Reported Decision : 130 A Crim R 148 New South Wales Supreme Court CITATION : CHIEF EXECUTIVE OFFICER OF CUSTOMS v ABDALLA NASHER [2002] NSWSC 517 FILE NUMBER(S) : SC 20542 of 2001 HEARING DATE(S) : 5 June 2002 6 June 2002 JUDGMENT DATE : 12 June 2002 CHIEF EXECUTIVE OFFICER OF CUSTOMS (Plaintiff) PARTIES : v ABDALLA NASHER (ALSO KNOWN AS ABDALAH NACHAR) (Defendant) JUDGMENT OF : Levine J COUNSEL : S VORREITER for AUSTRALIAN GOVERNMENT SOLICITOR (Plaintiff) SOLICITORS : NO APPEARANCE (Defendant) CATCHWORDS : Customs Act, (1901) sections 233(1)(a), 234(1)(a), 234(1)(d)(ii), 233AB, 234(2), 234(3) - smuggling - evasion of duty - false statement - summary judgment LEGISLATION CITED : Customs Act (1901) Customs Tariff Act (1995) Button v Evans [1984] 2 NSWLR 338 CASES CITED : Comptroller General of Customs v Aquino Bros (1996) 85 A Crim R 517 Pearce v The Queen (1998) 194 CLR 610 DECISION : See paragraph 23 - 5 - DLJ: 1 [2002] NSWSC iN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE Wednesday 12 June 2002 20542 of 2001 CHIEF EXECUTIVE OFFICER OF CUSTOMS (Plaintiff) v ABDALLA NASHER (ALSO KNOWN AS ABDALAH NACHAR) (Defendant) JUDGMENT ( Customs Act , 1901 - sections 233(1)(a), 234(1)(a), 234(1)(d)(ii), 233AB, 234(2), 234(3) – smuggling – evasion of duty – false statement – summary judgment) 1 By Notice of Motion filed on 24 May 2002 the plaintiff seeks orders for summary judgment in accordance with SCR Pt 13 in respect of certain claims made in the Statement of Claim filed in the proceedings. 2 In support of that Notice of Motion an affidavit sworn 22 May 2002 by Colin Mark Bulloch, Customs Officer, was read. Exhibited to that affidavit is a folder of relevant material marked "CMB-1" constituting a brief of evidence. 3 Service of the Notice of Motion together with the affidavit of Mr Bulloch has been proved by the affidavit of Stephen Frank Vorreiter sworn 3 June 2002. No appearance or Defence has been filed to the Statement of Claim. 4 The defendant was the registered owner of the business name "Nashar Trading" and conducted a business from premises in Punchbowl. 5 The first offence alleged is under s 233(1)(a) of the Customs Act 1901 that the defendant on about 21 December 2000 smuggled 899,200 sticks of King Size Flip Top Box Filter Marlboro cigarettes. 6 On or about 16 August 2000 the defendant travelled from Australia to Indonesia to purchase furniture to be exported to this country. Whilst in Indonesia the defendant purchased furniture and arranged for the Indonesian entity PT Camar Kencana to represent itself as the supplier and shipper of the furniture. On about 29 August 2000 the defendant supervised the loading of container number HCLU4126420 with the furniture. That container was empty before the furniture was packed into it. The defendant had caused cigarettes to be concealed within the furniture before it was packed into the container. The defendant sealed the container after it was packed with the furniture. The defendant caused the container, including the furniture and the cigarettes, to be brought from parts beyond the seas into Sydney on board the vessel "Fei Yun He" which arrived in Sydney on about 21 September 2000 for the purposes of discharging them there, and the container including the furniture and cigarettes was there discharged. 7 In early September 2000 the defendant employed the freight forwarding agent United Cargo Pty Ltd to arrange the entry of the container for home consumption and for this purpose gave United Cargo Pty Ltd a set of shipping documents relating to the container, including a bill of lading, a packing list, an invoice and a fumigation certificate. United Cargo Pty Ltd employed Davies International Freight Pty Ltd to make and lodge with Customs an entry for home consumption with respect to the container. On 19 September 2000 the defendant, through its agent, caused a form of entry for home consumption numbered 1S02361406c to be produced to the Chief Executive Officer of Customs in respect of the container. That entry for home consumption referred to and disclosed 125 packages of furniture but did not refer to or disclose the cigarettes in the container. On 26 September 2000 the cigarettes were located by customs officers following an inspection of the container and were seized. On 29 September 2000 Davies International Freight Pty Ltd amended the entry for home consumption referred to above to reflect that there were only 25 packages of furniture and not 125. The cigarettes were not disclosed in the amended entry for home consumption. The cigarettes were not disclosed in any entry for home consumption produced to the plaintiff or any other officer of the Australian Customs Service. 8 As at 21 September 2000 Chapter 24 of Schedule 3 of the Customs Tariff Act, 1995 provided that cigarettes were dutiable at the rate 0.19481 per stick. Customs duty of $175,173.15 was payable on the cigarettes and was not paid at the time of importation and remains unpaid. The cigarettes contain tobacco. The Indonesian entity PT Camar Kencana has never represented to the defendant or any other person that the wrong goods were packed into the container. 9 These are the facts relied upon in support of the allegation of "smuggling" under s 233(1)(a). 10 The plaintiff relies upon the same matters in support of the second offence, namely that the defendant did, on or about 19 September 2000, evade payment of duty which was payable on the importation of the cigarettes into Australia contrary to s 234(1)(a) of the Act. 11 The third matter alleged against the defendant is that he on about 19 September 2000 at Sydney in New South Wales did knowingly and recklessly omit from a statement made to an officer, a matter without which the statement was misleading in a material particular, by not declaring the cigarettes in entry for home consumption number 1S02631406c and by not declaring the cigarettes in any other entry for warehousing, transhipment or home consumption contrary to the provisions of s 234(1)(d)(ii) of the Customs Act. 12 In relation to the third matter the same facts referred to above are relied upon. 13 The plaintiff claims first, that the defendant be found to