Court Determines Sentence for Defendant Charged with Illegal Importation

​​CDPP v Lin [2022] VCC 1099 (18 July 2022)

Xiaoning Lin was charged with importing tobacco products with the intention of defrauding the revenue. His charge encompassed four importations over a period of eight months. The Court, in determining the appropriate sentence, assessed his persistence in the offending despite clear warnings of the risk of detection.

Facts:

Xiaoning Lin have pleaded guilty on indictment to one charge of importing tobacco products with the intention of defrauding the revenue, contrary to sub-section 233BABAD(1) of the Customs Act 1901 (Cth).  The offence to which he has pleaded guilty is a rolled-up charge relating to four separate importations over a period of 8 months between 29 July 2020 and 29 March 2021. He is a Chinese citizen by birth, and arrived in Australia on a visitor visa in May 2018. He is also known by the name ‘Jayson’.

On or before 20 July 2020, a freight forwarder, 1UpCargo, was engaged by an agent in China to facilitate an importation (ID: S00007289) in the name of Kean Yi-Khor.  1UpCargo was provided with an image of a false New South Wales licence in the name of Khor.

On 20 July 2020, 1UpCargo processed the paperwork in respect of this importation, which was declared as ‘hydraulic pressure stands’ and addressed to 54 Mercedes Drive, Thomastown with the phone number 0423 836 537. The Khor importation arrived in Australia on 29 July 2020, found to contain 14 hydraulic pressure stands.

Concealed in each stand were 80 silver packages of tobacco, each weighing 162 kilograms, making a total of 2,268 kilograms. ABF removed the tobacco and repacked the container for delivery. The total amount of duties and GST payable on the tobacco seized was $3,210,181. 

On 7 August 2020, the consignment was delivered to 54 Mercedes Drive, Thomastown. At the time of delivery, he was present along with another person named Zhongxiang Xue who operated a business called Kadason Auto Services at 56 Mercedes Drive. 54 and 56 Mercedes Drive shared a common driveway. 

He ushered the driver of the consignment onto the driveway, identified himself as ‘Kean’, and accepted delivery of the consignment.  On the evening of 7 August 2020, Mr. Wang, an employee of 1UpCargo received threatening messages and phone calls in Mandarin from international numbers. On 11 August 2020, the transport company CY Logistics was hired by ‘Kean Yi-Khor’ to pick up a consignment described as a motor cabinet from 54 Mercedes Drive, bound for export to Guangzhou, China.

On 27 July 2020, a Chinese shipping agent contacted Global Link Logistics, a freight forwarder, to facilitate the importation of a consignment (ID: ANDYJMM-MEL).  The details provided included the following name, phone number, email address, and delivery address: Minghui Chen, 0423 836 537, chenminghui996@gmail.com, 52 Mercedes Drive, Thomastown.

On 27 August 2020, Mr. Yang, a delivery driver, called the mobile number 0423 836 537. A man answered in Mandarin and confirmed the delivery address. Upon arrival, Mr. Yang met him and confirmed the details of the consignment.  He replied to him ‘Yes it’s right’. 

Between 18 June and 23 July 2020, customs broker Visa Global Logistics, was contacted by a person named ‘Jessy’ purporting to be from Gold Land Australia Pty Ltd.  On 18 August 2020, a person named ‘Suda’ contacted Visa Global stating that they were now the Gold Land Australia contact as ‘Jessy’ was in hospital. 

‘Suda’ asked Visa Global to clear consignment ID: 80724509, which was said to be ‘the same product as last time’. On 1 September 2020,Visa Global advised either ‘Jessy’ or ‘Suda’ that there were outstanding freight charges of $1,950 on this importation. On 2 September 2020, he attended a bank and deposited $1950 into Visa Global’s bank account. He took a photo of the deposit slip.

On 4 September 2020, he was arrested by ABF. He said that he had never imported any tobacco. He was released without charge.  On 9 March 2021, a shipping agent in China contacted customs broker ‘Across the Ocean Shipping’ to process a consignment (ID: HJ17MEL10253). The details of the consignee were: ‘Jayson’ at 2 Muriel Court, Reservoir, 0451 712 868, 1992860780@qq.com – 542332202@qq.com. ABF examined the import and found it contained 24 punching bags filled with tobacco. 

ABF executed a search warrant at 3 Muriel Court. During the course of the search being conducted,he was observed fleeing into a nearby yard by climbing over a fence and running down the street. He was apprehended and arrested. The entirety of his offending involved importing 3,413 kilograms of tobacco and 388,400 cigarettes. The total revenue evaded was $5,470,155.

Issue:

Whether or not the offending called for a sentence consisting of a head sentence and a non-parole period.

Applicable law:

Customs Act 1901 (Cth) - prohibits importing tobacco products with the intention of defrauding the revenue.

Barakat v DPP (Cth) [2020] VSCA 185 - held that because of the financial rewards that can be associated with the offending of this kind (where the goods are subject to relatively high taxes and duty), the difficulty of detection and the erroneous view that offending of this kind is lower level order criminality or ‘victimless’, it is necessary to place emphasis on general deterrence. 

Tran v The Queen [2021] VSCA 292 - provides that illicit importations undermine that regulation and prevent inspection of the tobacco for potentially harmful contaminants.

Analysis:

While he has pleaded guilty to a single charge, it is a rolled-up charge involving four discrete importations of tobacco over an extended period between July 2020 and March 2021. The amount of revenue defrauded was significant, some $5.47 million.

The scale of the enterprise was substantial, involving 3,413 kilograms of tobacco and 388,400 cigarettes imported in four consignments from China. The loss to the revenue has not been repaid.

The tobacco and cigarettes were concealed within legitimate goods and accompanied by apparently legitimate documentation. The offending involved use of false names, multiple telephones, and delivery addresses. He had an opportunity to walk away from the offending having received a seizure notice in respect of the Chen importation. Despite that clear warning, he persisted with a third; the Suda importation. 

Following the Suda importation, he was arrested and interviewed. He was released without charge. Even his apprehension and police interview did not deter him one bit. He continued his offending with yet another, the fourth importation. 

He was involved in each of the importations, collecting or attempting to take possession of each importation. The fact that he continued offending despite being on notice, makes it plain that he knew the importations were profitable and worth taking the risk.

Conclusion:

The Court ordered 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months imprisonment.