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Sentencing for Importation Offences other than Drug Importation Offences

1. Categories of Non-Drug Importation Offences

In contrast to other types of federal offences which are generally contained in the Criminal Code (Cth), 1 importation offences include a number of distinct categories of offences and the corresponding provisions are found in several federal acts.

These acts include: the Customs Act 1901 (Cth), the Biosecurity Act 2015 (Cth), the Environment Protection and Biodiversity Conservation Act 1999 (Cth), and the Migration Act 1958 (Cth).

In turn, when sentencing offenders for importation offences, courts have applied different sentencing considerations depending on the specific nature of the relevant offence. This page analyses non-drug importation offences by reference to the following three categories:

  • General Importation Offences
  • Animal and Plant Smuggling Offences
  • People Smuggling Offences

This page does not analyse sentencing principles relevant to drug importation offences. For discussion of drug importation offences see: Sentencing Serious Drug Offenders.

This page does not provide an exhaustive commentary on all non-drug importation offences, rather, it focuses on the more commonly prosecuted offences.

1.1 General importation offences

The Customs Act 1901 (Cth) contains general importation offences, criminalising smuggling, the importation or exportation of particular goods or the possession of smuggled goods. 2

Smuggling is defined in s 4 of the Customs Act 1901 (Cth) as:

any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue. [Emphasis added].

The maximum penalties for those offences are outlined in the table below.

Categories of importation offences: Customs Act 1901 key offence provisions

Part XIII – Penal Provisions Division 2—Penalties

Section

Offence

Max penalty 3

233

Smuggling and unlawful importation and exportation 

Varies

233A

Master not to use or allow use of ship for smuggling etc. 

Varies

233BAA

Special offence relating to tier 1 goods 

5 years’ imprisonment or 1,000 penalty units or both

233BAB

Special offence relating to tier 2 goods

10 years’ imprisonment or 2,500 penalty units or both

233BABAD

Offences involving tobacco products

10 years’ imprisonment or 5 times the amount of duty that would have been payable on the goods (if calculable) or 1,000 penalty units or both.

1.1.1 General offence provisions

The maximum penalties for offences under sections 233 and 233A of the Customs Act 1901 (Cth) vary based on the value of the goods imported and the value of any duty evaded (where a court can calculate those amounts). This is discussed in more detail below: see 1.1.2 Maximum penalties for offences against sections 233 and 233A.

The general offence provision contained in section 233 of the Customs Act 1901 (Cth) relevantly states:

Section 233

Smuggling and unlawful importation and exportation

(1)  A person shall not:

  • (a)  smuggle any goods; or
  • (b)  import any prohibited imports; or
  • (c)  export any prohibited exports; or
  • (d)  unlawfully convey or have in his or her possession any smuggled goods or prohibited imports or prohibited exports.

(1AA)  A person who contravenes subsection (1) commits an offence punishable upon conviction:

  • (a)  in the case of an offence against paragraph (1)(a) or an offence against paragraph (1)(d) in relation to smuggled goods–as provided by subsection 233AB(1); or
  • (b)  in any other case–as provided by subsection 233AB(2).

(1AB)  Subsection (1AA) is an offence of strict liability, to the extent that it relates to paragraphs (1)(b), (c) and (d).     

Sections 233 and 233A of the Customs Act 1901 (Cth) do not apply to any goods containing narcotic goods. 4

In addition to offences for smuggling, section 233 creates offences in relation to the import or export of “prohibited” goods. Goods can be prohibited as imports by regulation under section 50 and as exports under section 112 of the Customs Act 1901 (Cth). The Regulations can also prescribe particular conditions which importers/exporters must comply with for the goods to be permitted goods for the purpose of the Customs Act 1901 (Cth): see generally s 270 of the Customs Act 1901 (Cth).

Lists of prohibited goods are contained in the Customs (Prohibited Imports) Regulation 1956 (Cth), the Customs (Prohibited Exports) Regulations 1958 (Cth) and the Customs Regulation 2015 (Cth). A searchable list of prohibited goods is also available on the Australian Border Force website. 5

1.1.2 Maximum penalties for offences against sections 233 and 233A

The maximum penalties for offences under sections 233 and 233A of the Customs Act 1901 (Cth) vary based on the value of the goods imported and the value of any duty evaded: s 233AB. 6

For offences under sections 233 and 233A of the Customs Act 1901 (Cth), the maximum penalties are contained in section 233AB and vary based on the particular conduct that the offence relates to. The maximum penalties for the offences are calculated as follows:

Maximum Penalties for offences against ss 233 and 233A of the Customs Act 1901

Offence Provision

Max Penalty Provision

Max Penalty

Section 233(a) or (d)

233AB(1)

5 times the amount of the avoided duty or, if that amount is not calculable, 1,000 penalty units

Section 233(b) or (c)

233AB(2)

3 times the value of the goods or 1,000 penalty units (whichever is greater)

Section 233A where the conduct relates to the smuggling of goods

233AB(1)

5 times the amount of the avoided duty or, if that amount is not calculable, 1,000 penalty units

Section 233A for conduct that does not relate to the smuggling of goods

233AB(2)

3 times the value of the goods or 1,000 penalty units (whichever is greater)

Section 233AB relevantly states:

Section 233AB

Penalties for offences against sections 233 and 233A

(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 smuggled goods to which the offence relates if those goods had been entered for home consumption on:
    • (i)  where the date on which the offence was committed is known to the Court–that date; or
    • (ii)  where that date is not known to the Court–the date on which the prosecution for the offence was instituted;
  •  a penalty not exceeding 5 times the amount of that duty; or
  • (b)  where the Court cannot determine the amount of that duty, a penalty not exceeding 1,000 penalty units.

(2)  Where an offence is punishable as provided by this subsection, the penalty applicable to the offence is:

  • (a)  where the Court can determine the value of the goods to which the offence relates, a penalty not exceeding:
    • (i)  3 times the value of those goods; or
    • (ii)  1,000 penalty units;
  • whichever is the greater; or
  • (b)  where the Court cannot determine the value of those goods–a penalty not exceeding 1,000 penalty units.

Where a prosecution is commenced by the Comptroller-General of Customs in a County or District Court, any pecuniary penalty greater than 400 penalty units is taken to be abandoned: see s 245(2). Where a prosecution is commenced in a court of summary jurisdiction, any pecuniary penalty greater than 200 penalty units is taken to be abandoned: see s 245(3).

1.1.3 Special offence provisions relating to Tier 1 and Tier 2 goods and tobacco products

In contrast to the general offence provisions, sections 233BAA, 233BAB and 233BABAD of the Customs Act 1901 (Cth) attract higher maximum penalties, including potential sentences of imprisonment for “Tier 1” and “Tier 2” goods and tobacco products. These increased penalties reflect the additional seriousness with which the Commonwealth views these offences.

Tier 1 goods include specified performance-enhancing drugs, non-narcotic drugs and other goods 7 contained in the regulations: s 233BAA(1). Tier 2 goods include specified firearms, knives and daggers, radioactive material and child abuse material: s 233BAB(1). A full list of Tier 1 and Tier 2 goods is contained in sch 7 to the Customs Regulation 2015 (Cth).

