New South Wales Supreme Court CITATION : Chief Executive Officer of Customs v Hajied [2006] NSWSC 34 HEARING DATE(S) : 6 February 2006 JUDGMENT DATE : 9 February 2006 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : DEFENDANT CONVICTED; PENALTY IMPOSED CATCHWORDS : CUSTOMS - OFFENCES - SMUGGLING, DUTY EVASION FALSE ENTRY - NOT CONTESTED - ONE TRANSACTION AND SINGLE PENALTY APPROPRIATE - MEANS OF OFFENDER NOT A REASON FOR REFRAINING FROM DETERRENT PENALTY LEGISLATION CITED : Crimes Act 1914 Customs Act 1901 PARTIES : Chief Executive Officer of Customs v Mohamad Hajied FILE NUMBER(S) : SC 20163/05 COUNSEL : R. Horsley (Plaintiff/Crown) R. Lee (Defendant) SOLICITORS : Australian Government Solicitor (Plaintiff) Chouman & Weston (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Thursday 9 February 2006 20163/05 - CHIEF EXECUTIVE OFFICER OF CUSTOMS v MOHAMAD HAJIED JUDGMENT 1 HIS HONOUR: In proceedings commenced by statement of claim the plaintiff, the Chief Executive Officer of Customs, seeks conviction of the defendant Mohamad Hajied for offences of smuggling contrary to s 233(1)(a) of the Customs Act 1901 (the Act) evading payment of duty contrary to s 234(1)(a) of the Act and intentionally omitting a material matter from a statement made to customs contrary to s 234(1)(d)(ii) of the Act. 2 The defendant filed an appearance through solicitors who retained counsel on his behalf. No defence to the statement of claim was filed. In the defendant's presence counsel confirmed his acknowledgement of guilt of the three matters in respect of which conviction is sought. 3 The offences arose out of a single transaction, the facts in respect of which were put before the Court in an agreed summary (Exhibit A). 4 In short, in September 2004 the defendant travelled to Syria to purchase goods which were to be imported into Australia and sold here. Half of the costs of the enterprise were paid by the defendant's brother, who told customs that he understood that the goods would consist of blankets, foodstuffs and general trade goods. 5 The defendant returned to Australia in October 2004. On 3 January 2005 a vessel CSCL Yantai arrived at Port Botany and, inter alia, discharged a container of goods, the import of which had been arranged by the defendant. His brother was nominated as consignee in the relevant bill of lading. Other documentation included a packing declaration, certificate of origin, packing list, commercial invoice and a completed entry for home consumption. 6 The documentation purported to relate to the content of the container and described it as blankets, foodstuffs and other trade goods referred to on occasions by a generic term "orientals". 7 No mention was made in the any of the documentation of the existence within the cargo of a large number of cigarettes. These, it was ascertained, ultimately were spread throughout various items within the container. Investigation detected 398,940 sticks of cigarettes. Had these been correctly entered as part of the importation they would have attracted a payable duty of $A 89,175.06. 8 On 18 January 2005 investigators executed a search warrant at premises at Greenacre where, according to an affidavit filed by the defendant, he has since resumed cohabitation with his wife following a separation. He was personally present at the premises when the warrant was executed. On that occasion some conversation took place after the defendant had been cautioned and he admitted that he knew that the cigarettes were in the container and that his intention was to make some profit from resale in order to pay some legal fees owing in respect in his son Bilal, who he said was serving long prison sentence. In these conversations with investigators the defendant was assisted by another son Jamal who acted as an interpreter. 9 Later at Bankstown Police Station a formal interview took place and the defendant again requested that Jamal assist him as an interpreter. This was permitted. He confirmed that he had seen cigarettes put into the container; that he knew that there were "maybe" 2,400 packets of cigarettes; and that he anticipated making a profit "for smokes I make 20,000 or 30, 45,000 or something like that….." 10 The defendant said he had no fixed plan or arrangement for onselling the cigarettes and that, in effect, he had sought to avoid payment of the "tax" in order to have money to pay his son Bilal. The clear inference was that Bilal would use this money to settle the debt earlier mentioned. The defendant said that he believed that if customs found the cigarettes he would simply be required to pay "the tax". 11 The cigarettes have been seized. The defendant's brother who, I have noted, was nominated on the bill of lading as consignee, was handed a copy of the seizure notice when he attended for interview on 19 January 2005. 12 There is a prescribed maximum penalty, calculated in this instance as five times the duty payable, that is $445,875.30 for the offence for smuggling. For evading payment of duty there is an identical maximum penalty but there is also prescribed a minimum penalty of not less than twice the duty payable, that is $178,350.12. For the false statement to customs by omission there is also prescribed a maximum penalty of twice the payable duty plus fifty penalty units. At the relevant time a penalty unit was $100, although this scale has since been altered. 13 It is recognized, however, that the Court has a discretion pursuant to s 4K of the Crimes Act 1914 to pass a single sentence where offences are founded on the same facts or are part of a series of offences of a similar character. All three offences committed by the defendant are associated with his intention to make a profit from the onsale of the cigarettes which he smuggled, evading payment of duty and deceiving customs. I consider that this is an appropriate case for a single penalty, which, of course, cannot be less than the minimum prescribed and applicable for the offence of evasion, nor, for that matter, can the penalty exceed the sum of available maximum penalties for the three offences. 