New Zealand Customs v Muhammad [2018] NZDC 27330

Published 12 July 2019

Sentencing — importing — evading payment of duty — erroneous entry — restoring goods seized in crime — Customs and Excise Act 1996, ss 203 & 211 — R v Rose [1990] 2 NZLR 552 — R v Varjan CA97/03 26 June 2003 — New Zealand Customs Service v Brereton HC Nelson CRI-2006-442-18, November 2007. The defendants were found guilty of charges relating to the undeclared importation of tobacco, concealed beneath properly imported kava. Both the defendant company and the defendant employee were found guilty of charges of making an import entry knowing that it was erroneous in a material particular and that, in respect of the same container, the defendants omitted to do an act for the purpose of evading duty on goods. The defendants were responsible for importing 66.2 kilograms of undeclared tobacco, with an associated duty totalling $53,169.95. The Judge turned to whether the presumption against restoring the kava to the defendants following conviction was outweighed by the defendants' ability to pay the outstanding duty and any Court fines, per the Brereton decision. The Judge ruled that the kava should be restored to the defendants so as to avoid a situation where the defendants cannot pay back any of what is owed. The Judge considered the aggravating and mitigating factors of the offending and adopted a starting and end sentence of $30,000 for the company ($15,000 per charge) and $8,000 to the defendant employee ($4,000 per charge). Court costs of $130 were ordered against both defendants, as well as an additional $2,000 in costs to the prosecution against the defendant company. Judgment Date: 6 November 2018.