka conceded that by delivering the Russian military aircraft parts to ASP's customer (who was not of the Indonesian military or government) neither himself nor ASP knew that the goods had in fact been sent to or received by the Indonesian military. 11. It is noted that under cross examination Mr Skierka agreed that ASP currently had agents in Singapore looking to source contracts/sales for supply of military aircraft parts, but did not yet know if ASP was successful in securing the deals. He noted that there were new tenders now and they were trying to keep things going. He conceded that if a deal was available, they will engage in trade of military aircraft parts, but would do it properly "we came unstuck". 12. Mr Skierka also stated that as Director of ASP he was not aware that ASP was paying "10's of $100,000" to the agent known as Turbo, and conceded this was his mistake. When asked in the period 2015 to 2017 what proportion of ASP's business consisted of trade in Sukhoi parts he stated he had no idea. He added that he did not work in the business full-time, he did his best to comply with the law and his wife did her best and "this is where we end up". 13. Mr Skierka states that the stock seized by ABF, pursuant to the warrant, cost the company US$175,500 to purchase, (and states this is equivalent to a greater amount of Australian dollars). The loss of business, and current investigation/prosecution, has a significant impact on the financial performance of the company. He states in the financial year ending 30 June 2017, ASP made a profit before tax of $748,458 and following the investigation and prosecution, in the financial year ending 30 June 2018, ASP made a loss of $146,180.95. He annexed to his affidavit. ASP company tax returns were annexed for the years ending 2016 and 2017; and financial records for the years ending June 2017. The financial records included the Trading Account, Profit and Loss Statement and Balance Sheet as at June 2017. Additionally an Accountant prepared profit and loss summaries for the period 1 July 2017 – 1 June 2018; and 1 July 2018 – 31 December 2018, as well as the balance sheet as at 30 June 2018 were annexed. 14. Under cross examination Mr Skierka agreed that in 2016 the gross profit of ASP was $2,217,249 (from total income of $4,470,938) and in 2017 it was $1,466,568 (from total income of $3,914,223). From gross profit the expenses were deducted, set out at p63 of his affidavit. After deduction of expenses the profit before income tax in 2016 was $1,236,241, and in 2017 $748,458. 15. He agreed under cross examination that in 2016 the amount of $447,446 was paid to their contact with the Indonesian army, Henry William at Melindo (Turbo), and he agreed with the amount paid stating it was probably paid to that person. 16. Mr Skierka was cross examined about the deduction for rent, noting that the building from which ASP operated was owned by Mr Skierka and Ms Manurung. He responded that the property was owned by the Partnership, and there were other occupants of the building so a fair rent needed to be charged. It was put that rent was paid by ASP in 2017 but not 2016, and he indicated he thought rent was paid both years indicating that might be an error. It was put that therefore the financial records were not accurate and he did not concede that, saying he was just curious. He agreed that both he and Ms Manurung had interests in the company, ASP, and also the Partnership, and also a Trust, and also privately owned items, and agreed that his finances were structured as beneficially as possible, noting "I think that's normal". 17. The annexed documents record, in the Balance Sheet as of June 2018 for ASP, the entry "2017 Loan to Greg and Doris" in the amount of $1,244,207.54. This appears to indicate that the date that the company, ASP, advanced the loan to its Director and Manager, husband and wife Mr Skierka and Ms Manurung, was in 2017. Under cross examination by the Crown it was established that on the financial records before the court the company had accumulated profits and cash reserves, which were then loaned to Mr Skierka in his personal capacity. The loan was used to purchase a residential property for building/investment/renovation purposes, given his occupation as a builder. The property at time of purchase was valued at over $2,000,000. 18. Under cross-examination about financial documents the following was adduced. The balance sheets for ASP showed the company had accumulated profits in 2016 and 2017, and as at June 2017 assets of the company included a loan to him in his personal capacity. He agreed the funds were used to purchase a property (the Federal Parade property), the agreed value of that property as at June 2018 was $2,300,000. He said he believes it has gone down in value, as a builder he wishes to renovate the property, and they rent it out. He says they can't afford to live there. 19. An affidavit by Ms Manurung deposed to the value of stock seized by the Australian Border Force in May 2017 – being a transmitter and heads up display units. She deposes to the company receiving no payment from the customer in respect of the seized units. 20. In relation to her usual business practices, Ms Manurung states at paragraph 30 of her affidavit "once an order was received I would seek to negotiate a purchase price with ASP's supplier. Once this was done I would create and send an ASP purchase order to that supplier setting out the price. The supplier would also issue an invoice for the goods". 21. She states that in relation to the parts for Sukhoi aircrafts, there was only one customer who she understood to be a supplier to the Indonesian air force. She understood that customer, Melindo used a sales agent known as Turbo . 22. She states that with goods imported for supply to the Indonesian air force, it was her standard practice to apply to defence export controls for approval to export the goods - she says the export documentation referred to the end-user for the goods being the Indonesian air force, and states the goods are designed for the Russian aircraft. 23. Ms Manurung states that the goods were shipped to Australia by airfreight, by the airfreight carrier she nominated and was responsible for this cost. "I understand that the airfreight carrier lodged import declarations on my behalf. At no time did the airfreight carrier request information from me for the completion of the import declaration nor at any time did I provide the airfreight carrier with information to complete the import declaration." She states she only became aware that the information was incorrect in mid-2017 after being told by her lawyers. She assumes the information on the import declaration was based on information provided to the airfreight carrier by the supplier of the goods. 24. At paragraph 51 to 57 of her affidavit, Ms Manurung states that prior to seizure of the heads up displays, in May 2017, she did not know that the importation into Australia of military goods of Russian origin required government approval. She now understands this requirement commenced in April 2015. She states the purpose of importing the goods was only to inspect the goods for high-level quality control and to remove any marketing material of the supplier. The goods were never imported to be put to use in Australia. 25. Since becoming aware of the situation, ASP has obtained advice from lawyers specialising in trade compliance: and has ceased trading in parts specifically designed for military aircraft, including Russian military aircraft; and ceased importing goods into Australia. She states her commitment to never again engage in activity that may result in a breach of the law. She expresses sorrow for what has happened. She states she realises she does not have enough knowledge of Australia's import and export laws to be involved in the trade of military aircraft parts. "My breaching of the law happened through ignorance, but I realise that I should not have traded in military goods without obtaining advice as to all of the relevant legal requirements". She states that since the seizure of the transmitter and heads up display units, the business of ASP has been severely damaged. This has resulted from not just the immediate loss of a line of business, but also the seizure of expensive goods which had been paid for by ASP. 26. Under cross examination Ms Manurung confirmed that despite the contents of her affidavit that they had ceased trading in military parts, ASP had put steps in place to continue trading in military parts. She stated her understanding that she can't do Russian parts but she can do military parts. She confirmed a customer has approached her to supply military parts, but she will not import those parts to Australia first, when she supplies her customer who is overseas. She agreed that ASP had appointed agents to help with tenders for supply of parts, for example to the Singapore airforce, but stated they may or may not be successful in obtaining the tender/contract to supply, it could take up to three years, they may win or lose the contract. 