Piatscheck v Chief Executive Officer of Customs (delivered ex tempore)
[2012] QDC 339
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- Piatscheck v Chief Executive Officer of Customs (delivered ex tempore)[2012] QDC 339
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Piatscheck v Chief Executive Officer of Customs (delivered ex tempore)[2012] QDC 339
Piatscheck v Chief Executive Officer of Customs (delivered ex tempore)[2012] QDC 339
DISTRICT COURT OF QUEENSLAND
CITATION: | Piatscheck v Chief Executive Officer of Customs [2012] QDC 339 (delivered ex tempore) |
PARTIES: | LARRY MATTHEW PIATSCHECK AND CHIEF EXECUTIVE OFFICER OF CUSTOMS |
FILE NO/S: | 4176/2011 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 2 November 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 November 2012 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | INFERIOR COURTS – MAGISTRATES COURT - APPEAL AGAINST CONVICTION – where appellant was convicted of importing a prohibited import by learned magistrate - whether error by learned magistrate INFERIOR COURTS – MAGISTRATES COURT - APPEAL AGAINST SENTENCE – where appellant was sentenced by learned magistrate - whether error by learned magistrate in exercising discretion – whether, on an appeal to the District Court against sentence, the correct approach is to consider the principles in House v The King CUSTOMS AND EXCISE – CUSTOMS PROSECUTIONS – where the appellant was convicted of importing a prohibited import – where prohibited import was a laptop computer containing files that depicted sexual acts between a human and an animal - whether error by learned magistrate in consideration of authorities Crimes Act 1914 (Cth), s 19B. Customs Act 1901 (Cth), ss 233(1)(b), 234(1)(d). Customs Prohibited Imports Regulations 1956 (Cth), reg 4A. House v The King (1936) 55 CLR 499, followed. Queen v Mohammadi [2006] QCA 530, considered. The Queen v Bull (1973) 131 CLR 203, cited. Allesch v Maunz (2000) 203 CLR 172, cited. Commissioner of Police v Toomer [2011] QCA 233, cited. |
COUNSEL: | Mr. S. Courtney appeared for the Appellant. Mr. C. Copley appeared for the Respondent. |
SOLICITORS: | Butler McDermott Lawyers for the Appellant. Australian Government Solicitor for the Respondent. |
- [1]The appellant was charged with two offences against the Customs Act 1901 (Cth). Firstly, that on the 4th of May 2010 at Brisbane in the State of Queensland contrary to s 233(1)(b) of the Act and regulation 4A of the Customs Prohibited Imports Regulations 1956 (Cth) imported a prohibited import without permission, namely a laptop computer containing files that depict matters of sex to the extent that they should not be imported, namely sexual acts between a human and an animal.
- [2]Secondly, that on the 4th of May 2010 at Brisbane in the State of Queensland he did, contrary to s 234(1)(d) of the Act, intentionally make a statement in a document to an officer of Customs, reckless as to the fact that the statement was false in a material particular.
- [3]As to these charges he pleaded not guilty to the importing the prohibited import, he pleaded guilty to the charge of intentionally making a statement in a document to an officer of Customs, reckless as to the fact that the statement was false in a material particular.
- [4]That is, in relation to that second charge he accepted that he had, in the relevant document produced to Customs officers, represented by his answer "No" that he was not bringing into Australia pornography, whereas the fact was that he was bringing into Australia pornography.
- [5]The matters proceeded before the learned Magistrate on the 1st of June 2011, when the learned Magistrate proceeded on the basis of admissions made by the appellant, that is the appellant admitted the facts in the complaint and summons in relation to the importing a prohibited import charge with some reservations.
- [6]That is, it was admitted that on the 4th of May 2010 the appellant arrived at Brisbane International Airport from parts beyond the seas, namely Hong Kong. On arrival he had in his possession one laptop computer. The laptop was examined by an officer of Customs. The examination revealed movie files and picture files stored on the laptop. Each of the images depicted acts of a sexual nature between a human and an animal and that the image produced by use of a computer on a computer monitor from electronically stored data was stored on the laptop and was a publication, namely a film within regulation 4A, paragraph 1 of the regulations and came within regulation 4A, paragraph 1A, subparagraph (a) of the regulations.
- [7]It was also admitted that he caused the laptop to be brought back into Australia from parts beyond the seas, namely Hong Kong, and the images were stored on the laptop and he knew that he caused the laptop to be brought back into Australia from parts beyond the seas, namely Hong Kong, and the laptop contained images and the images depicted acts of a sexual nature between a human and an animal.
- [8]Although it was asserted in the summons that the appellant had, as a consequence, imported the laptop containing the images the admissions did not accept that he had imported these images into Australia. It was accepted though that these images were prohibited by regulation. It was not accepted that he had imported the images into Australia. Therefore, the admissions also showed that there were 86 such images and 113 such videos.
