Comptroller of Customs v Lelua [2015] WSSC 72 (7 August 2015)

SUPREME COURT OF SAMOA
Police v Lelua [2015] WSSC 72

Case name:	Police v Lelua
Citation:	[2015] WSSC 72
Decision date:	7 August 2015
Parties:	COMPTROLLER OF CUSTOMS (informant) v TOPLAGI AH-YEN LELUA (accused)
Hearing date(s):
File number(s):	S4477/14-S4480/14
Jurisdiction:	CRIMINAL
Place of delivery:	Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and fined $1,500 and ordered to pay $250 costs to the prosecution.
Representation:	K Koria for informant S Wulf for accused
Catchwords:	Defrauding – maximum penalty – importation of prohibited goods
Words and phrases:
Legislation cited:
Cases cited:	L v Chief Executive of the New Zealand Customs Service [2012] NZCAA 3, R v Cappadona [2001] NSWCCA 194
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOS: S4477/14-S4480/14

BETWEEN

COMPTROLLER OF CUSTOMS
Informant

A N D

TOPLAGI AH-YEN LELUA female of Vaitele-Fou.
Accused

Counsel:
K Koria for informant
S Wulf for accused

Sentence: 7 August 2015

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of defrauding the revenue of Customs, contrary to s.251 of the Customs Act 2014, which carries a maximum penalty of $300,000 or 6 years imprisonment or both. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the informant’s summary of facts admitted by the accused, on 6 November 2014, the accused imported into Samoa a container which arrived on MV Liloa voyage 31. On the same date, the accused went to Customs to process the clearance of her container with a bill of lading documenting the contents of the container. The contents of the container were described in the bill of lading as “personal effects”. The accused did not produce a packing list which lists the items contained in the container. She then gave the bill of lading to the customs officer who examined the container.
3. Upon examination of the container, the customs officer surprisingly did not detect that there were two vehicles inside the container. After the examination, the customs officer submitted an examination report to a principal customs officer for assessment of import duty. The report was then endorsed and approved for formal entry and payment of duty by the assistant chief executive officer – border division. Later the same day, the container was released.
4. On 11 November 2014, Customs received a phone call from the Land and Transport Authority (LTA) requesting clearance documents for a vehicle year 2000 which had been brought to their office by the accused for registration. The LTA also advised that the accused had previously registered a 2004 model vehicle.
5. As a result of this notification from the LTA, Customs were able to find out that both vehicles had not been properly cleared from Customs control and that they had been imported unlawfully. A review of the relevant importation documents as well as the declaration signed by the accused revealed that the accused had failed to declare the importation of these two vehicles.
6. On 13 November 2014, the accused was approached at her home at Vaitele- Fou by two customs officers regarding the importation of the said vehicles. The accused admitted that there were two vehicles hidden inside the said container which were not declared and were released without payment of duty. One of the two vehicles is the 2000 model vehicle. This vehicle was outside of the allowed cut-off date for imported vehicles as it is more than 12 years old and therefore a prohibited import.
7. Both vehicles, the 2000 model and the 2004 model, were subsequently seized by Customs and the accused was required to pay the duty she had avoided. That duty has been paid according to the victim impact report. The customs officer responsible for the examination of the container in question was subsequently dismissed.

The accused

8. The accused is 45 years old. She has been living in New Zealand and Australia for 30 years. At present, she is living with her children in Australia. She often visits her family in Samoa and stays at her freehold property at Vaitele Fou.
9. The accused is a first offender and it appears from the pre-sentence report and her character testimonials that she had been a person of reasonably good character. She has paid the applicable duty on the two vehicles she had unlawfully imported and has not challenged the determination by Customs that both vehicles were to be seized and forfeited to the State. She has also apologised to Customs.
10. The accused has also pleaded guilty to the charge against her at the earliest opportunity.

Discussion

11. This is the first prosecution to come before this Court for defrauding the revenue of Customs under the Customs Act 2014. I have also not found any case on a similar prosecution under the Customs Act 1977 which was repealed and replaced by the Customs Act 2014. Counsel were also not able to find any such case. So there is no guidance provided in a previous Samoan case on the type of sentence to be imposed in a case of defrauding the revenue of Customs.
12. It should also be noted that the informant’s summary of facts does not show the amount of duty that was payable on the two unlawfully imported vehicles and which has been paid by the accused. Be that as it may, the two vehicles were a 2000 model and a 2004 model. So the vehicles were by 2014 when they were imported into Samoa 14 years and 10 years old. They were therefore not new but old vehicles. Their respective values must have been relatively low and the duty payable on each of them must also have been low.
13. This case also involves only one incident of defrauding the revenue of Customs. It is not a case of a systematic fraud. It also did not involve a multiplicity of criminal acts committed over a period of time. This case therefore lies towards the low end of the scale.
14. In the case of R v Cappadona [2001] NSWCCA 194 cited by counsel for the defence, the accused who were husband and wife were business people. They systematically defrauded the tax revenue of a total amount of more than $3.5 million over a period exceeding 5 years. In the New South Wales Court of Appeal, the husband was sentenced to 18 months imprisonment after the aggravating and mitigating factors were taken into account. On the other hand, the suspended sentence imposed on the wife in the trial Court remained.
15. The case of L v Chief Executive of the New Zealand Customs Service [2012] NZCAA 3, cited by counsel for the prosecution, shows that the appellant had been convicted in the New Zealand District Court of importing into New Zealand clothing, clothing accessories, shoes, and a diamond ring without declaring some of those items and undervaluing others. The appellant was fined $2,000 and ordered to pay Court costs. The appellant had pleaded guilty to the charge of defrauding the revenue of Customs but up to the time he was sentenced had not paid the duty he owed to Customs.
16. In passing sentence in a case of defrauding the revenue, general deterrence is a predominant consideration to be taken into account: R v Cappadona [2001] NSWCCA 194 per McClellan J at para 33. There is also a strong need for protecting our borders and supporting the work of Customs: L v Chief Executive of the New Zealand Customs Service [2012] NZCAA 3, for Judge Barber at para [71].
17. In view of what I have said about this case, and the cases cited by counsel, I consider that a monetary fine would be the appropriate penalty.

Result

18. The accused is convicted and fined $1,500 and ordered to pay $250 costs to the prosecution.

CHIEF JUSTICE