There are separate offence provisions in the Criminal Code (Cth) that relate to the importation of border controlled drugs and border controlled precursors. 8

1.2 Animal and plant importation offences

In addition to the general importation offences contained in the Customs Act 1901 (Cth), specific offences relating to the importation/exportation of animal and plant specimens are contained in the Biosecurity Act 2015 (Cth) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

These offences recognise the public interest in the protection of Australia’s native flora and fauna. For example, the Explanatory Memorandum for the Biosecurity Bill 2014 (Cth) stated that the purpose of the Bill is to:

… [P]rovide the primary legislative means and a modern regulatory framework for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

Similar statements were made in the Explanatory Memorandum to the EPBC Act. The EPBC Act was subject to a review conducted by Graeme Samuel, with the final report provided to the Federal Government in October 2020 and publicly released in January 2021. The Government’s response to the Report was released in June 2021, however legislation to enact the accepted recommendations has not been passed at the date of publication. The review did not recommend increased penalties or wider-ranging penalty provisions be enacted, but did recommend a greater degree of enforcement of the EPBC Act. 9

1.2.1 Biosecurity Act offences

The Biosecurity Act 2015 (Cth) came into force on 16 June 2016, replacing the Quarantine Act 1908 (Cth). In addition to modernising the enforcement provisions, the Biosecurity Act 2015 (Cth) contains increased maximum penalties for the equivalent offence provisions under the older act.

For example, the maximum penalty available under section 70C(3) of the Quarantine Act 1908 (Cth) (importing goods into Australia in contravention of the Quarantine Act) was 2 years’ imprisonment, compared to the 5 year maximum penalty (10 years for an aggravated offence) available for the equivalent provision in the Biosecurity Act 2015 (Cth).

Care should be taken when considering the relevance of sentencing decisions for offences under the Quarantine Act 1908 (Cth) when sentencing offenders for offences under the Biosecurity Act 2015 (Cth).

The maximum penalties for importation offences under the Biosecurity Act 2015 (Cth) are contained in the below table:

Categories of importation offences: Biosecurity Act 2015 key offence provisions

Section

Offence

Max penalty

185

Bringing or importing prohibited or suspended goods into Australian territory 

5 years’ imprisonment or 1,000 penalty units or both

186

Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory

5 years’ imprisonment or 1,000 penalty units or both

187

Contravening conditions of a permit 

5 years’ imprisonment or 1,000 penalty units or both

188

Receiving or possessing prohibited or suspended goods brought or imported into Australian territory 

60 penalty units

636

Offence–hindering compliance with the Act etc. 

2 years’ imprisonment or 120 penalty units or both

In addition to any applicable penalty or sentence of imprisonment, any prohibited goods (or equivalent) may be forfeited to the Commonwealth: s 628 of the Biosecurity Act 2015 (Cth). Offenders may also face civil penalty proceedings, with most offences having an equivalent civil penalty provision. 10

Similar to importation offences contained in the Customs Act 1901 (Cth), determinations can be made jointly by the Director of Biosecurity and the Director of Human Biosecurity that goods are prohibited goods: s 173; or conditionally non-prohibited goods: s 174 of the Biosecurity Act 2015 (Cth). There are currently five Biosecurity Goods Determinations which are listed below:

The determinations can also be accessed through a Department of Agriculture webpage, where fact sheets relating to specific products listed in the determinations are also available.

1.2.2.1 Maximum penalties for aggravating offences against sections 185 and 186

Offences against sections 185 and 186 of the Biosecurity Act 2015 (Cth) attract a higher maximum penalty where an aggravating fault-based circumstance is present. These higher maximum penalties are outlined in the below table:

Categories of importation offences: Biosecurity Act 2015 aggravating offence provisions

Section

Offence

Max penalty

185(4)

Bringing or importing prohibited or suspended goods into Australian territory with fault-based circumstance of obtaining commercial advantage 11

10 years’ imprisonment or 5,000 penalty units or both

185(5)

Bringing or importing prohibited or suspended goods into Australian territory with fault-based circumstance involving harm to the environment or economic consequences

10 years’ imprisonment or 2,000 penalty units or both

186(4)

Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory with fault-based circumstance of obtaining commercial advantage 12

10 years’ imprisonment or 5,000 penalty units or both

186(5)

Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory with fault-based circumstance involving harm to the environment or economic consequences

10 years’ imprisonment or 2,000 penalty units or both

1.2.2 EPBC Act offences

The EPBC Act contains offence provisions relating to the importation or exportation of animal and plant specimens. These offences form part of Australia’s domestic implementation of international treaties concerning the trade of endangered species, notably the Convention on International Trade in Endangered Species of Wild Fauna and Flora 13 (CITES) and the Convention on Biological Diversity. 14

Similar to the legislative schemes analysed above in relation to lists of goods for offences contained in the Customs Act 1901 (Cth), the Minister must by legislative instrument establish a list of CITES species, 15 a list of exempt native specimens, 16 and a list of specimens suitable for live import. 17 The relevant legislative instruments are set out below:

These lists are also accessible on a Department of Agriculture, Water and the Environment webpage, which also contains additional information regarding the application of the lists.

Categories of importation offences: EPBC Act key offence provisions

Section

Offence

Max penalty

303CC

Exports of CITES specimens

10 years’ imprisonment or 1,000 penalty units or both

303CD

Imports of CITES specimens 

10 years’ imprisonment or 1,000 penalty units or both

303DD

Exports of regulated native specimens

10 years’ imprisonment or 1,000 penalty units or both

303EK

Imports of regulated live specimens

10 years’ imprisonment or 1,000 penalty units or both

303GP

Cruelty–export or import of animals

2 years’ imprisonment

303GQ

Imports of specimens contrary to the laws of a foreign country

5 years’ imprisonment

Where an offence is committed under sections 303CC, 303CD, 303DD or 303EK of the EPBC Act and a live animal is subjected to cruel treatment during the conduct of the offence then a further prosecution may be brought under section 303GP. Section 303GP provides:

Section 303GP

Cruelty–export or import of animals

(1)  A person commits an offence if:

  • (a)  the person exports or imports a live animal in a manner that subjects the animal to cruel treatment; and
  • (b)  the person knows that, or is reckless as to whether, the export or import subjects the animal to cruel treatment; and
  • (c)  the animal is a CITES specimen; and
  • (d)  the person contravenes section 303CC or 303CD in relation to the export or import of the animal.

Penalty:  Imprisonment for 2 years.

(2)  A person commits an offence if:

  • (a)  the person exports a live animal in a manner that subjects the animal to cruel treatment; and
  • (b)  the person knows that, or is reckless as to whether, the export subjects the animal to cruel treatment; and
  • (c)  the animal is a regulated native specimen; and
  • (d)  the person contravenes section 303DD in relation to the export of the animal.

Penalty:  Imprisonment for 2 years.

(3)  A person commits an offence if:

  • (a)  the person imports a live animal in a manner that subjects the animal to cruel treatment; and
  • (b)  the person knows that, or is reckless as to whether, the import subjects the animal to cruel treatment; and
  • (c)  the animal is a regulated live specimen; and
  • (d)  the person contravenes section 303EK in relation to the import of the animal.

Penalty:  Imprisonment for 2 years.