27. Ms Manurung was cross-examined as to how she knew that military parts exported to Melindo in Singapore ended up with the Indonesian military. She stated she knew this from documentation when the goods were rejected after delivery which had happened on occasion. She agreed that Melindo tendered for the business and used an agent known as Turbo who was Henry Williams. She explained that Turbo would identify sales opportunities, she would offer a price, for example $3, and Turbo would say – give me a $5 price, she would do so, the item would be delivered at the $5 price but she would have to give Turbo the $2 difference between $3 and $5. 28. It was put that she paid him a lot of money, to him personally, and she agreed, saying "he says I have to contribute". She said it is a different system they have costs in entertaining the airforce – he uses the money to make them happy so they buy from him. 29. In relation to the import documents before the court she agreed they did not reflect the country of origin of the imported item, nor the price of the item, and she noted that the companies had offices in more than one country. She said she did not notice the details on the import notices when she received the goods in Australia, she doesn't look at the label on the box when the item arrives, she just takes out the item and looks at it. She was cross examined about GST requirements based on stated values of goods and indicated that she didn't know the process. She maintained that the person who shipped the goods to Australia completed the details, she did not observe the incorrect details, and therefore did not comment to the person/organisation sending her the goods that the details were incorrect. 30. She was questioned as to whether she observed the Russian manufacturing documents delivered with the goods and maintained that they are usually not sent with the item itself. Her attention was drawn to the incoming batch reports which she completed, with her name and a tick next to "manufacturing certificate" indicating the manufacturing details were received and she agreed that if she checked it, then it was there. 31. In relation to the incorrect details on the import documents (origin and value of goods) she conceded the details were incorrect but she said didn't observe this. She was referred to invoices in respect of the goods, it was put these were "a snapshot of the import declaration" and she was asked whether she thought it important that the goods were correctly declared. She responded that she did not think that, she just ships it to the customer. It was put that the invoices seek re-imbursement of GST and she said "they just send me an invoice". 32. She was cross examined about her completion of details on the FedX forms at the time of export. One example stated the country of origin as the US (relating to the third, fifth, sixth and eight goods the subject of the current charges). She agreed she completed the details of the country of manufacture as "US" when sending the goods to Singapore. She stated that this was because she bought it from the United States and added "I don't know where it comes from". 33. She clearly stated to the court that she accepted the Statement of Agreed Facts tendered on sentence, adhered to her pleas of guilty and to being sentenced on the basis of the Agreed Facts. 34. Ms Manurung testifies as to her personal financial position. She states that as at 1 March 2019 she estimates that, together with her husband, their personal assets are valued at approximately $27,500. This is comprised of approximately $4500 cash held in bank accounts and $23,000 in vehicles and household assets. She annexes bank account statements showing a balance as at 1 March 2019. 35. She states that herself and her husband are beneficiaries of the Skierka Family Trust and the trust receives income from the business of ASP. She annexes the financial reports for the year ended 30 June 2017 from the Trust. She states in the year ending 30 June 2017 she received distributions from the Partnership and the Trust, which are included in her assessable income for the year ended 30 June 2017. She states that neither the Trust nor the Partnership were profitable in the year ended 30 June 2018 and she did not receive a distribution from either. 36. Ms Manurung also annexes her most recent completed tax return to the affidavit, for the year ended 30 June 2017. She notes that, in the return her assessable income for that financial year was $150,946. There was no return available for the 2018 financial year. 37. The financial documentation attached to Ms Manurung's affidavit indicated the following. That together with her husband their personal assets are valued at $27,500 consisting of motor vehicles and household assets valued at $23,000 and cash in bank accounts of approximately $4500. She annexes a bank account statement dated March 2019 showing a balance of $4515.13. For the Partnership she attaches accountant prepared balance sheet for 30 June 2018; a profit and loss statement for the partnership for the year ending 30 June 2018 and an additional statement for the period June to December 2018. The total assets are $3,083,749.37 (based on the value of the fixed assets being substantially the properties held). The properties held by the Partnership include the Federal Road property purchased with a loan from ASP in 2017. The liabilities are stated to be $3,145,584.23 which includes the amount of $1,244,220.19 being the loan from ASP to purchase the property. There is also a loan by the Partnership on the same property - the Federal Parade Loan Account in the amount of $1,642,292.67. The loan on the Mitchell Rd property (the building where ASP is located) is $260,568.19. There are also bank assets of $28,188.19. 38. The profit and loss sheet for the period July 2017 to June 2018 showed total income for the Partnership of $145,946 (a large part of which was rent ) and expenses were deducted in the amount of $213,364, which included renovation of Mitchell Rd property, leaving income after expenses at a loss of $67,419. The profit and loss sheet for July to December 2018 showed income of $76,466 and expenses of $107,875 which included renovation expenses for the Mitchell Rd property and personal expenses of the partners. She states the balance sheet indicates that the Partnership's liabilities exceed its assets by $67,418.71 as at 30 June 2018 and it made a loss of $67,419 in the year ending 30 June 2018. 39. The documents relating to the Skierka Family Trust indicated in 2017 a distribution to each of the beneficiaries (Mr Skierka and Ms Manurung) of $39,000. The assets included receivables in the amount of $78,000 from ASP. 40. In her affidavit Ms Manurung states that neither the Trust nor the Partnership were profitable in the year ending 2018 and she did not receive dividends that year. 41. Under cross-examination about those documents the following evidence was adduced. Ms Manurung agreed that the equity the Partnership possessed in the Mitchell Rd property, according to the balance sheet (Value minus loan) was $491,990. She agreed in relation to the Federal Parade property that rent was earned from the property, and that they purchased it with a bank loan and a loan from the business, ASP. It was put to her that money from the business came over to help buy the property and she agreed. She also agreed that they owned the Mitchell Rd property where ASP operated from. Findings of fact on evidence 1. The Crown must establish facts on sentence beyond a reasonable doubt. The Statement of Agreed Facts are accepted by both defendants and are accordingly the established facts before the court. The defendants may rely on evidence which is established on the balance of probabilities. The defendants presented considerable evidence, as detailed above, relevant to sentence (in an assessment of the s16A matters). In particular the defendants rely on evidence as to their financial circumstances. In relation to the defendants' evidence as to financial circumstances, I have considered relevant authorities and the evidence, and made findings as detailed below (refer "Financial Circumstances of each Defendant" below). 