- [9]The appellant made full admissions that he was aware that such videos and images were stored on the laptop, but he said he did not know that there were bestiality recorded videos on there, which he subscribed to at that stage not being aware that it was illegal to record it. "You give them your credit card, you give them your credit card, it didn't say anything about this was illegal" and the appellant said, "It was already on there before I left Australia."
- [10]It was accepted that the defendant did not have permission of the Attorney-General to import such material. Therefore, the issue before the learned Magistrate in relation to the prohibited import charge was whether the prosecution had established beyond reasonable doubt that the appellant had imported these images contrary to the Act.
- [11]The learned Magistrate heard submissions and then reserved his decision, giving his decision on the 17th of June 2011. The learned Magistrate concluded that the appellant did import the images on his laptop, even though they had originated from Australia.
- [12]In the course of his reasons the learned Magistrate said at [20]:
“The gravamen of import is focused on crossing the border into Australia without being concerned with the origin of the prohibited good or what is intended to do with them. In similar vein export is concerned with crossing the border out of Australia and is not concerned with their destination or intended movements or use of them. References in the cases to goods arriving from abroad did not mean they must have originated from abroad, but simply that they are brought into Australia from abroad regardless of their origin. In my view, that submission carries weight and is supported by the statements of Gibbs J in Bull relied on by de Jersey CJ in Mohammadi as well as the above statements of principle in subsequent appellate Court judgments in Campbell and Toe, adopted in Handlen and Padderson.”
- [13]In the course of his reasons the learned Magistrate examined a number of authorities, in particular he referred to The Queen v Bull (1973) 131 CLR 203 and The Queen v Mohammadi [2006] QCA 530. After examining all the relevant authorities the learned Magistrate said that he preferred the judgment of the De Jersey CJ in arriving at his ultimate finding.
- [14]It is to be noted, as has been noted in the other authorities, that the Customs Act 1901 (Cth) does not define the word "import". Clearly, the facts in the present matter are different to those in The Queen v Bull and The Queen v Mohammadi. However, in The Queen v Mohammadi the Chief Justice said at [20]:
“Consistently with the above analysis an importation should be regarded as having occurred if goods are brought from outside the territorial boundaries of Australia into an Australian port. They are then brought from abroad, which is the essence of importation. They are brought into a country from outside that country. The word "importation" derives from the Latin 'portare' meaning 'to carry', hence the act of carrying in. Coming from abroad means coming from outside one's home country - Oxford English Dictionary - not necessarily from any particular foreign land mass or populated place. The Macquarie Dictionary defines 'abroad' as 'any place outside one's own country, especially if overseas.' Most often the goods will have come from a foreign country, but that is not essential for there to be an importation. Consistently with that, the Australian Oxford Dictionary Second Edition 2004 offers as the first meaning for the word 'import' 'bring in, especially foreign goods or services to a country.' On the assumption these drugs originated in Darwin they were nevertheless imported into Australia when they were not left in international waters, but brought back into the port of Townsville.”
- [15]His Honour also then referred, it would seem with approval, to an example offered by counsel appearing for the Commonwealth Director of Public Prosecutions. The example was:
“Assume that A takes drugs overseas, arrives in another country and for some reason returns to Australia with those drugs. That person would be importing into Australia. That the drugs originated in Australia would not alter that.”
- [16]Further, the Chief Justice in [22]-[24] of his judgment refers to other examples, obviously with apparent approval:
“Take the case of a person who transports drugs from Australia to another country. Intending to sell them there he finds a limited market so brings them back into Australia for distribution here. That would involve importation of the drugs into Australia, notwithstanding they originated here. Perhaps more directly bearing on the present scenario, assume the discovery in international waters of a drug cache in an abandoned vessel. If the finder brought those drugs into Australia he would import them, notwithstanding there was no evidence of their origins. As another example, assume the actual production of unlawful drugs in a vessel moored just outside Australian territorial waters, their being moved into Australia from abroad would involve an importation into Australia.”
- [17]However, President McMurdo did not share the Chief Justice's view of what might amount to importation. At [83] the learned President said:
“To import goods into Australia under section 233B it is, in my view, necessary that the goods are sourced from outside Australia, that is, from abroad. What then the person who takes prohibited drugs from Australia to another country and then returns to Australia with some or all of the drugs? Has the person then imported the drugs into Australia? The answer will turn on the precise factual matrix. If the goods were taken abroad for export, perhaps so, if for personal use during an overseas trip, perhaps not.”
- [18]Justice Chesterman, who was the other presiding Judge in The Queen v Mohammadi, did not deal with these issues of what amounted to importation.