have committed an offence of smuggling and be convicted thereof pursuant to s 233(1)(a) of the Act. Similar orders are sought in relation to the evasion of payment of duty under s 234(1)(a) of the Act and in respect of knowingly or recklessly omitting from a statement a matter without which the statement was misleading in a material particular contrary to s 234(1)(d)(ii) of the Act. 14 Penalties are sought in relation to each of the offences: in relation to the first, that as provided by s 233AB of the Act in the circumstances therein referred to, being a penalty being not in excess of five times the amount of duty. In relation to the second offence the penalty is not to exceed five times the amount of duty and not less than twice the amount pursuant to s 234(2) of the Act. In relation to the third offence the penalty sought is that provided by s 234(3) of the Act being a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods. 15 The computation of the penalties is founded upon what is averred to be the customs duty payable on the cigarettes (paragraph 21 of the Statement of Claim) namely $175,173.15. 16 Orders as to costs and that the relevant goods be condemned as forfeited to the Commonwealth pursuant to s 205D(3) are also sought. 17 These proceedings have been instituted in this Court pursuant to s 245 of the Customs Act and the procedure to be applied is the ordinary procedure of this Court in civil cases. The plaintiff has averred facts in the Statement of Claim and such averments become prima facie evidence of the facts averred (see s 255 of the Act). The weight of authority seems to be that the civil standard of proof applies (see Comptroller General of Customs v Aquino Bros (1996) 85 A Crim R 517 at 523 and the decision of Carruthers J in Button v Evans [1984] 2 NSWLR 338 at 49-353). If the position were otherwise I can indicate now my satisfaction to the requisite degree of beyond reasonable doubt by reference to the overwhelming case against the defendant constituted by the material in exhibit CMB-1. I am satisfied that each of the offences has been established by the material tendered and accepted by me in support of the averments in the Statement of Claim. 18 I am satisfied by reference to the affidavit of Mr Vorreiter sworn 3 June 2002 and the translations of two statements made in Indonesian by Mr Jazuli that the evidence establishes that the defendant asked that person to purchase the Marlboro cigarettes, to assist him and call upon others to assist in packing the cigarettes inside the furniture that was loaded into the container, that the defendant was present and assisted in the loading of the container and sealed it and that the defendant asked that person to nominate himself as the supplier of the goods. The defendant's registered business name "Nashar Trading" was nominated on the bill of lading and the entry for home consumption including the amended entry for home consumption as the owner of the goods in the container. The defendant paid by cheque drawn on the account of his business the sum of $6,000.00 for freight, insurance and associated charges in relation to the importation of the container which on 18 October 2000 was delivered by controlled delivery to premises at Roselands where the defendant was present. 19 Another item of evidence drawn to my attention was a facsimile date 9 October 2000 purporting to have been received by the defendant from Mr Jazuli asserting that there had been an error in packing. The record of interview contained in CMB-1, inter alia, confirms that the defendant did nothing in response to that facsimile; he accepted delivery of the container and gave no advice either to his customs broker or the Customs that the amended entry for home consumption contained false information. The conclusion readily to be reached is, to say the least, that the exercise involving the facsimile was spurious. 20 I am satisfied that each of the offences under the respective sections has been established. 21 As to penalty, the plaintiff contends and I do not think it is inappropriate that the principle of "totality" apply and that regard should be had to what the High Court said in Pearce v The Queen (1998) 194 CLR 610 at 624 (paragraph [45]). 22 All three offences arise out of the same transaction, the principal one of which (smuggling) constituted a blatant infringement of Australian Customs law by a person who otherwise has no adverse or any criminal antecedents according to the information available to me. The view to which I have come is that the intimacy of the connection between each offence is such that the interests of justice can be served by the imposition in relation to the substantive offence, namely smuggling, of the maximum penalty available, namely $875,865.75 and that for the other two offences the minimum of $350,346.30 and $355,346.30 respectively be imposed. 23 Accordingly, the orders are: 1. The defendant is convicted of the offence of smuggling cigarettes contrary to s 233(1)(a) of the Customs Act. 2. The defendant is ordered to pay the plaintiff the penalty in the sum of $875,865.75. 3. The defendant is convicted of the offence of evading payment of duty with respect to the cigarettes contrary to s 234(1)(a) of the Customs Act. 4. In respect of the offence of evading payment of duty the defendant is ordered to pay the plaintiff a penalty of $350,346.30. 5. The defendant is convicted of the offence of knowingly omitting from a statement made to an officer a matter without which the statement was misleading in a material particular contrary to s 234(1)(d)(ii) of the Customs Act. 6. In respect of the offence under s 234(1)(d)(ii) the defendant is ordered to pay the plaintiff the penalty of $355,346.30. 7. The defendant is ordered to pay the plaintiff's costs. 8. I order that the goods the subject of the charges be condemned as forfeited to the Commonwealth pursuant to s 205D(3) of the Customs Act. 9. I enter judgment for the plaintiff in respect of the sums referred to in each of orders 2, 4 and 6. ********** Last Modified: 06/17/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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