2. Ms Manurung, and Mr Skierka as director for ASP, present in their evidence that they were trying to comply with the law, they made mistakes due to lack of knowledge, and concede that they did not at the time of the offences possess sufficient knowledge to trade in import and export of military goods. 3. Ms Manurung was responsible for the day to day operations and her husband as Director of ASP had knowledge of the type of business undertaken, and also had obligations and responsibilities as Director. Ms Manurung completed substantial documentation relating to the offences which was before the court. Under cross examination she sought to maintain her lack of complete awareness of the origin of the goods, while maintaining her agreement with the Statement of Agreed Facts. This is relevant to an assessment of the degree of moral culpability and I am required, in order to assess the s16A factors on sentence, and in particular the nature and circumstances of the offence, to make findings about this issue. 4. ASP and Ms Manurung presented themselves as mistaken and having insufficient knowledge – whilst this may be in part be true in relation to a lack of awareness of the sanctions regime, I also find on the evidence that there was a lack of concern for the accuracy of documentation, and also for the accuracy of representations on the documentation used by ASP in the import and export of the items. This indicates a lack of sufficient concern to comply with legal and regulatory requirements, rather than simple lack of awareness of legal requirements. I make this finding because of all the references on the various documentation discussed above, indicating the Russian origin of the goods – for example, the Russian script on the serial numbers and the Russian manufacturing documentation included with some of the exports. Yet Ms Manurung and ASP did not declare the Russian origin of the goods on some of the export documentation, or in any of the import documentation. 5. Whilst Manurung and ASP rely on the reference, on some of the Export Permits, to Sukoi aircraft, on a number of the other export permit documentation there is no reference to the part being for a Sukhoi aircraft nor are serial numbers, which were available to ASP, supplied. The evidence of Manurung that she did not notice the incorrect details on the import declarations is implausible, given the volume of such documentation and the fact that she had requested the items from her supplier, and had negotiated the applicable prices with both the supplier and the purchaser, for specific items. I am not satisfied on the balance of probabilities, on the evidence, that Manurung and ASP were simply mistaken about legal requirements. Rather the evidence indicates a lack of concern for making correct representations and providing correct information on import and export documentation. 6. It is the case that the way the documentation was completed resulted in the country of origin, and nature of the goods, not being able to be discerned from the importation documentation. The result is that the import documentation obscured the fact that military items of Russian origin were being imported by ASP in breach of the law. In this context the lack of concern and almost cavalier attitude to legal requirements displayed by Manurung and Skierka is directly connected to the offending behaviour and forms part of the nature and circumstances of the offence. 7. This is relevant to the circumstances of the offending behaviour in an assessment on sentence pursuant to s16A(1) and s16A(2)(a) of the Crimes Act 1914 (Cth). MAXIMUM PENALTIES 1. The Crown set out in the Statement of Agreed Facts the maximum penalty for each of the offences, with which the defence agreed, as follows: ASP - 7 counts of Import prohibited import - s 233(1)(b) 1. The maximum penalty for an offence under s 233(1)(b) of the Act, as provided for in s 233AB(2), is 1,000 penalty units (where the Court cannot determine the value of the goods), or three times the value of the goods, whichever is greater. 2. In accordance with s 236 of the Act the penalty for aiding and abetting the commission of an offence, or being directly or indirectly concerned in the commission of any offence against the Act is the same penalty as is applicable to the principal offence. 3. In accordance with s 4B(3) of the Crimes Act 1914 (Cth) a court can, if it thinks fit, impose a pecuniary penalty on a body corporate an amount not exceeding 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence. 4. That said, as the prosecution against the defendants has been commenced in the Local Court of New South Wales, any penalty exceeding 200 penalty units is abandoned (s. 245(4)). 5. When the offences the subject of sequence 1 were committed a penalty unit was equal to $170. When sequences 2 to 7 and the false statement charge against ASP were committed a penalty unit was equal to $180. 6. The Crown provided a table, as to value of the various goods, in the statement of Agreed Facts, for the purpose of assessment of penalty. The table is available on the court file. In summary the Crown sets out the exchange rate on the relevant date ($US to $AUS), the total value of the goods for each sequence, and then sets out the applicable penalties for Ms Manurung and ASP based on the value of the goods. 7. The table sets out the maximum penalty of 3 times the value of the goods for Manurung, or 1000 penalty units being * Sequence 1 - $502,983 (jurisdictional limit $34,000) * Sequence 2 - $180,000 (jurisdictional limit $36,000) * Sequence 3 - $180,000 (jurisdictional limit $36,000) * Sequence 4 - $462,606 (jurisdictional limit $36,000) * Sequence 5 - $180,000 [$134.064] (jurisdictional limit $36,000) * Sequence 6 - $190,080(jurisdictional limit $36,000) * Sequence 7 - $695,700(jurisdictional limit $36,000) 1. For ASP, the maximum penalties based on the value of the goods are: * Sequence 1 - $2,514,915 (jurisdictional limit $34,000) * Sequence 2 - $900,000 (jurisdictional limit $36,000) * Sequence 3 - $900,000 (jurisdictional limit $36,000) * Sequence 4 - $462,606 (jurisdictional limit $36,000) * Sequence 5 - $900,000 (jurisdictional limit $36,000) * Sequence 6 - $950,400 (jurisdictional limit $36,000) * Sequence 7 - $3,478,500 (jurisdictional limit $36,000) ASP - Making or causing a statement to be made to an officer of Customs that is false or misleading in a material particular - s 243U(1) 1. The Crown set out in submissions that the maximum penalty for an offence under s. 243U(1) of the Act, as provided for in s 243U(3), is 60 penalty units. As such, the maximum penalty for this offence as against an individual is $10,800. Applying s 4B(3) of the Crimes Act, the maximum penalty as against ASP (a body corporate), is $54,000. Applying s 245(4) of the Act any penalty exceeding 200 penalty units is abandoned. As such, the maximum penalty as against ASP which the Local Court can impose is $36,000. Relevance of maximum penalty 1. It was submitted by the Crown and conceded by the defence that whilst there is a jurisdictional limit on the penalty that can be imposed by the Local Court, in assessing the objective seriousness of the offending behaviour regard is to be had to the maximum penalty for the particular offence and not the jurisdictional limit of the Local Court. Of course this is well understood to be the position as set out in Doans Case: R v Doan (2000) 50 NSWLR 115 (refer Grove J at [35]). Legislative considerations on sentence 1. The Court is to have regard to the matters set out in s16A of the Crimes Act 1914 (Cth) when passing sentence, and is also to have regard to s16AC as any co-operation by the defendants with law enforcement authorities, and also to observe s16C as to the financial circumstances of the defendant. 16A Matters to which court to have regard when passing sentence etc.—federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence—that fact; (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. 