1.2.2.1 Extraterritorial application

While the EPBC Act importation/exportation offences relate to the transportation of specimens into or out of Australian territory, section 303GQ creates an offence relating to overseas conduct. Section 303GQ states:

Section 303GQ

Imports of specimens contrary to the laws of a foreign country

(1)  A person must not intentionally import a specimen if the person knows that:

  • (a)  the specimen was exported from a foreign country; and
  • (b)  at the time the specimen was exported, the export of the specimen was prohibited by a law of the foreign country that corresponds to this Part.

If, however, the foreign country is a signatory to CITES 18 and their relevant regulatory body has not requested an investigation of the offence or assistance in relation to investigating a class of offences to which the offence relates, then a prosecution may not be instituted in Australia: s 303GQ(2).

1.3 People smuggling offences

In addition to the categories of importation offences discussed above, the Migration Act 1958 (Cth) creates various people smuggling offences. In addition to maximum penalties, several people smuggling offences have statutory minimum penalties (where certain conditions are met): see s 236B. The application of the statutory minimum penalties is discussion below: see 5.1 Statutory minimum sentences. The maximum and minimum penalties 19 are set out in the table below:

Categories of importation offences: Migration Act 1958 (Cth) key offence provisions

Section

Offence

Max penalty

Min Penalty

233A

Offence of people smuggling 

10 years’ imprisonment or 1,000 penalty units or both

n/a

233B

Aggravated offence of people smuggling (danger of death or serious harm etc.) 

20 years’ imprisonment or 2,000 penalty units or both

8 years’ imprisonment

233C

Aggravated offence of people smuggling (at least 5 people) 

20 years’ imprisonment or 2,000 penalty units or both

5 years’ imprisonment

233D

Supporting the offence of people smuggling 

10 years’ imprisonment or 1,000 penalty units or both

n/a

233E

Concealing and harbouring non-citizens etc. 

10 years’ imprisonment or 1,000 penalty units or both

n/a

234

False documents and false or misleading information etc. relating to non-citizens 

10 years’ imprisonment or 1,000 penalty units or both

n/a

234A

Aggravated offence of false documents and false or misleading information etc. relating to non-citizens (at least 5 people) 

20 years’ imprisonment or 2,000 penalty units or both

5 years’ imprisonment

236

Offences relating to visas 

10 years’ imprisonment or 1,000 penalty units or both

n/a

An offence against section 233D (supporting the offence of people smuggling) can be committed even where no people smuggling offence is committed: s 233D(3) of the Migration Act 1958 (Cth).

Further offences apply to individuals in control of vessels who carry non-citizens into Australia without documentation: s 229 or carry concealed persons into Australia: s 230 of the Migration Act 1958 (Cth).  

1.3.1 Extraterritorial application

The people smuggling offences contained in the above table are all contained in Division 12 Subdivision A of the Migration Act 1958 (Cth). Offence provisions contained in Division 12 apply both inside and outside of Australian territory: s 228A of the Migration Act 1958 (Cth).

2. General Sentencing Principles for Importation Offences

In R v Zhang [2017] SASCFC 5, the South Australian Court of Criminal Appeal accepted that the following eight factors were relevant sentencing considerations in relation to tobacco smuggling offences. Chivell AJ (with whom Kourakis CJ and Vanstone J agreed) stated at [37]–[38]:

Counsel submitted that factors to be taken into account in sentencing for serious revenue offences such as these, should include:

  • the role of the offender – in particular, it is important to identify whether the defendant was a principal organiser of the criminal operation or merely acting on the instructions of others;
  • the sophistication of the offending, or lack thereof;
  • the period over which the offences were committed;
  • the quantity of the tobacco imported and/or possessed and the amount of duty defrauded or evaded;
  • whether the loss of revenue has been repaid;
  • whether the offending involved other illegalities, such as the use of false identities;
  • whether the defendant was involved in distribution and sale of tobacco products within Australia;
  • the extent to which the defendant gained financially from his or her offending.

I agree that these factors should be taken into account when sentencing for an offence against s 233BABAD of the Customs Act. 20

Similar considerations have been held to be relevant when sentencing offenders for general smuggling offences under the Customs Act 1901 (Cth) 21 and for importation offences under the EPBC Act. For example, in Henri Robert Morgan v The Queen [2007] NSWCCA 8, a case involving an appeal against a sentence for offences including attempting to export regulated native specimens (namely native birds’ eggs) without a permit contrary to section 303DD(1) of the EPBC Act, Buddin J (with whom Beazley J and Hislop J agreed) stated at [12]:

The objective gravity of a particular instance of this kind of offence will depend upon an assessment of a number of factors. Apart from the factors identified in s 16A of the Crimes Act (C’th), the following list of matters, which is not intended to be exhaustive, may inform the sentencing exercise:

(a) the nature and extent of the offender’s role;

(b) the offender’s motivation for committing the offence;

(c) the level of sophistication of the enterprise in which the offender was involved;

(d) whether the offender’s conduct revealed any particular aggravating features such as undue cruelty;

(e) the number, value and/or rarity of the specimens involved;

(f) the actual harm and/or potential harm occasioned to the particular specimens;

(g) the actual and/or potential harm or damage occasioned to the environment including, for example, the spread of disease. 22

2.1 Role of the offender

The role of the offender is of central relevance when sentencing offenders for importation offences: R v Zhang [2017] SASCFC 5, [37].

In assessing the role of an offender, courts have considered factors such as the amount of money an offender would receive following the importation, the length of their involvement and the specific tasks they undertook to enable the importation/exportation to occur. For example, in R v Saleh [2015] NSWCCA 299 Beech-Jones J stated at [4]:

A further and perhaps critical factor is the role of Mr Saleh. He was charged as an aider or abettor. Both the indictment and the agreed statement of facts limited the period of his involvement to 12 days between 15 March 2013 and 27 March 2013. Further, while there is reason to be doubtful of his assertion that he was only to receive $3,000 for his participation in the offence, there is no reason to conclude that he was likely to realise anything like the amount of tax that was sought to be avoided by the importation. Nevertheless, as the judgment of Hulme AJ demonstrates, even though he was not the principal behind the importation, his level of involvement was not minimal but reasonably significant. Mr Saleh committed a reasonably serious instance of an offence under s 233BABAD(1).

Similar statements have been made in relation to people smuggling offences under the Migration Act 1958 (Cth), where courts have considered the role an offender plays within a people smuggling operation when assessing the seriousness of the offence. For example, in Bahar v The Queen [2011] WASCA 249, McLure P (Martin CJ and Mazza J agreeing) stated at [64]:

None of the appellants had any involvement in the organisation of the people smuggling enterprise. The roles they played put them at the very bottom level of the hierarchy of culpability. Although the tasks they performed may be regarded as necessary … they would appear to have been targeted by organisers because they were both financially vulnerable and dispensable. There is no finding that any of the appellants understood the serious consequences that awaited them on their arrival in Australia. … it was open to the sentencing judge to regard the appellants’ offending as being within the least serious category … 23

In assessing an offender’s role, attention must be paid to what the offender did within the criminal enterprise and what offence they have been charged with, not merely how their role has been described. This was discussed by the High Court in R v Olbrich [1999] HCA 54. The case concerned the importation of heroin into Australia. The offenders were charged under various provisions of the Customs Act 1901 (Cth). 24 Gleeson CJ, Gaudron, Hayne and Callinan JJ stated at [19]-[20]:

Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs … is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act 1901. … If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between “couriers” and “principals” may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.

