Chief Executive Officer of Customs v Price
[2005] QDC 279
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- Unreported Judgment
- Chief Executive Officer of Customs v Price[2005] QDC 279
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Chief Executive Officer of Customs v Price[2005] QDC 279
Chief Executive Officer of Customs v Price[2005] QDC 279
DISTRICT COURT | Claim No 152 of 2000 |
CIVIL JURISDICTION
JUDGE WHITE
CHIEF EXECUTIVE OFFICER OF CUSTOMS | Plaintiff |
and
CHARLES JOSEPH PRICE | Defendant |
CAIRNS
..DATE 25/08/2005
JUDGMENT
HIS HONOUR: This is claim number 152 of 2000, Chief Executive Officer of Customs, plaintiff, Charles Joseph Price, defendant.
On the 20th of May 2005 I provided to the parties a copy of my reasons for judgment and adjourned further proceedings on the claim to the 20th of June 2005. In the meantime, counsel provided written submissions in relation to penalty and costs.
Although my reasons for judgment foreshadowed the orders I proposed to make, an examination of the transcript reveals that I have not yet formally pronounced any judgment or orders in relation to the claim.
It is common ground that pursuant to the provisions of section 117 and 119, punishment by way of penalty is to be determined pursuant to section 129 of the Excise Act. It expressly provides for the penalty to be imposed in this case, as follows:
- (1)Where an offence is punishable as provided by this subsection, the penalty applicable to the offence is-
- (a)where the Court can determine the amount of the duty that would have been payable on the goods to which the offence relates, if those goods had been entered for home consumption, or-
- (i)where the date on which the offence was committed is is known to the Court, that date, or
- (ii)where the date is not known to the Court, the date on which the prosecution for the offence was instituted; a fine not exceeding five times the amount of that duty and not less than two times that amount, or
- (b)where the Court cannot determine the amount of that duty, a fine not exceeding $50,000.
There is a also a relevant limitation imposed by section 134 which provides as follows:
- (2)Where an excise prosecution for a pecuniary penalty that, but for this section, would exceed $20,000 is instituted in a Court referred to in paragraph (1)(d) or (e), the amount of that penalty that exceeds $20,000 shall be taken to have been abandoned. It is accepted that this effectively limits the maximum penalty for each contravention of the Act to $20,000.
Section 146 of the Excise Act is also relevant, it provides:
“No minimum penalty imposed by this Act shall be liable to reduction under any power of mitigation which would, but for this section, be possessed by the Court.”
Mr Priestly has provided me with a schedule of the excise payable in respect of each of the offences, the minimum penalty and the maximum penalty pursuant to the above sections. The arithmetical calculations are not in dispute, I will mark those schedules as Exhibit 3.
So far as penalty is concerned it must be said that there was a prolonged course of conduct over approximately one year. By reason of his background in the tobacco industry there can be no doubt that the defendant knew that what he was doing was contrary to law; there is no suggestion of any remorse. In his favour, I accept and take into account his personal history as outlined in Mr Jonsson's written submissions on penalty. The defendant's sole motivation must have been a desire for financial gain, but the culpability of his conduct must be judged against a life of significant financial hardship for him and his family.
One matter in relation to penalty has troubled me greatly. If the defendant had fulfilled his lawful obligations to pay excise, he would have been liable to pay excise once only in relation to each of the consignments or parcels of tobacco, the subject of the claim.
Giving due weight to the minimum and maximum penalties provided by section 129, I would have concluded that a penalty of three times the excise payable (subject to the maximum of $20,000 where applicable) would be an appropriate penalty.
However, subject to such limitations it seems to me that the effect of section 129 is that the minimum and the maximum penalties provided for apply to each set of offences, so that the practical result in this case is that the minimum total penalties is approximately four times the excise payable and the maximum total penalties payable is 10 times the excise payable. I have invited submissions to see if it is possible to avoid such a result.
Mr Jonsson refers to subsection 4(C)(1) of the Crimes Act 1914 which relevantly provides as follows:
“Where an Act or omission constitutes an offence;
- (a)under two or more laws of the Commonwealth the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth, but shall not be liable to be punished twice for the same Act or omission.”
The difficulty with this section is that the offences alleged against section 117 were constituted by the act of possession, either personally or by an agent, at Cairns immediately before the packages of tobacco were handed over to McCaffertys for transport. The offences against section 119 were constituted by the act of conveying the packages through the agency of McCaffertys between Cairns and Howard or Burrum Heads. In 1 other words, the essential act of conveying was a continuing one involving movement of the packages between Cairns and their destination, whether it be Howard or Burrum Heads. This was the factual case as pleaded in the statement of claim, as opened by Mr Priestly for the plaintiff at the start of the trial, and as found by me in my reasons for judgment.
The result is that the offences proved against the defendant are not constituted by the same Act and therefore, in my view, subsection 4(C)(1) has no application.
I now turn to calculate the penalty which in my view should be the minimum for the reasons set out above. For the section 117 offences in relation to the packages specified in schedule 1, the starting point from Exhibit 3 is $439,230.10. I deduct from that $116.09 to take account of the half a kilo of dried fruit contained in one of the consignments to the Davidsons. The result is $439,114.01. The penalty for the section 119 offences in relation to schedule 1 is the same figure.
For the section 117 offences in relation to the packages specified in schedule 2, the starting point is $160,695.02. The amount of excise payable in respect of consignment number 13 cannot be determined, therefore, paragraph (B) of section 129 applies. There is no minimum penalty. In the exercise of my discretion I impose no penalty in respect of that consignment for both the section 117 and the section 119 offences. The total penalty for each of the section 117 and 119 offences in schedule 2 therefore, is $160,695.02. The total penalties for all of the offences is then $1,199,618.06.
You might care to just check my arithmetic, gentleman. In any event, if it emerges that I have made an arithmetical error it can always be remedied in the future.
To formalise the proceedings, I formally publish my reasons provided to the parties on the 20th of May 2005, amended by deleting any reference therein to 40 offences and inserting 50 offences.
I order as follows:
- (1)That the Chief Executive Officer of Customs be removed as plaintiff in the proceeding;
- (2)That the Commissioner of Taxation be included as plaintiff in the proceeding;
- (3)That the plaintiff amend the proceedings in accordance with rule 74 of the Uniform Civil Procedure Rules;
- (4)That the plaintiff have leave to amend the statement of claim in paragraphs 5 and 9 thereof, by including the words “manufactured or partly manufactured” before the word “tobacco”;
- (5)I declare that the defendant has committed 50 offences against section 117 of the Excise Act 1901 as amended, as particularised in schedules 1 and 2 of the statement of claim;
- (6)I declare that the defendant has committed 50 offences against section 119 of the Excise Act 1901 as amended, as particularised in schedules 1 and 2 of the statement of claim;
- (7)That convictions be entered against the defendant in respect of the said offences;
- (8)That there be judgment for the plaintiff against the defendant for $1,199,618.06.
In my view, rule 689 of Uniform Civil Procedure Rules applies to this case. I am unpersuaded that there is any basis for a special order. I order that the defendant pay the plaintiff's costs of an incidental to the claim, to be assessed on the standard basis.
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