16AC Reduction for cooperation with law enforcement agencies (1) This section applies if a court imposing a sentence, or making an order, for a federal offence: (a) reduces the severity of the sentence or order; or (b) reduces the non-parole period in relation to the sentence (if applicable); because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence. (2) The court must: (a) state that the sentence, order or non-parole period is being reduced for that reason; and (b) specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction. Example: The court imposes a fine of $1,000 and specifies that, but for the offender undertaking to cooperate with law enforcement agencies, the court would have imposed a fine of $10,000. 16C Fines (1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account. (2) Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court. 1. As was noted by the Court of Criminal Appeal in the joint judgement of the five member bench in Xiao v R [2018] NSWCCA 4 at [94]: It is well established that, except to the extent stated in s 16A and 16B of the Crimes Act (and elsewhere in Pt 1B), general common law principles, and not peculiarly local or State statutory principles of sentence, are applicable. The common law principles give content to the statutory expression in s 16A(1) "of a severity appropriate in all the circumstances of the offence" and some of the expressions used in s 16A(2): Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [15] ("Johnson"); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25] ("Hili v The Queen"). 1. In considering "the nature and circumstances of the offence" in the context of the requirements of s16A the Court also observed, at [133] – [135]: What the sentencing judge said aggravated the offences, was the deliberate concealment by the applicant of his involvement in the trading. That fact goes beyond simply procuring the trades by a third party and was a matter the sentencing judge was entitled to take into account in evaluating the seriousness of the offence. He was entitled, if not bound, to take such matters into account in considering the nature and circumstances of the offence for the purpose of s 16A(2)(a) of the Crimes Act. In considering what were described by the sentencing judge as aggravating features, it is important to bear in mind that unlike, for example, s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 16A of the Crimes Act does not specify a series of aggravating and mitigating factors. Rather, it prescribes a number of matters required to be taken into account in imposing a sentencing that is appropriate in all the circumstances of the case. Those factors, as was pointed out in Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [71] ("Wong v R"), are very diverse, without any guidance given as to how they are to be accommodated. Ultimately the task for a sentencing court is to frame a sentence taking all those factors into account, to the extent they are relevant and known to the court: Wong v R at [71]-[75]. In these circumstances, whilst it may be appropriate to speak of a particular aspect of the offence as aggravating it, in the sense of making it more serious, it is important to bear in mind there is no specific provision in the Act to treat certain matters as aggravating and others as mitigating. As noted by the plurality in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22], it is "to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating". In any event, as we have indicated, it does not seem to us that the sentencing judge treated the offence as more serious merely because of the procurement of the trades. 1. This makes clear that s16A does not proscribe aggravating and mitigating factors, but prescribes a number of matters required to be taken into account in imposing a sentence that is appropriate in all the circumstances of the case. An assessment of the nature and circumstances of the offence (s16A(2)(a)) will require the court to consider the objective seriousness of the offending behaviour. A sentencing court is to frame a sentence taking all those factors [in s16A(2)] into account, to the extent they are relevant and known to the court: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [71]-[75]. As required by s16A(1) the sentence is to be of a severity appropriate in all the circumstances of the offence, having regard to the matters in s16A(2). Assessment of the s16A matters 1. There is a requirement to consider the nature and circumstances of the offence in sentencing. The offences involved the importation of prohibited imports. Those circumstances included that the importation undermined the sanctions regime which had been implemented by the Australian Government. There is harm to the community when the Australian government imposed sanctions are subverted, and there is a need for all in the Australian community to respect the international policy aims and sanctions imposed by the Australian Government. 2. The nature and circumstances of the offences included inaccurate import documentation which arguably made detection of the importation of the prohibited imports more difficult, as the origin of the goods and nature of the goods was not apparent from the documentation. In relation to importation of prohibited items, there is a need for all in the community to conform with import requirements, and candour as well as the exercise of care in making required declarations on import documentation is important, as is a commitment by all in the community to ensure that no prohibited items are imported to Australia. In assessing the nature and circumstances of the offences it is noted that the prohibited imports were military arms parts. The community would legitimately expect that those engaging in trade in military arms equipment would be rigorous in ensuring compliance with all relevant laws. 3. I note that there are a number of similar offences before the court, occurring over the course of time, and as such the offences constitute a course of conduct. 4. There is a significant need for general deterrence, others in the community need to be deterred from importation of prohibited imports, to ensure that items which are prohibited are not imported and made available in Australia as many such items are considered harmful (such as prohibited drugs) and others are considered in need of specific Government oversight so as to avoid community harm or to ensure Australia's international obligations or international relations are maintained. 5. There is a significant need for specific deterrence. The approach of Manurung and ASP to legal requirements appeared lax and unconcerned on the evidence before the court. Despite numerous documents which should have alerted ASP and Manurung to the nature of the goods being imported, and to the erroneous statements on the import documentation including as to the origin of the goods, Manurung maintained that she had not observed the details on the documentation. On the evidence before the court, the import documentation obscured the Russian origin of the goods. 6. I find it implausible that Manurung and ASP would not have been aware that they were importing goods of Russian origin given the evidence as to the business model given by Manurung that "once an order was received I would seek to negotiate a purchase price with ASP's supplier. Once this was done I would create and send an ASP purchase order to that supplier setting out the price. The supplier would also issue an invoice for the goods". It is improbable on this evidence of the business model that she would not know the origin of the goods. I am not satisfied on the balance of probabilities that Manurung did not know the goods were of Russian origin and I note by her pleas of guilty she accepts such knowledge. I do not find it established on the balance of probabilities that the knowledge was akin to recklessness as to the facts, rather than actual knowledge, or was based on naivete, for the reasons previously given. In this context I also note her concession under cross examination that when she signed documentation referring to Russian manufacturing documentation as part of the export, that she was aware of that documentation. There is no available inference arising from her knowledge of the Russian manufacturing documentation which had been received with the imported goods, other than an inference as to her also possessing knowledge of the Russian origin of the items. 