There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. …

[Emphasis added] 25

2.1.1 Parity between co-offenders

An offender’s role is also relevant when assessing parity between co-offenders: R v Saleh [2015] NSWCCA 299, at [51]–[52] per Hulme AJ (Johnson J agreeing). 26

In Assi v The Queen; Jomaa v The Queen [2021] NSWCCA 181, the NSW Court of Appeal considered the issue of parity between multiple offenders sentenced for tobacco smuggling offences. Beech-Jones J (with whom Meagher JA and Garling J agreed) said at [30]–[31]:

The sole ground of Assi’s appeal is that a “legitimate sense of grievance arises on the part of the applicant given the sentence imposed upon Mohammed Jomaa”. …

The parity principle holds that there should not be a “marked disparity” between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance” … The application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences or, as in this case, are sentenced for the same offence but have different offences included in a document prepared under s 16BA. Instead, the application of the principle is governed “by considerations of substance rather than form” … In DS v R [2014] NSWCCA 267 at [39] (“DS”) the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender’s subjective circumstances. …

[Emphasis added]

2.2 Sophistication of offending

The sophistication of the offending conduct is relevant in assessing the objective seriousness of the offence. Where an offender engages in sophisticated offending, including actively taking steps to avoid detection, the seriousness of the offence will be increased. In Nguyen v Comptroller-General of Customs [2018] WASCA 170, the Court (Mazza and Mitchell JJA and Hall J) relevantly stated at [35]–[36]:

In the present case, the appellant engaged in a series of importations which involved a degree of planning. He planned to sell the large number of imported ice pipes at a significant profit. … although he used his own name and address on the consignments, he took steps to avoid detection by Customs. …

…He had discussions with his suppliers as to steps to disguise the importation to avoid detection by Customs officers. Senior counsel for the appellant was right to concede the serious nature of the offending in these circumstances.

In assessing the sophistication of the offending conduct, attention is to be directed to the offender’s conduct, and not that of their co-offenders. For example, in Barakat v DPP (Cth) [2020] VSCA 185, a case concerning two co-offenders’ appeals against sentences imposed for tobacco smuggling offences, Niall JA (with whom Priest and T Forrest JJA agreed) stated at [71]-[72]:

DB’s role did not itself require any sophistication or planning, was of limited duration and gained very modest reward. It was done at the direction of his brother. Although the judge correctly classified his offending as falling within the lower end of criminality, in assessing the sophistication of the offending, the judge said, in terms that did not distinguish between the applicants, that ‘this was a sophisticated scheme designed to take advantage of a vulnerability in the scheme since closed’. In my view, it is not correct to describe DB’s offending as sophisticated, or as involving any premeditation or planning on his part. Moreover, his paltry return, which the judge referred to as ‘pathetically small’ also points up the relatively minor role played by DB.

I consider that the actual role of DB, in the context of a relevantly unblemished record and excellent prospects of rehabilitation, was not properly reflected in the sentence.

2.3 Period of time over which offending occurred

Although the period of time over which the offending occurred is a relevant consideration when assessing objective seriousness, courts have indicated that even where the offending takes place over a relatively brief period of time, offending can still be categorised as serious. For example, in R v Saleh [2015] NSWCCA 299, the sentencing judge had described the offending under s 233BABAD(1) of the Customs Act 1901 (Cth) as being of “low, rather than moderate seriousness”. RS Hulme AJ (Johnson J agreeing, Beech-Jones J agreeing that the appeal should be allowed but proposing a different sentence) stated at [24], [26]:

… Her Honour erred. Certainly her Honour found that the Respondent was not a principal in the importation, that the evidence disclosed not more than the carrying out of a limited role over a period of only 12 days and that giving United Cargo his own email address and phone number suggests that the Respondent did not know at that stage what the container held. On the other hand, as her Honour observed, “By his plea he has admitted the requisite intention during the period of his involvement”.

… the Respondent’s activities were by no means insubstantial and, combined with the amount of duty sought to be evaded, almost $1M, meant that his offence could not reasonably be regarded as of low seriousness.

2.4 Quantity or amount of imported good

The quantity of the product imported is a relevant consideration, especially in cases concerning the importation of drug pre-cursors (substances that can be used to manufacture illicit drugs). 27 For example, in Nguyen v The Queen [2016] NSWCCA 5, Bellew J (with whom Gleeson JA and Rothman J agreed) stated at [61]:

The amount of pseudoephedrine which was imported by the applicant was, on any view, significant. I accept that weight is not determinative, be it of the sentence itself or the range into which it should fall … However, it is clearly a factor which is relevant on sentence … Further, although Wong and Nguyen were cases concerning the importation of narcotics there is, in my view, no distinction to be drawn (in terms of the relevance, on sentence, of weight) between a case involving the importation of narcotics and a case involving the importation of Tier 1 goods. This is particularly so in circumstances where the Tier 1 goods are several kilograms of pseudoephedrine, a substance which, as a matter of common knowledge, can be used as a precursor to the manufacture of illicit substances.

[Emphasis added; citations omitted] 28

In Nguyen v The Queen [2016] NSWCCA 5, the NSW Court of Appeal went on to consider that where an offender is aware of the quantity of the relevant imported good, the significance of this factor is further increased. Relevantly, Bellew J stated at [62]:

Weight has added significance for the purposes of sentence where an offender is aware of it … Senior counsel for the applicant, whilst accepting that weight was a relevant consideration, submitted that there was no evidence that the applicant was aware of the weight of the pseudoephedrine she had imported. However as I have noted in [8] above, the sentencing judge found the applicant had indicated to Customs officers that she had packed her bags herself. There is no challenge to that finding. Even if the applicant was not aware of the precise amount of pseudoephedrine she was importing, I am satisfied that she must have been aware that it was substantial. Her role as the importer was performed with that knowledge. [Emphasis added; citations omitted].

Quantity is also a relevant consideration for other importation offences. For example, when discussing the sentence imposed by the sentencing judge for tobacco importation offences in R v Saleh [2015] NSWCCA 299, Beech-Jones J stated at [3]:

I agree that the sentencing judge’s description of Mr Saleh’s conduct as being of a “low, rather than moderate seriousness” for an offence under s 233BABAD(1) of the Customs Act 1901 (Cth) was not open to her Honour … One factor affecting any characterisation of an offender’s conduct is the amount of tax that was the object of the defrauding. In this case the amount involved, $996,997.50, was very large. Another is the scale of the enterprise in which Mr Saleh was involved. Bearing in mind the amount of tobacco and the logistics of the importation, the scale was substantial.

Similar remarks were made in Commissioner of Taxation v Cocaj [2004] QCA 69 which was concerned with offences under the Excise Act 1901 (Cth), and DPP (Cth) v Gregory [2011] VSCA 145, which concerned tax fraud offences. Both cases were applied in R v Saleh [2015] NSWCCA 299, where the Court found that the amount of duty/tax evaded is a relevant consideration when assessing the seriousness of offending: at [39]–[41].

2.5 Financial gain

Courts have emphasised that where importation offences are committed for financial gain, the seriousness of the offending and need for general deterrence is increased. In DPP (Cth) v Haidari [2013] VSCA 149, in an appeal against a sentence imposed for people smuggling offences, Harper JA (Weinberg and Priest JJA agreeing) stated at [20]:

What is beyond argument is that high-level people smugglers who take large sums of money from clients who can ill afford to pay, and in return subject the payees and their families to perilous journeys with an inadequacy of almost everything needed for food, safety and comfort, deserve severe punishment. Parliament is clearly of that opinion, and minimum sentences are a reflection of it. So too is the proposition that specific and general deterrence is in these cases an important sentencing consideration.