14 The facts disclose a blatant intention by the defendant to avoid his revenue obligation. His motive was plain financial gain although his assertions that he intended to apply ill-gotten gain to the relief of his son's indebtedness was not challenged. I do not perceive that intention to be a matter of mitigation. It offers some explanation for the defendant's decision to engage in unlawful activity. 15 Although his answers to investigators reveal a certain candour, they also show an attitude of willingness to undertake deliberate unlawful activity in the belief that detection would only result in being obliged to pay any requisite impost. Nothing said by the defendant in the material put before the Court (including his own affidavit) is suggestive, let alone demonstrative, of remorse or contrition. I consider that the submission of the plaintiff that the offences were calculated and deliberate has been sustained on the evidence and I find accordingly. 16 Pursuant to s 16C of the Crimes Act 1914 I am required, before imposing a fine, to take into account the financial circumstances of the defendant. I shall return to this consideration. 17 As the offences are created by Commonwealth legislation I am obliged to assess proportionate sentence in accordance with s 16A(1) of the Crimes Act 1914 and, where relevant, take into account, the various matters scheduled in s 16A(2) of that Act. 18 I have already noted the nature and circumstances of the offences including the course of conduct by the defendant which led to their commission. 19 As mentioned, the defendant manifested no detectable remorse in his responses to investigators, nor, save what might be implied from his pleas of guilty, has he since manifested a contrition or remorse. In my view the pleas of guilty recognized the inevitability of conviction. 20 The defendant however, can and should receive some favourable consideration for the practical utility for his early acknowledgement of guilt and his cooperation with authority in the admissions which were forthcoming when he was confronted with the allegations. 21 I note that it is accepted that the defendant has no prior convictions. He is aged fifty one years. He has four sons, one attending tertiary studies, two younger than that and the fourth son, serving a gaol sentence as already remarked. 22 A report dated 26 November 2004 records that the defendant had suffered a left cortical stroke in May 2002 after which he suffered transient ischaemic attacks which have some effect upon the right side of his body. Nevertheless, subsequent to this, in September and October 2004 he travelled to and from Syria and made the arrangements which constituted the offences. 23 His affidavit reveals no assets save a very old motor car, and his income from taxi driving and Centre Link would seem to total $408 per fortnight. He states that his wife pays the rent on the premises at Greenacre of $710 per fortnight. I have no information concerning her assets or means. The defendant has a trivial amount of money in the bank to which he is indebted for credit card expenditure as well as being indebted to Centre Link which apparently made an advance to him against future entitlement. 24 I have no specific information about his cultural background nor concerning the probable effect of the order upon his family or dependants. That absence includes any information as to whether any member of his family is in fact dependent upon him in a financial sense. 25 A written submission on behalf of the plaintiff accepted that the defendant's financial circumstances should be considered "as expressly required by s 16C of the Crimes Act 1914". In returning to this matter I note that it is implicit in the submission that the imposing of penalties as made available for these offences by s 233AB(1)(a), s 234(2)(a) and s 234(3) of the Act are comprehended within the expression "imposing a fine" in s 16C. The implication is consistent with the drafting of various provisions in the Customs Act which speak of offences being punishable by penalty and, where this is pecuniary in nature, it is obviously of the same essence as a fine. 26 It is clear that, on the information before the Court, there is little real prospect of the defendant significantly meeting any monetary penalty. Nevertheless it is to be borne in mind that I am obliged to impose at least twice the amount of duty payable as a financial penalty in accordance with the prescribed minimum attaching to the offence of evasion. 27 Although I have taken the defendant's means into account, it remains a relevant factor in the assessment of sentence to reflect the deterrence of others as well as himself from similar misconduct. It is often noted that the customs system must to a large degree depend upon the honesty of shippers and importers and it should be made abundantly clear that offences such as the present will attract substantial penalty. 28 No submission was made on behalf of the defendant in opposition to the order for costs sought by the plaintiff which, having regard to the matters set out in the affidavit of Jodie Lee-Anne Maurer, affirmed 3 February 2006, I assess at $7,200. 29 Taking all of the above into account, I formally convict the defendant of the three offences (smuggling, evasion of duty and false statement) identified in paragraph 21, 22 and 23 of the statement of claim and in respect of those three offences, I order that he pay a single penalty of $250,000. 30 The defendant is further ordered to pay the plaintiff's costs which I assess in the sum of $7,200. ********** 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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