7. In relation to the need for specific deterrence I note the lax approach to accurate declaration on documentation and the failure to ensure compliance with the law relating to prohibited imports – the apparent disregard, evidenced in the facts before the court, indicates the need for specific deterrence. In the context of the evidence at the sentencing hearing that ASP was pursuing further trade opportunities in supply of military equipment, there is also a significant need for specific deterrence to be achieved in sentencing to prevent further offending in the future. 8. I find on the evidence that the offences were committed for financial gain. The evidence before the court indicates the substantial profits earned by ASP on the importation and sale of Russian arms material. That Ms Manurung also directly benefits from the profits is seen from the transfers of income by ASP to the Partnership of which she is a beneficiary. 9. I acknowledge the personal circumstances of Ms Manurung that she is an employee of ASP and has care of two children, and is a person with no prior criminal record. I acknowledge that ASP also has no record of previous offending. 10. I take into account the pleas of guilty in respect of each defendant and also note the contrition expressed in the affidavit of the director of ASP, Mr Skierka, and that of Ms Manurung. I observe that expressed in the affidavits, are efforts at rehabilitation consistent with remorse, being the engagement of lawyers to advise as to compliance with legal requirements. As such I accept that there is evidence of remorse and rehabilitation. 11. It is submitted that there was assistance to the Crown in terms of settlement of Agreed Facts on sentence. The Crown did not accept the basis for that submission by defence Counsel. The court indicated that during the adjournment period, before decision on sentence, the defence could make further representation to the Crown on the issue, and provide further material. It is noted that on 4 June 2019 the parties forwarded an Additional Statement of Agreed Facts regarding assistance to authorities, this will be further discussed below. The Additional Statement of Agreed Facts indicates some co-operation with the authorities after the defendants were charged. 12. In accordance with s16C I have also considered the financial circumstances of ASP and Ms Manurung, the findings and relevance of the findings are set out below. 13. As well as taking into account the plea of guilty in accordance with s16A(2)(g) of the Act, I am required to indicate the discount on penalty for the utilitarian value of the plea – the authorities as to this requirement in sentencing for Commonwealth offences are set out below. 14. In accordance with s16A(1) I am required to impose a penalty that is of a severity appropriate in all the circumstances of the offence. Financial circumstances of each defendant 1. Given the considerable evidence presented by both defendants as to financial circumstances it is relevant to set out the authorities in relation to taking into account financial circumstances of defendants as part of the sentencing exercise. 2. Mahdi Jahandideh v R [2014] NSWCCA 178: per Rothman J with who Hoeben CJ agreed, and with whom Beech Jones J also agreed with additional comments – it was held: [14] The ground of appeal agitated on behalf of the applicant relates, given the immediately proceeding paragraph, to an error in the process said to have been undertaken by the sentencing judge. Not only did the applicant, in the course of submissions on appeal, not rely on any denial of procedural fairness and any argument relating to manifest excess or a sentence that is more severe than is appropriate, but counsel for the applicant, quite properly, concedes that the fine has, in all likelihood, no practical impact upon the applicant. [15] There are a number of matters that require comment. First, s 16C(1) of the Commonwealth Crimes Act requires a sentencing judge to take financial circumstances into account. It does not dictate that the financial circumstances will determine the fine that is to be imposed. [16] The financial circumstances of the offender is a mandatory consideration, but, expressly, there are other considerations.[my italics] In Darter v Diden [2006] SASC 152; (2006) 94 SASR 505, Doyle CJ said: "[29] I consider that a substantial fine was called for, even after making allowance for the loss of the vessel and the period of detention. A substantial fine was called for because, in particular, of the seriousness of the offence and its prevalence. Deterrence remains a factor, even if it is attenuated by the unlikelihood of recovery of the fine in future like cases. [30] Treating the offender's capacity to pay as relevant, but not decisive, is consistent with the approach at common law. In Flego v Lanham (1983) 32 SASR 361 at 365-367 Wells J considered this issue. He said at 366: But the offender's capacity to pay should always be kept in mind as a factor worthy of consideration; it cannot be decisive (see generally Reid v Liersch unreported, Walters J, 23 September 1970), but it is likely to be of some moment.[my italics] Legoe J came to a similar conclusion in Winkler v Cameron (1981) 33 ALR 663. This approach is consistent with the view of Finlay J in Rahme (1989) 43 A Crim R 81 at 86-88, although that case was complicated by the fact that the sentencing Judge had been urged to impose a substantial fine rather than a sentence of imprisonment. In Smith v R (1991) 25 NSWLR 1 Kirby P (at 21) expressed opposition to the imposition of a fine which was beyond the means of the person fined. That case also was complicated by its particular circumstances. It was a case involving contempt of court by a prisoner serving life imprisonment, the response of the Judge having been to impose a very substantial fine. The matter was complicated by the life sentence being served, which rendered other forms of punishment impractical, but likewise made the prospect of payment of the fine illusory. Nevertheless, Mahoney JA (at 23-24) and Meagher JA (at 24) both upheld the fine, recognising that it was unlikely ever to be collected. [31] I have considered these cases and remain of the view that the defendants' capacity to pay was a relevant consideration, but not decisive. There is nothing in the Crimes Act to suggest that it is a decisive factor. Nor, in my opinion, does ordinary sentencing principle require that it be so treated.[my italics] [32] The impact of s 16C of the Crimes Act was considered by Mullighan J in Chief Executive Officer of Customs v Rota Tech Pty Ltd & Ors [1999] SASC 64; (1999) 201 LSJS 390. He considered a number of the reported cases and (at 397) said: It follows that the capacity of the offender to pay cannot be the dominant factor when fixing the fine to be imposed. It is an important factor along with the other matters which the Court must take into account pursuant to s 16A. Where the offence involves large scale drug importation for the illicit drug trade in this country, the financial circumstances of the offender, whilst relevant, should not assume prominence in the exercise of the sentencing discretion. I agree with his approach." [my italics] [17] I also agree with the foregoing approach and add only that consideration of the financial circumstances may increase, rather than decrease, a fine in order for it to be a deterrent for the offender. [my italics] [18] Secondly, the terms of s 16C(2) of the Commonwealth Crimes Act seek to make clear that the court is still capable of imposing a financial penalty in circumstances where the financial circumstances of the offender cannot be ascertained by the court. [19] A sentencing court is not in a position to investigate financial circumstances or to call evidence. The sentencing judge relies upon the material that is put before the Court during the course of sentencing proceedings….. …..[31]The sentencing judge, in determining to impose a fine, expressly refers to the need for general deterrence and the appropriateness of a financial penalty in circumstances where a crime is committed for financial gain. 1. The evidence (refer detail set out above) establishes that both Ms Manurung and Mr Skierka benefit from the income of ASP and have control of that income. Mr Skierka also has responsibilities as director. Ms Manurung runs the day to day business of ASP and therefore has knowledge of its day to day affairs. Mr Skierka and Ms Manurung also are beneficiaries of a Trust, and they are members of a Partnership, both the Trust and the Partnership hold assets and at times make distributions to the partners and/or Trust beneficiaries. The documentation indicates that ASP makes payments at times to the Partnership and the Trust ($78,000 from ASP to the Trust in 2017; and the Partnership received rental income for the Mitchell Rd property, held by the Partnership, from ASP). Ms Manurung in her affidavit refers to distributions to her made by both the Trust and Partnership in 2017. 