In R v Zhang [2017] SASCFC 5, involving tobacco smuggling offences, Chivell AJ (with whom Kourakis CJ and Vanstone J agreed) stated at [117]:

Mr Zhang derived very substantial profits from his crimes. His actions were motivated by greed. It is not suggested that he was in difficult financial circumstances. He had the option of a professional career in Australia had he pursued his studies. None of the cases put forward for comparison demonstrated the same level of criminality – in each case the offender’s role was more limited and the crimes were instigated by others. 29.

2.6 Harm to Australian community

Importation offences have been consistently held by courts not to be victimless crimes, with the harm generally categorised as a broad harm to the whole of the Australian community. For example, in Barakat v DPP (Cth) [2020] VSCA 185, which concerned tobacco smuggling offences, Niall JA (Priest JA and T Forrest JA agreeing) stated at [53]–[54]:

…  The maximum penalty of 10 years’ imprisonment reveals the seriousness with which the legislature views offending of this kind and is calculated to provide a strong deterrent to those connected with the illegal smuggling of tobacco, whether by its importation or possession.  … s 233BABAD, for sentencing purposes, is similar to other offences involving defrauding the revenue, such as taxation and like offences.  Offences against the revenue are not victimless crimes.  They undermine the integrity of the taxation system and the ability of governments to raise revenue in a fair and accountable manner.

Because of the financial rewards that can be associated with 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.  …

[Emphasis added; citations omitted]

In addition to the general harm suffered to the community, courts have also considered the harm from the consumption of the imported product which, through its unauthorised importation, may escape regulatory tools used to deter use of that product in Australia.

For example, courts have expressly considered how imported products may circumvent legislation such as the Tobacco Plain Packaging Act 2011 (Cth) by being packaged overseas. In R v Zhang [2017] SASCFC 5, Chivell AJ (Kourakis CJ and Vanstone J agreeing) referred with approval to a submission advanced by counsel to this effect and stated at [32]–[33]:

Section 233BABAD of the Customs Act 1901 was enacted in 2012 in the Customs Amendment (Smuggle Tobacco) Act 2012. The Second Reading speech shows that the increase in penalties provided for in the legislation was part of a package of measures. Another measure was the introduction of plain packaging legislation. The legislation had, as one of its aims, the reduction of smoking in the community.

Prosecuting counsel referred the judge to the Tobacco Plain Packaging Act 2011 (Cth). … Counsel made the following submission:

Smuggling of tobacco into Australia is a very prevalent offence which is difficult to detect, and which creates significant enforcement and investigation costs for the Commonwealth of Australia, and consequently taxpayers. Smuggled tobacco creates a risk for the success of legislative health measures in place in Australia intended to mitigate the harmful effects of smoking on the health of Australians, both because of the cheap tobacco made available to the community, and because the tobacco imported has not been subjected to any testing or quality control.

[Emphasis added; citations omitted]

When assessing the harm to the Australian community, courts have also considered the intended use of the imported goods and any specific knowledge the offender has about the harm that will result from its use. For example, in Nguyen v Comptroller-General of Customs [2018] WASCA 170, the Court considered the intended use of the imported products in that case (ice pipes) and the harm caused by such products in leading to increased drug use and drug addiction within the Australian community. The Court (Mazza and Mitchell JJA and Hall J) stated at [35]–[36]:

Significant harm to the Australian community would follow from the consumption of methylamphetamine which the ice pipes were designed and intended to facilitate.

It is also relevant to note that the appellant was a registered pharmacist who must have appreciated the damaging effects of methylamphetamine and the manner of its use in the community. The appellant made a conscious decision to engage in a course of conduct by which he sought to profit from the sale of items which would facilitate the use of methylamphetamine. … Senior counsel for the appellant was right to concede the serious nature of the offending in these circumstances.

[Emphasis added]

Similarly, when assessing the potential harm to the Australian community in relation to animal and plant importation offences, courts have considered the particular biosecurity risks posed by the importation. For example, in R v Kennedy [2019] NSWCCA 242, Payne JA and Fullerton J (Adamson J agreeing) analysed the potential impact of the importation of each of the specimens individually, and, in relation to one of the imported specimens (soft-shelled turtles), stated at [86]:

(2) Secondly, the importation offences in this case had potentially catastrophic consequences for the Australian ecosystem:

(a) The soft-shelled turtles, the subject of the importation offence committed in October 2016, presented an inherent risk to Australian fish populations and other aquatic creatures. In 2013 the Philippines Department of Environment and Natural Resources launched an investigation into the turtles which were then threatening Central Luzon’s local fish populations and other aquatic animals. The turtles could also introduce new pathogens into Australia. The US Fish and Wildlife Service lists a range of diseases associated with these turtles. Australian native turtle species in parts of Australia have in the past faced threats of extinction from introduced viruses. Any diseases introduced by these turtles to Australia pose a risk of very serious ecological impacts; 30

2.7 Importance of general deterrence and specific deterrence

When sentencing offenders for importation offences, courts have emphasised the importance of general deterrence and specific deterrence, due to the difficulty in detecting offenders and the need to reduce the incidence of this type of offending. In Nguyen v Comptroller-General of Customs [2018] WASCA 170, the Court (Mazza and Mitchel JJA and Hall J) stated at [35]:

… The appellant knew that the ice pipes were prohibited imports used for consuming methylamphetamine, and, although he used his own name and address on the consignments, he took steps to avoid detection by Customs. Significant harm to the Australian community would follow from the consumption of methylamphetamine which the ice pipes were designed and intended to facilitate. General and personal deterrence were sentencing considerations to which significant weight was appropriately given.

Similar statements have been made in relation to offences under the EPBC Act. For example, in R v Kennedy [2019] NSWCCA 242, Payne JA and Fullerton J stated at [85]:

… General deterrence, denunciation and the protection of the community are critical principles of sentencing relevant to cases under the EPBC Act involving threats to Australian fish, fauna and biodiversity. Offending which threatens native species and Australia’s biodiversity warrants stern punishment. The imposition of a 3 year ICO in this case does not adequately reflect the nature and circumstances of the offending, including the maximum penalties for the importation, exportation and possession offences and the principles of general deterrence, specific deterrence, punishment and denunciation. 31

In R v Kennedy [2019] NSWCCA 242, Adamson J agreed with the reason and orders of Payne JA and Fullerton J, however made additional comments relating to the importance of general deterrence when assessing whether the Court’s residual discretion should be exercised. Adamson J stated at [101]:

On the question of the residual discretion, I consider general deterrence to be a highly significant factor in the present case. Were the residual discretion to be exercised, there would be a substantial risk that the community which the sentence for such offences is designed to influence would fail to appreciate the seriousness with which the Court regards the respondent’s offending. The nuances of the residual discretion, if it were exercised, would, in effect, deprive the present case of any real potency in terms of general deterrence. Thus, while the reasons of this Court would still have an educative effect on sentencing judges, they would have little practical effect in deterring those inclined to commit offences such as those committed by the respondent. …

[Emphasis added]

Courts have also considered the heightened need for specific and general deterrence, given the profit motive common to importation offences (including people smuggling offences). For example, in DPP (Cth) v Haidari [2013] VSCA 149, Harper JA (Weinberg and Priest JJA agreeing) stated at [20], [22]:

What is beyond argument is that high-level people smugglers who take large sums of money from clients who can ill afford to pay, and in return subject the payees and their families to perilous journeys with an inadequacy of almost everything needed for food, safety and comfort, deserve severe punishment. Parliament is clearly of that opinion, and minimum sentences are a reflection of it. So too is the proposition that specific and general deterrence is in these cases an important sentencing consideration.