- [19]Among a number of submissions that have been made Mr Courtney, who appears for the appellant, submitted that the purpose of the Act was not to penalise a person in the appellant's position. He submitted the legislation does not prohibit a person in the appellant's position. It is not illegal to possess these goods in Australia. The appellant had no intention of leaving them outside Australia. They were on his computer and brought back in the journey that originated here.
- [20]However, Mr Copley, who appears for the respondent, submits there is no ambiguity in the legislation and no need to apply the principles regarding penal legislation. There is no patent or latent ambiguity and in this case the appellant has imported these prohibited imports.
- [21]I do not propose to re-examine all the authorities referred to by the learned Magistrate. This is not a case where the Magistrate's decision turns on some question of fact or the credibility of witnesses. I do not accept that the learned Magistrate has made an error in this case on the question of whether these goods were an import within the Act. Error must be shown. See Allesch v Maunz (2000) 203 CLR 172 at [23] and Commissioner of Police v Toomer [2011] QCA 233 at [23].
- [22]I am satisfied the learned Magistrate in the present matter reached the correct conclusion, despite the conflict between the judgments of the Chief Justice and the President.
- [23]There was some issue taken with whether the learned Magistrate had proceeded to conviction. It seems to me that the matter was accepted as having been a finding of guilt and that the matter proceed to conviction and sentence. The learned Magistrate said in response to the appellant's solicitor who said, "Nothing further needed to be done other than he be convicted and sentenced" and the learned Magistrate said, "I'll proceed on that basis." To me that is a clear indication that the Magistrate was convicting and proceeding on sentence.
- [24]The sentence then took place, I might say before a different Magistrate, although that does not amount to anything. The learned Magistrate heard submissions and imposed a global fine for the two offences of $10,000 and allowed the appellant 12 months to pay the fine, in default 100 days' imprisonment. There were some other costs that were allowed.
- [25]The learned Magistrate was asked to proceed to sentence the appellant on the basis of section 19B of the Crimes Act 1914 (Cth). That provides, in effect, that the Court, having regard to the character, antecedents, cultural background, age, health or mental condition of a person or the extent, if any, to which the offence is of a trivial nature or the extent, if any, to which the offence was committed under extenuating circumstances, it is inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment or that it is expedient to release the offender on probation.
- [26]The Court may, by order, dismiss the charges or discharge the person without proceeding to conviction upon giving security with or without sureties by recognisance or otherwise to the satisfaction of the Court on a condition that they be of good behaviour for such period not exceeding three years and that the person make reparation or restitution or pay compensation. Further probation can be applied for a period not exceeding two years.
- [27]The learned Magistrate, having the submissions, was aware that there was no commercial or financial aspect to the offending, also that it was not illegal to possess these items in Queensland. There was no intention to publish the items, they were for his personal use.
- [28]He was 35 years of age at the time of offending and was 36 at the time of sentencing. He did not have a criminal history for like offending. The last entry in his criminal history was five years earlier. That he had cooperated with the administration of justice and pleaded guilty to one of the charges and defended the other charge on the only issue being import. He also made full admissions to the authorities and he only took these items out of the country and did not know that it was illegal to bring them back in. That he had a reasonable work history and that he may wish to travel if he became involved in his father's business, which involved travel overseas. A conviction could hinder his ability to travel and earn income and travel, even for personal reasons.
- [29]Notwithstanding what may appear a substantial number of mitigating factors the learned Magistrate declined to apply section 19B. The learned Magistrate did not consider the offending to be trivial in nature, nor that there were extenuating circumstances.
- [30]On the hearing of this appeal the appellant submits it is not the correct approach to apply House v The King (1936) 55 CLR 499. Rather, as this is a rehearing that the matter should be determined by me on the available facts.
- [31]In House v The King the Court said at page 504-505:
“But the judgment complained of, namely sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the Court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the appellate Court consider that if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.”
- [32]In my opinion, on an appeal to the District Court against sentence the approach is to consider the principles in House v The King.
- [33]Counsel for the appellant accepted that the authorities put before the learned Magistrate on comparable sentences showed a range of between eight and $10,000 for offending of this kind, subject to his submission though that the Magistrate apply section 19B.
- [34]I am satisfied the learned Magistrate made no error in the sentencing of the appellant. The comparable sentences, although they of course each had different facts and circumstances that one might be able to point to, nevertheless showed a range that was accepted. In my opinion the learned Magistrate applied a proper penalty in the circumstances, notwithstanding the number of mitigating factors and other circumstances that I have referred to.
- [35]Therefore, I have come to the view that the appeal be dismissed and the order I make is that the appeal is dismissed.
- [36]I order the appellant to pay the respondent's costs of the appeal fixed in the sum of $1,800 to be paid by the appellant to the Registrar within three months of today to be paid to the respondent.