2. ASP in 2017 provided a substantial loan - to its director and employee, being Mr Skierka and Ms Manurung - for the purchase of a residential property as set out above. 3. In 2016, on the available records, ASP made significant profits which were available to finance the loan provided in 2017 to Mr Skierka and Ms Manurung. ASP has been trading in Russian aircraft parts since 2015, and has substantially profited from the trade. 4. ASP has earned considerable profit from its trade in military aircraft parts and on the evidence before the court is likely to do so again in the future – ASP has agents placed overseas seeking further contracts/tenders to supply such goods. I am not satisfied that ASP's circumstances are such that to impose a fine would impose substantial financial hardship on the company or that it would not be in position to pay a fine, given the considerable profits made in 2016 and 2017. In so finding I have taken into account the recent loss of profits because of ceasing trade in the Russian parts, however I note the active attempts currently to obtain tenders/contracts overseas, which may lead to further trades. In making the finding that it is not established on the balance of probabilities that ASP's financial circumstances would mean there would be substantial difficulty in paying a fine, I also observe that the assets of ASP include a loan to Ms Manurung and Mr Skierka of over $1,000,000 which is an asset held by ASP. ASP has assets on which it can draw, and also on the evidence ASP has ongoing earning capacity into the future. However, as noted below, even if I am wrong in my conclusion that ASP has capacity to pay fines, I am also of the view that the financial circumstances of ASP are not the determinative factor on sentencing in this matter. 5. Ms Manurung in previous years has earned a relatively good income, and has also received disbursements/dividends from the Partnership and Trust. On the evidence I accept that there was some disruption to this in 2017, the year of the search warrants and charges, however having regard to profits earned in previous years and the current pursuit by ASP of new business, I am not satisfied on the evidence before the court that this will necessarily continue. As an employee she will continue to be paid a salary, even if the flow of income from the Trust and the Partnership is reduced. I note that the Partnership is in receipt of ongoing rental income from the Mitchell Rd property, and equity is held in that property. The Partnership and Trust are also financial interests of Ms Manurung as she is a beneficiary, and the only other beneficiary is Mr Skierka the Director of ASP. 6. The financial circumstances of the defendants must be considered, as required by s16C, however those circumstances are not determinative of the penalty, refer discussion of Mahdi Jahandideh v R [2014] NSWCCA 178 above. All matters in s16A(2) must be considered, as must the requirement for the imposition of a penalty of appropriate severity, as set out in s16A(1). 7. As indicated, I am not satisfied on the evidence, on the balance of probabilities, that ASP and Ms Manurung do not have assets from which a financial penalty could be paid, nor am I satisfied on the evidence that there is a lack of income earning potential going forward, so that a financial penalty cannot be met. I do however accept that it has been established on the evidence, that currently there has been a reduction in income earned due to the impact of this prosecution and ceasing trade in Russian aircraft parts. However given current efforts of ASP to obtain new trades, including in military aircrafts, and given past high levels of income earned, it is by no means clear how long the period of reduced income will persist. 8. I also note that a consideration of the s16A factors and the requirement of s16A(1) to impose a penalty of a severity appropriate in all the circumstances, would direct that substantial penalties be imposed on the offences before the court, for reasons set out above. I also find that the authorities indicate that whilst financial circumstances must be considered they are not determinative of the penalty. The other considerations which must also be reflected in sentencing in the case are set out above in detail (refer 'Assessment of s16A matters') and, in particular include the need for specific and general deterrence, the nature and circumstances of the offences, the fact that the offences were committed for financial gain and were part of a course of conduct over a period of time. 9. I also note that the defendants on the evidence before the court were trading in Russian military aircraft parts for a considerable period (from 2015) in breach of sanctions, and earned considerable profit from those activities. It is significant in sentencing that the offences were committed for financial gain. Assistance to authorities, s16AC considerations STATEMENT OF AGREED ADDITIONAL FACTS Assistance Provided by the Accused The Defendants (Aviation Spare Parts Pty Ltd (ASP) and Ms Manurung), provided an unsolicited written submission to the Australian Border Force (ABF) dated 14 July 2017 which was directed to providing information with respect to ASP's importing and exporting activities, as well as submissions as to the appropriate response of the ABF to those activities. Part of the content of the written submission dated 14 July 2017 provided the foundation for paragraphs 5 to 8 and the first two sentences of paragraph 9 of the Statement of Agreed Facts (Exhibit 1). As stated at paragraph 28 of the Statement of Agreed Facts, Mr Skierka, the director of ASP, participated in a voluntary recorded interview with the ABF on 10 July 2017 (the parties note that the reference to '10 June 2017' in paragraph 28 of the Statement of Agreed Facts should in fact be 10 July 2017). Ms Manurung was requested to participate in a recorded interview with the ABF but declined to do so. In a letter from her solicitors dated 29 June 2017 Ms Manurung declined to participate in the recorded interview but offered to answer any questions put to her in writing or provide any document. The ABF did not request any documents or ask any questions of ASP or Ms Manurung. 1. The Additional Statement of Agreed facts is the evidence in relation to assistance to authorities. I observe that all assistance post dates the execution of the search warrants. The information provided by the defendant Manurung and included in paragraphs 5 - 8 of the Statement of Agreed Facts (exhibit 1) is set out in paragraphs 5 – 8 of this judgement. That information went to Manurung's personal situation, and employment history, and general information about ASP's business model. It does not appear to have been assistance which progressed the investigation nor prosecution of this matter or any other offences. Paragraph 9 of the Statement of Agreed Facts is set out at paragraph 9 above, and is an admission relevant to the proceedings in that it sets out that since 2015 ASP had conducted business including importation and export of parts for military aircraft, including the Sukoi SU-27. However it is noted that the prosecution is for offences which include dates of importation in 2015, and documentary material in relation to the offences was obtained during execution of search warrants, which predates the concession in paragraph 9 of the Statement of Agreed Facts. 