Specific and general deterrence is, accordingly, a particularly significant sentencing factor. It is also necessary to take into account the fact that greed was a powerful motive. … 32

2.8 Offences committed by non-citizens

Where an offender is a non-citizen, sentencing courts have considered the additional hardship that offenders will face in prison due to the separation from their family members and language difficulties. These considerations have been applied when sentencing offenders for people smuggling offences. For example in R v Abbas [2019] WASCA 64, the Court (Buss P, Mazza and Beech JJA) stated at [35]:

The principal mitigating factors were … the hardship that will be experienced by the respondent in serving a long term of imprisonment in a foreign country away from his family and with only a basic grasp of the English language …

Depending on the jurisdiction, the potential deportation of the offender at the conclusion of their sentence may also be a relevant sentencing consideration.

See further: Hardship to the Offender and Deportation.

3. Matters Specific to Customs Act Offences

3.1 Objective seriousness and maximum penalty

When sentencing offenders for the general smuggling offences contained in the Customs Act 1901 (Cth) and in considering the significance of the relevant maximum penalty, courts have had regard to the range of conduct captured by the offence provisions. In particular, courts have emphasised the importance of assessing the seriousness of the importation offence based on the particular good imported. For example, in Gill v CEO of Customs [2009] WASC 222, Hall J stated at [24]–[25]:

Customs prosecutions brought in higher courts often relate to the evasion of duty, but they can also be brought, as here, to deal with the importation of items which are prohibited regardless of value. The fact that Customs prosecutions can relate to a vast range of conduct from large evasions of duty to small importations of prohibited substances such as chemicals or steroids is relevant in considering the significance of the maximum penalty.

The respondent submitted that to determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime. … However, in my view, it is important to bear in mind that the maximum penalty is not one that is confined to the importation of drugs or steroids like those involved here. The Customs (Prohibited Imports) Regulations 1956 (Cth) also list a range of other things which cannot be imported … including certain breeds of dog, human embryo clones, weapons, certain toys, items containing specific concentrations of lead or other metals, and some chemicals. In these circumstances, the maximum penalty cannot necessarily be understood as an indication of the seriousness with which the legislature views the importation of anabolic steroids in particular. Any assessment of the seriousness of these offences by reference to the maximum penalty needs to take into account the range of conduct that the offence encompasses.

[Emphasis added]

The range of offence provisions under the Customs Act 1901 (Cth) combined with the relatively low number of prosecutions, has led courts to find that tables of comparative decisions are usually of little assistance when assessing an appropriate penalty. For example, in Nguyen v Comptroller-General of Customs [2018] WASCA 170, which concerned importation offences relating to ice pipes, the Court (Mazza and Mitchel JJA and Hall J) stated at [34]:

There is no established range of sentences imposed in respect of offences of the current kind. The primary judge was correct to conclude that the cases referred to at [24]-[25] and [38]-[43] of the Primary Decision provide little guidance. The circumstances of many of those cases are entirely different from the present, so that they do not constitute useful comparators. Other references were to first instance decisions which, for present purposes, are not helpful comparators and for which, in any event, insufficient detail was provided as to the circumstances of the offence or the offender.

[Emphasis added; citations omitted] 33

3.2 Offences by current or former customs officials

Where an offender has abused a position of trust, or used confidential information gathered from their current or former employment as a customs officer, courts have considered the offending to be of a greater seriousness and emphasised the importance of deterrence as a sentencing consideration. This extends to current officers and former customs employees, where those officials use confidential information gained from their employment to assist in their offending. For example, in Merhi v The Queen [2019] NSWCCA 322, Cavanagh J (Macfarlan J and Harrison J agreeing) reviewed the authorities in relation to offending involving breaches of trust by current officers and held that similar considerations apply to former customs officers, Cavanagh J stated at [39]–[41]:

Whilst cases such as Standen and Suleman involve abuses of trust and authority whilst the offenders remained employed in their positions, I do not consider that those cases support the proposition that a misuse, after the employment relationship ceases, of knowledge and confidential information obtained in the course of employment could not similarly be considered an aggravating feature.

Further, the observations of Price J in R v Lamella [2014] NSWCCA 122 at [57] (“Lamella”) seem particularly relevant:

“57 In the present case, general deterrence is a matter of fundamental importance in determining an appropriate sentence. The maintenance of Australia’s border security is dependent upon the integrity of Customs officers who are the sentinels of the system. A Customs officer is in a position of authority and trust. Customs officers in the position of the respondent are entrusted with specialised knowledge of the detection and clearance processes of the Australian Customs and Border Protection Service. The abuse by a Customs officer of the trust reposed in him by misusing his knowledge to facilitate the importation into Australia of border-controlled precursors and prohibited drugs is a very serious crime, as is the bribery of a Customs officer. These offences undermine the very core of our Nation’s border protection and other Customs officers must be deterred from engaging in similar conduct.”

… The fact that the applicant only misused the confidential information and knowledge that she obtained whilst employed after ceasing employment does not preclude such misuse as a significant aggravating factor.

The Commonwealth has also recognised the potential threat posed by customs officers using confidential information to commit importation offences and has imposed reporting requirements on the Minister to ensure that Parliament is informed about any such offences. These requirements are contained in section 233(6) of the Customs Act 1901 (Cth) which relevantly states:

Section 233

Smuggling and unlawful importation and exportation

(6)  The Minister must lay before each House of the Parliament, not later than the first sitting day of that House after 1 October each year, a report about any conduct by officers of Customs that, apart from subsection 233BABA(1), would constitute an offence against a law of the Commonwealth or of a State or Territory relating to the possession or conveyance, or facilitation of the conveyance, of prohibited imports, prohibited exports or smuggled goods.

4. Matters specific to Biosecurity Offending

4.1 Impact to Australian biosphere and local industries

When sentencing offenders for animal and plant smuggling offences, courts have emphasised the importance of the offences in protecting Australia from biosecurity risks. This risk is reflected both in terms of the impact on the wider Australian community, but also the impact that these offences can have on specific local industries 34 that may be subject to significant harm if diseases are imported from overseas.

For example, in Soerensen v The Queen [2020] WASCA 114, which concerned an appeal against sentence for offences under s 67(3) of the Quarantine Act 1908 (Cth), 35 Buss P, Mazza and Vaughan JJA emphasised the importance of the offender being adequately punished, the Court stated at [109]:

… [I]t is essential to ensure that the appellant is adequately punished for the offences having regard, in particular, to the objective seriousness of his offending (including his role within the criminal enterprise) and the important sentencing factor of general deterrence with a view to ensuring proper compliance with Australia’s biosecurity laws.

