CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199

New South Wales Supreme Court

CITATION : CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199

HEARING DATE(S) : 21 August 2008

JUDGMENT DATE : 18 March 2009

JUDGMENT OF : Fullerton J

DECISION : See paragraph 65

CATCHWORDS : TAXES AND DUTIES - customs and excise - the importation of tobacco - smuggling - evading payment of duty - penalty provisions

LEGISLATION CITED : Crimes Act (Cth) 1914 Customs Act 1901 (Cth)

CATEGORY : Principal judgment

CEO of Customs v Coulton [2005] NSWSC 869 CEO of Customs v Ozzy Tyre & Tube Pty Ltd & Anor [2005] NSWSC 948 CASES CITED : Chief Executive Officer of Customs v Pham [2006] NSWSC 1370 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 L Vogel & Son Pty Limited v Anderson (1968) 120 CLR 157

PARTIES : Chief Executive Officer of the Australian Customs Service (Plaintiff) Ramez Nabhan (Defendant)

FILE NUMBER(S) : SC 2008/20163

COUNSEL : MA Wigney SC (Plaintiff) W Ball (Solicitor) (Defendant)

SOLICITORS : Australian Government Solicitor (Plaintiff) W Ball (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FULLERTON J

18 MARCH 2009

2008/20163 CEO OF THE AUSTRALIAN CUSTOMS SERVICE v RAMEZ NABHAN

JUDGMENT 1 HER HONOUR: By a statement of claim filed 5 May 2008 the plaintiff, the Chief Executive Officer of the Australian Customs Service, instituted proceedings pursuant to s 245 of the Customs Act 1901 (Cth) ("the Act") against the defendant, Ramez Nabhan, seeking convictions in respect of four offences of smuggling contrary to s 233(1)(a) of the Act and the imposition of penalties by reference to s 233AB(1), and convictions in respect of four offences of evading the payment of duty contrary to s 234(1)(a) of the Act and the imposition of penalties by reference to s 234(2). 2 The plaintiff also seeks a costs order in accordance with s 263 of the Act and an order in accordance with s 21B(1)(c) of the Crimes Act (Cth) 1914 that the defendant pay the Commonwealth reparation in the sum of $3,395,709.92. 3 The charges relate to four separate importations of tobacco in the form of both cigarettes and loose-leaf tobacco between 12 November 2006 and 10 January 2007. Each importation was by sea. The statement of claim alleges that each of the offences was committed by the defendant as principal. Alternatively, it is alleged that the defendant aided, abetted, counselled or procured the commission of the offences by another person or persons, or by his acts or omissions was directly or indirectly concerned in the commission of the offences so as to be deemed to have committed the offences by the operation of s 236 of the Act.