2. Case law has recognised the importance of applying a discount on sentence for assistance to the authorities. In the case of Wu v R [2016] NSWCCA 96 the assistance included assisting in the investigation of another alleged offender, and the offer to testify against the other offender, and also assistance to liquidators by answering questions about the affairs of the company. His assistance in relation to the investigation and prosecution of the other offender was considered substantial. A combined discount of 35 percent had been allowed upon sentencing, and 10 percent was for the past and future assistance. At [55] and [56] the Court stated: In relation to the sentencing for a federal offence, although a guilty plea must specifically be taken into account (pursuant to s 16A(2)(g) of the Crimes Act), there is no requirement for a discrete identifiable percentage discount to be nominated for the reduction of a sentence on account of an offender's guilty plea; nor is there a requirement to identify the level of discount for assistance by a discrete percentage (apart from the need to comply with the statutory requirement within s 16AC(2) of the Crimes Act). In Ma v R [2010] NSWCCA 320, for example, where there was a combined discount at first instance of 35% for the plea and for assistance, of which 6% was for future assistance, Schmidt J observed that the percentage discount for the guilty plea could not be assumed to be 25%. In the present case, however, as an arithmetical exercise it can be inferred that the combined discount for past and future assistance must have been in the order of 10%. Reasonable minds may differ as to the amount to be applied for the level of assistance Mr Wu rendered in the past to the authorities (and will render in the future). 1. I note in the case of Wu v R [2016] NSWCCA 96 the assistance was noted to be considerable and significant, and included providing information and agreeing to give evidence against another offender – this active assistance attracted a discount of 5 percent for past assistance and 5 percent for future assistance. In the present matter we have evidence of no significant assistance, unlike the situation in Wu v R [2016] NSWCCA 96. 2. Whilst Mr Skierka participated in a record of interview and thereby co-operated with authorities, limited information was provided as set out above, and a lack of knowledge of offending behaviour was professed in the record of interview. 3. Ms Manurung is said to have made an offer to answer any questions put to her in writing but to have declined to participate in a record of interview. It must be accepted that an offer to provide answers to questions is a form of co-operation with authorities. However no information was provided by Manurung which progressed the investigation or prosecution of an offence. 4. The level of cooperation is not at the level of assisting in the investigation of the crimes, or in the investigation and prosecution of the crimes of others, as was the case in Wu v R [2016] NSWCCA 96. 5. The assistance to authorities documented must be considered to be limited and minimal. It was offered after investigation and seizure of evidence by search warrant. The Statement of Agreed Facts on Sentence is based primarily on the material seized by search warrant and very little of significant value to the investigation or prosecution was added by way of assistance from the defendants. 6. The limited co-operation is at its highest consistent with recognition/admission of guilt. Given the substantial discount which I will apply for the utilitarian value of the plea, it is my view, given the limited nature and character of the co-operation, that to provide a further discount for assistance in those circumstances, would be similar to double counting. Given the limited nature of the assistance/co-operation in this case, and given that it provided no significant assistance to the prosecution and or investigation of offences, it is not appropriate to discount the sentence further on the basis of assistance or co-operation. 7. On 6 June 2019 the Additional Statement of Agreed Facts was discussed with the legal representatives for the parties. The view set out in these Reasons was put to the parties who did not seek to put a contrary view. Discount for utilitarian value of plea of guilty: 1. In addition to recognition of the plea of guilty as a matter to be considered upon sentence pursuant to s16A(2)(g), there is a requirement to assess the discount to be applied for the utilitarian value of the plea. In Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, the issue of the discount for the utilitarian value of the plea was considered: per Bathurst CJ at [1];Beazley P at [10] ;Hoeben CJ at CL at [23];McCallum J at [26]; Bellew J at [27]. All Justices substantially agreed with the reasoning of Bellew J as to the importance of emphasising in sentence, the discount for the utilitarian value of the plea. It was stated, per Bathurst CJ: 3. …. it is important to emphasise that a discount for the utilitarian value of a guilty plea can and should be given in appropriate cases, even where there is no subjective willingness to facilitate the course of justice. In the present case, as Bellew J points out, the sentencing judge did not take into account the utilitarian value of the guilty plea. The failure to do so meant that he was in error irrespective of whether this Court ultimately came to the view that the discount given adequately reflected both the applicant's willingness to facilitate the course of justice and the utilitarian value of his guilty plea. 4.In these circumstances, it is not necessary to determine whether ground 2 has been made out. In Xiao v R [2018] NSWCCA 4 (Xiao v R), this Court pointed out at [280] that it was desirable, in the interests of transparency, to disclose the actual percentage discount given, although failure to do so would not of itself amount to an error. 5.Similar considerations suggest that it is desirable to specify the precise discount given, rather than specify a range as the sentencing judge did in the present case. Further, as pointed out by Howie J in R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38], failure to specify the exact discount can mean that neither the offender nor the Court of Criminal Appeal can have confidence that it was applied to result in an appropriate discount to the sentence. 6.Although, as presently advised, I am of the same view as Beazley P and Bellew J that it is erroneous to specify a range of discounts (R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38]; R v Burton [2008] NSWCCA 128 at [121]; cf Ayache v The Queen [2013] NSWCCA 41 at [13]-[15]; JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [61]), it is unnecessary to finally determine whether, in the context of sentencing for a Commonwealth offence, specifying a range of discounts is erroneous. And at [9]: 9.Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case: (1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error. (2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error. (3) It is an error to specify a range of percentage discounts as distinct from a specific percentage. Per Beazley P: 12.As Bellew J explains, this Court, in Xiao v R [2018] NSWCCA 4, determined that when sentencing for a Commonwealth offence pursuant to the Crimes Act 1914 (Cth), s 16A, a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. In the present case, the sentencing judge allowed a discount in respect of the applicant's pleas of guilty for both offences. In determining the extent of the discount that was appropriate, his Honour had regard to the time at which the plea was entered in respect of each offence and the fact that the applicant's decision to plead guilty was in the face of a strong Crown case. In this respect, the applicant's decision to plead guilty to the offences was to be seen as a recognition of the inevitable. There was no error in his Honour taking those factors into account. 13.Nor was there any error in his Honour determining that, as the pleas were taken to be a recognition by the applicant of the strong Crown case, the discount for the pleas should be modest. That finding was an evaluative judgment of his Honour based on the evidence. For any challenge to that evaluation to be successful, the applicant had to demonstrate error on the bases that apply in respect of a discretionary decision, as stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505: see Yuksel v R [2010] NSWCCA 65; Ghobrial v R [2012] NSWCCA 221. No such error has been demonstrated. For that reason, I would reject ground 1(b). 