In assessing the impact to the Australian biosphere, courts have consistently considered the potential harm that could have resulted from the importation rather than the actual harm. This approach has been taken by intermediate appellate courts when sentencing offenders for fraud offences relating to biosecurity controls, 36 and has been applied by state supreme courts when sentencing offenders for offences against the Biosecurity Act 2015 (Cth) and the Quarantine Act 1908 (Cth). For example, in R v Ware (Unreported, Supreme Court of Tasmania, Geason J, 10 September 2019), which concerned offences against the Biosecurity Act 2015 (Cth) and the Quarantine Act 1908 (Cth), Geason J stated:

… I have been provided with a decision of the Queensland Court of Criminal Appeal in R v Moxon [2015] QCA 65.  One emphasis in that case is upon the need to protect against the risk of harm and to avoid undue focus on actual harm.  That is pertinent in this case.

… An appropriate sentence is one which punishes you for your conduct, with due regard paid to the persistent nature of that offending and its potential for harm, which upholds the principle at the heart of the biosecurity laws of this country, and ensures their effectiveness.

[Emphasis added]

Where an offender imports or exports multiple specimens, the potential impact of each specimen must be individually assessed. For example in R v Kennedy [2019] NSWCCA 242, Payne JA and Fullerton J (Adamson J agreeing) at [86] analysed the potential impact to the Australian biosphere of the importation of soft-shelled turtles, alligator snapping turtles, snakehead fish, veiled chameleons and sugar gliders. This analysis included a review of expert evidence relevant to each of the species, including the potential pathogens the species could carry into Australia.

Similar remarks have been made by local courts when sentencing offenders for offences of hindering compliance with, and failing to carry out biosecurity activities in accordance with an approved arrangement contrary to section 636 of the Biosecurity Act 2015 (Cth). For example, in DPP (Cth) v EB Ocean [2019] VCC 2072, Judge Wraight of the Victorian County Court specifically analysed the likely impact on the local prawn industry, were an importation of prawns to have led to a widespread outbreak of a virus. Judge Wraight stated at [57]:

It is clear that in cases of this nature, general deterrence must be the paramount sentencing consideration. The consequences of contamination of the commercial and non-commercial populations of crustaceans as noted above, would result in significant losses to prawn and other species and potential great economic losses. As such others need to be sent a message that offences of this nature will attract criminal sanctions. It is also clear in the authorities that potential harm is a matter that is able to be taken into account when assessing the seriousness of the offence and the potential penalty. 37

4.2 Parity between corporate and individual offenders

When sentencing individual and corporate offenders for related offences under the Quarantine Act 1908 (Cth), courts have considered that the significant differences between the inherent nature of the offenders, means that parity will have less weight in exercising sentencing discretion. Courts have emphasised that a fine imposed on a corporation cannot be meaningfully weighed against a sentence of imprisonment imposed on an individual offender. For example, in Soerensen v The Queen [2020] WASCA 114, the Court (Buss P, Mazza JA and Vaughan JA) stated at [128]:

We are satisfied that, in the context of the parity principle, there was an obvious and significant difference between the appellant and GD Pork. The appellant was an individual who was liable to be imprisoned on each count. GD Pork was a body corporate that was liable to a fine on each count.

5. Matters specific to people smuggling offences

5.1 Statutory minimum sentences

When sentencing offenders for offences against sections 233B, 233C or 234A of the Migration Act 1958 (Cth), courts are not permitted to make an order under s 19B of the Crimes Act 1914 (Cth) if the offender was aged over 18 at the time the offence was committed: see s 236A of the Migration Act 1958 (Cth). This means that offenders can only be discharged without a conviction recorded if they were aged under 18 at the time of the offence.

The prosecution bears the onus of proof in relation to the offender’s age on the balance of probabilities: s 236D of the Migration Act 1958 (Cth).

In addition to the limitation imposed by section 236A, section 236B of the Migration Act 1958 (Cth) also prescribes minimum sentences that must be imposed with respect to certain offences for offenders aged 18 years or older at the time the offence was committed. 38

Section 236B relevantly states:

Section 236B

Mandatory minimum penalties for certain offences

(1)  This section applies if a person is convicted of an offence against section 233B, 233C or 234A.

(2)  This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

(3)  The court must impose a sentence of imprisonment of at least:

  • (a)  if the conviction is for an offence against section 233B–8 years; or
  • (b)  if the conviction is for a repeat offence–8 years; or
  • (c)  in any other case–5 years.

(4)  The court must also set a non-parole period of at least:

  • (a)  if the conviction is for an offence to which paragraph (3)(a) or (b) applies–5 years; or
  • (b)  in any other case–3 years.

For general discussion on the application of statutory minimum penalties, including how minimum penalties interact with discounts awarded for pleas of guilty or co-operation with authorities, see: Nature and Circumstances of the Offence.

The constitutionality of the imposition of mandatory minimum penalties for people smuggling offences under the Migration Act 1958 (Cth) was upheld by the Court in Magaming v The Queen [2013] HCA 40.

5.2 Not a victimless crime

Courts have generally held that people smuggling offences are not victimless crimes and have instead considered the risks that individuals face when transiting to Australia, the monetary gain offenders receive, and the fact that the individuals will likely be returned to their country of origin by Australian authorities. In Cita v The Queen [2001] WASCA 5, the Court (Malcolm CJ, Owen and Parker JJ) rejected a submission advanced by the appellant that people smuggling was a victimless crime. The Court stated at [20]–[22]:

From this material it was contended … that … [the offenders] were in truth engaged in what was submitted to be a victimless crime, which was more accurately to be regarded as the humanitarian activity of placing refugees. … Rather than the applicants being part of a scheme which preyed on those unfortunate refugees for their money, leaving them in the end after a grim ordeal in the hands of the Australian authorities to face the likelihood of being deported and returned to their homeland, the additional material should be accepted, it is submitted, as revealing that Australia has accepted and will honour an international obligation to receive and offer protection to refugees. … On that basis and reasoning it is submitted that the view of the seriousness of the criminal conduct of Mr Cita and Mr Lamaha which was taken by the sentencing Judges was much too severe. …

There are many difficulties with this line of reasoning. There is at once an obvious difficulty with the proposition which seeks to categorise the knowing involvement of both applicants in a clandestine and illegal activity, solely for their own personal financial gain, as an humanitarian activity. …

There is a more fundamental objection to the submission, however, as it fails to have due regard to the legislative scheme of the Migration Act and the degree of seriousness, for the purposes of that Act, which is properly attached to the conduct of the applicants which constituted the offences for which they were sentenced. 39See also R v Mohammad Reza Fayazi [2017] NSWDC 362.