14.There is a separate question as to whether the sentencing judge took into account the utilitarian value of the pleas. His Honour, at ROS 2, stated that the pleas of guilty had "to an extent facilitate[d] the course of justice". Given the challenge raised by ground 1(a), it is salient to refer to the conceptual difference between facilitating the course of justice and the utilitarian value of a plea and the extent to which both considerations are required to be reflected in the sentence imposed or, to put it another way, in the discount allowed for the plea. ….And at [16]: 16.In the case before the Court, I agree with Bellew J that as the sentencing judge made no reference to the utilitarian value of the plea, it is likely that his Honour did not take it into account and thereby erred. Having said that, the question is whether that omission had any impact on the appropriate discount for the pleas. That is the subject of the applicant's challenge in ground 1(c). However, it is not necessary to dwell on that question, as I agree with Bellew J that ground 2 of the appeal should be allowed. In that ground, the applicant contended that the sentencing judge erred in specifying a range between which the discount for the plea fell. As I consider ground 1(a) and ground 2 should be allowed, the applicant falls to be resentenced by this Court. Per Bellew J (with whom the other justices substantially agreed on this point): 44.The present application for leave to appeal was heard at the same time as Xiao v R [2018] NSWCCA 4 ("Xiao"), in which this Court considered whether, in sentencing a federal offender, it is relevant for a sentencing judge to take into account the utilitarian benefit of a plea of guilty. The Court concluded (at [278]) that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) ("the Act"), a sentencing judge is entitled to take such utilitarian benefit into account. The Court concluded (at [281]) that the sentencing judge in that case had erred in failing to do so. 45.The observations of the sentencing judge in the present case regarding the timing of the applicant's pleas of guilty, and the discounts to be applied, are set out at [42]-[43] above. His Honour concluded that although the applicant's pleas demonstrated a willingness to facilitate the course of justice, any discount should be "relatively modest". 46.His Honour did not refer to the utilitarian value of those pleas. In my view, the only available conclusion is that his Honour failed to have regard to that factor. In doing so, his Honour fell into a similar error as that found by this Court in Xiao. It follows that ground 1 is made out. [And at [55]]: 55.The law strongly favours transparency in the sentencing process: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In terms of the specification of a discount to reflect the utilitarian value of a plea of guilty, such transparency is, in my view, best achieved by precision in the expression of the discount. As Howie J pointed out in Knight, expressing a discount in other than precise terms, and in terms of a range, has the capacity to place this Court in some difficulty in determining whether, in a particular case, a discount was applied at all. 1. In the joint judgement of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4, the court stated: 278.In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed. 279.There remains the question of whether it is necessary or appropriate to specify the discount given for a plea. In R v Place, where the legislation in question was in similar terms to s 16A(2)(g), the plurality stated (at [81]-[83]) that courts should be encouraged to identify the specific reduction given. That is consistent with what was said by Kirby J in Cameron (at [71) that it is desirable and certainly permissible to identify the measure of discount afforded for a plea of guilty. Further, McHugh J pointed out in Markarian (at [74]) that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing. 280.Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error. 1. Having regard to the legislation and the authorities set out above, my findings on sentence are now set out. 2. In recognition of the utilitarian value of the plea I note the timing of the plea. The first mention date after service of the Court Attendance Notices (CANs) was 21/08/18. Pleas of guilty were entered by both defendants on 18 December 2018 after negotiations and filing of some amended CANs. The pleas are taken to be pleas of guilty at an early opportunity, occurring before any service of a brief of evidence and after significant negotiations. The matter was listed for sentence on 7 February 2018, on that date the proceedings were adjourned for the filing of material by the parties. On 6 May 2018 evidence was presented at the sentencing hearing. 3. I accept that there is significant utility in the pleas of guilty, entered at an early opportunity, as a defended hearing would have expended significantly more court time. The pleas of guilty were however offered in the context of strong documentary evidence obtained by the prosecution from the investigation and search warrant. The timing of the pleas attract a substantial discount on penalty. The pleas of guilty attract a discount of 25 percent for the utilitarian value of the pleas. Penalties 1. As stated above the penalty must be imposed having regard to the objective seriousness of the offending behavior and the maximum penalty set by Parliament for the offences, not the jurisdictional limit of the Local Court (Doans case previously cited). I also have regard to totality and proportionality in terms of overall penalty. For the reasons detailed above, after assessment of the s16A matters, and consideration of the assistance provided to authorities, and the financial circumstances of the defendants, and the discount for the pleas of guilty, the following penalties apply. 2. In relation to the defendant Manurung: * Sequence 1 - $502,983 (jurisdictional limit $34,000), discount of 25 percent (considered as against maximum penalty) – fine of $15,000 * Sequence 2 - $180,000 (jurisdictional limit $36,000), discount of 25 percent (considered as against maximum penalty) – fine of $8,000 * Sequence 3 - $180,000 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $8,000 * Sequence 4 - $462,606 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $15,000 * Sequence 5 - $180,000 [$134.064] discount of 25 percent (considered as against maximum penalty) – fine of $5,000 * Sequence 6 - $190,080 - discount of 25 percent (considered as against maximum penalty) – fine of $8,000 * Sequence 7 - $695,700 - discount of 25 percent (considered as against maximum penalty) – fine of $15,000 The total fines for Ms Manurung are $74,000. 1. For ASP the fines reflect the reasons set out above, and the finding that substantial penalties are required. The maximum penalties in relation to each offence have been considered. The sentences/financial penalties are as follows. * Sequence 1 - $2,514,915 (jurisdictional limit $34,000) discount of 25 percent (considered as against maximum penalty) – fine of $34,000 * Sequence 2 - $900,000 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $30,000 * Sequence 3 - $900,000 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $30,000 * Sequence 4 - $462,606 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $25,000 * Sequence 5 - $900,000 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $30,000 * Sequence 6 - $950,400 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $30,000 * Sequence 7 - $3,478,500 (jurisdictional limit $36,000) discount of 25 percent (considered as against maximum penalty) – fine of $36,000 ASP - Making or causing a statement to be made to an officer of Customs that is false or misleading in a material particular - s 243U(1) 1. The Crown set out in submissions that the maximum penalty for an offence under s. 243U(1) of the Act, as provided for in s 243U(3), is 60 penalty units. As such, the maximum penalty for this offence as against an individual is $10,800. Applying s 4B(3) of the Crimes Act, the maximum penalty as against ASP (a body corporate), is $54,000. Applying s 245(4) of the Act any penalty exceeding 200 penalty units is abandoned. As such, the maximum penalty as against ASP which the Local Court can impose is $36,000. discount of 25 percent (considered as against maximum penalty) 2. For this charge, the fine imposed, having regard to the maximum penalty and the s16A matters set out above, and applying the discount of 25 percent for the utilitarian value of the plea, is a fine of $6000.00 3. Total financial penalty for ASP is fines in the amount of $221,000. Magistrate Huntsman 6 June 2019 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2022