This case has been applied in other intermediate appellate court decisions. Beyond the general considerations outlined above, courts have also considered the administrative and regulatory cost of people smuggling offences which is borne by the Australian community as a whole. For example, in Dui Kol v The Queen [2015] NSWCCA 150, Adams J (with whom Hoeben CJ at CL agreed on this issue) stated at [23]:

Broadly speaking the matters of peculiar relevance to assessing the seriousness of this offence are as follows … the frustration of the legislative and administrative system by which Australia seeks to deal in a fair and orderly way with non-citizens who wish to come to Australia, including, especially, refugees; the considerable administrative burden and expense for the asylum seekers’ care and custody, as well as the costs of detection; and the significant health and quarantine risks associated with the unofficial entry of these people. The Crown also points to the diversion of funds from dealing with the needs of others who have not found the opportunity or money to effect a clandestine entry into Australia and the … exploitation of non-citizens attempting to enter Australia illegally, relying upon the above cited passages from Cita. To my mind, there is no basis for assuming that funds needed to deal with unlawful entrance involve any diversion from caring for the needs of legal immigrants although, of course, it must be accepted, that the extra expense represents funds which would no doubt be available to be used by the government for other purposes. …

In contrast, in DPP (Cth) v Haidari [2013] VSCA 149 the Court found that, in the particular circumstances of the case, the respondent’s offending had an element of altruism to it and that no one was put at risk as a result of the offending. Harper JA (Weinberg and Priest JJA agreeing) stated at [27]:

These matters must in my opinion mitigate his criminality. And there is an additional consideration. The respondent’s circumstances were such that, when those with whom he remained connected in Iran and elsewhere, including perhaps close members of his family, contacted him with the proposition that he assist an acquaintance to get into Australia, he would have found it difficult to say no. It was in this way that his career as a people smuggler began with Mr Qureishi. And it may be accepted, as was submitted on his behalf during the hearing of the plea, that an element of altruism intruded. He knew what it was like to be a refugee. Until his application for Australian citizenship was granted, that was his life. It would be very difficult for anyone with a background similar to that of the respondent not to feel very sympathetic towards those who have no choice but to abandon almost everything which they treasure, and nearly all which has shaped not only their own lives but also the lives of their forebears – everything which makes them what they are – for a highly hazardous journey into an equally hazardous unknown.

[Emphasis added]

Despite this finding, Harper JA (Weinberg and Priest JJA agreeing) went on to state at [37], [39]:

It is also necessary to take into consideration the fact that the respondent’s offending put no one at risk; and that factor, when properly taken into account, diminishes the respondent’s culpability.

… These facts give substance to the notion that the respondent’s own experiences may have added an element of altruism into his people-smuggling activities. Although he was in that business, it was in a very small way and involved people who may well, like him, have had every reason to think that Iran was a hostile place in which to live.

[Emphasis added].

Notes:

  1. See Sentencing Child Exploitation Offences.
  2. In addition to the more commonly prosecuted offences outlined below, Part XIII div 2 of the Customs Act 1901 (Cth) contains additional specific smuggling offences, for example in relation to the importation of UN-sanctioned goods.
  3. As discussed below, the maximum penalty for some offences varies based on the value of the goods and the value of any duty evaded: see 1.1.2 Maximum Penalties for Offences Against Sections 233 and 233A.
  4. Sections 233(5) and 233A(1A) of the Customs Act 1901 (Cth). Narcotic goods relevantly include any goods consisting of a border controlled drug or a border controlled plant: s 4 Customs Act 1901 (Cth). Offences relating to the importation or exportation of border controlled drugs and plants are contained in the Criminal Code (Cth). Sentencing principles relevant for drug importation offences are discussed in: Sentencing Serious Drug Offenders.
  5. This list of goods also includes some products which are prohibited by different categories of offence provisions which will be discussed in more detail below.
  6. The value of any goods forfeited due to seizure is not factored into the maximum penalty.
  7. For example, goods containing asbestos are specified in the regulations.
  8. See further Sentencing Serious Drug Offenders.
  9. Graeme Samuel, ‘Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999’ (Government Report, October 2020) Recommendation 30. The report can be accessed here.
  10. See sections 185(3): 1000 penalty units, 186(3): 1000 penalty units, 187(4): 1000 penalty units, 636(3): 120 penalty units.
  11. Commercial advantage is not defined, but examples are contained in s 185(4).
  12. Commercial advantage is not defined, but examples are contained in s 186(4).
  13. Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975).
  14. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993).
  15. Section 303CA(1) of the EPBC Act.
  16. Section 303DB of the EPBC Act. A native specimen is then defined as a specimen that is ir is derived from a native animal or native plant and not contained in the list created under s 303DB: s 303DA of the EPBC Act.
  17. Section 303EB of the EPBC Act. A live specimen that is not on that list is then taken to be a regulated live specimen: s 303EA of the EPBC Act.
  18. A list of the contracting parties can be accessed on the CITES webpage.
  19. The minimum penalties contained in the table are for non-repeat offences, for repeat offences the minimum penalty is instead 8 years’ imprisonment: s 236B(3)(b).
  20. Similar statements were made in R v Saleh [2015] NSWCCA 299; Young v The Queen [2016] VSCA 149 and Barakat v DPP (Cth) [2020] VSCA 185.
  21. See, for example, Nguyen v The Queen [2016] NSWCCA 5, [60] where the offender’s role was taken into account as a sentencing consideration, [61] where the amount of pseudoephedrine was taken into account as a sentencing consideration.
  22. See further R v Kennedy [2019] NSWCCA 242 at [23], [25] where the Court summarised some of the findings of principle made by the sentencing judge. The sentencing judge had noted that undue cruelty in this context “must be something more than a risk of death on transportation”. The Court went on to find that the sentencing judge had correctly identified the sentencing principles, but that the overall sentence was manifestly inadequate: [82].
  23. Similar statements were also made by the Victorian Court of Appeal in DPP (Cth) v Haidari [2013] VSCA 149, [21] (Harper JA, Weinberg JA and Priest JA agreeing).
  24. The Act has since been amended so that drug importation offences of this kind are now prosecuted under the Criminal Code (Cth). For discussion see Sentencing Serious Drug Offenders
  25. This approach has been followed in tobacco importation offences: R v Nguyen [2005] NSWCCA 362, [56]. Barakat v DPP (Cth) [2020] VSCA 185, [69].
  26. See also [7] (Beech-Jones J).
  27. This mirrors the approach taken in drug importation offences, where the quantity of drug imported is a significant sentencing consideration when assessing the seriousness of the offending: see Sentencing Serious Drug Offenders.
  28. See in the context of narcotics importation offences: Wong v The Queen [2001] HCA 64; R v Nguyen [2010] NSWCCA 238.
  29. See also R v Kennedy [2019] NSWCCA 242.
  30. See 4.1 Impact to Australian biosphere and local industries.
  31. The Court went on to specifically assess the potential impact in relation to the different animals that the offender imported or attempted to import: see [86](2). See further DPP v Yi [2015] VCC 199; DPP (Cth) v EB Ocean [2019] VCC 2072.
  32. For further: 2.5 Financial gain
  33. See also Comptroller-General of Customs v C [2020] WASC 290, [130] (Smith J).
  34. See Soerensen v The Queen [2020] WASCA 114, [56] (Buss P, Mazza and Vaughan JJA).
  35. This provision was repealed on 16 June 2016.
  36. R v Moxon [2015] QCA 65.
  37. Judge Wraight had earlier considered expert evidence in relation to the potential economic impact of the offending, see [40].
  38. For offenders under the age of 18, state specific legislation may also be picked up and applied by the operation of s 68 of the Judiciary Act 1903 (Cth). This may require the matter be referred to a children’s court (or equivalent). This was discussed by the Western Australia Court of Appeal in Jasmin v The Queen [2017] WASCA 122. In that case the offender was aged 13 at the time of the offence, however the crown contended at the prosecution that he was over 18. The Court of Appeal held that the District Court erred in finding that the offender was 18 at the time of the offence, and that he was rather a child at the relevant time. The Court substituted a verdict of acquittal.