THE QUEEN v LETETIA ANNE WARE 10 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE GEASON J
Ms Ware, you appear today for sentence in respect of 10 charges to which you have pleaded guilty: three counts of aggravated illegal importation of plants contrary to s 67(3) of the Quarantine Act 1908 (Cth), and seven counts of importing conditionally non-prohibited goods, contrary to s 186(4) of the Biosecurity Act 2015 (Cth).
I find in accordance with the facts published on Wednesday of last week by counsel for the Commonwealth Director of Public Prosecutions. Summarised, those facts are that, on 21 occasions you imported about 2,186 garlic bulbils into Australia from Canada and the United States of America. And you did so without complying with any of the mandatory requirements for the importation of those bulbils. The first four counts relate to the garlic imported from Canada, with the remaining counts relating to the importation of garlic from the United States of America. The family to which garlic, a member of the Allium family belongs, is a known host for a serious plant pathogen knowns as “Xylella fastidiosa”. That disease is not present in Australia, but is native to the United States and Canada. Accordingly the United States and Canada are considered high risk countries for that disease. Garlic is also a host for a number of exotic pathogens and pests which are of concern, including the bacteria which causes such diseases as leaf blight, onion smut and leaf spot. It can carry numerous unwanted exotic insects known to be present in the United States and Canada, and which are not ordinarily found in Australia.
I accept that in fact this disease has not been detected in garlic bulbils, but the law reflects the fact that the risk exists, based upon expert assessment. There is no hierarchy of risk – just risk. The only way to manage risk is through the enforcement of the laws which you breached. That regime exists to protect Australia’s biosecurity.
The law does not confer upon you or anyone else a right of self-regulation, the authority to make your own assessment about risk, and your own judgment about the need to comply. Your conduct demonstrates that you saw yourself as above compliance with Australia’s quarantine laws. There is an arrogance in your behaviour. Indeed, I am amazed that you could, on the one hand, claim organic accreditation, and all that certification stands for, and, at the same time, flagrantly flout the quarantine regime with all the risks to agriculture that that course of conduct entails.
Your immediate financial gain was modest. The minimum cost of an import permit is $180. One import permit may well have covered all importations. You also avoided the costs associated with obtaining a phytosanitary certificate from the exporting countries, and you avoided the mandatory treatment option. The indicative cost of such treatment, I am told, is $2,130 in this case, comprising $195 per import and the $180 import fee to which I have already referred. For that modest financial advantage, you were prepared to engage in a course of conduct which created a risk to all agricultural activity. You also avoided the risk that the fumigation and hot water treatment which is indicated for this import, would have a negative impact upon its quality, storage duration and viability. You avoided the delay in having to obtain a permit, which I am told takes about 20 days.
Section 16A(1) of the Crimes Act 1914 (Cth) requires the Court to impose a sentence that is of a severity appropriate in all the circumstances. (Power v The Queen (1974) 131 CLR 623; Hili v The Queen (2010) 242 CLR 520 at ) The maximum penalty applicable to each offence in this case is imprisonment for 10 years, or a pecuniary penalty of $360,000, or both. It is well understood, of course, that statutory maxima are reserved for the worst cases, and this case is not in that category.
I regard the need for general deterrence as a particularly important aspect of the sentencing exercise in this case, but I do not ignore the need for specific deterrence in the face of a protracted course of conduct. This conduct ceased because you were caught, not because you thought better of what you were doing.
You have never held an import permit for the importation of garlic. You have previously held an import permit for a specific commodity of mushroom spores or cultures. The relevance of that fact is that it exposes your awareness of the need to obtain the appropriate permissions. That you knew that is not, of course, in doubt, because your conduct exhibited an awareness of that obligation which resulted in you instructing those supplying you to mis-declare the garlic in order to avoid its being intercepted on arrival into Australia.
For example, on count 5, you wrote to your supplier: “Please do not declare garlic on customs as it will be picked up through quarantine. Many thanks, Letetia.” Further, you gave instructions to those suppliers about how to pack the product in order to minimise the risk of interception.
I also observe that intervention by the authorities did not cause you to reflect on your behaviour and to desist. For example, in relation to count 2 you received a letter on 4 October 2015 from the Department advising that garlic had been intercepted by it, and the bulbils found had been destroyed. You were told in that letter that this had occurred because the goods were considered likely to introduce exotic pests or disease into Australia.
So determined were you in avoiding your obligations that you even chastised some suppliers when they failed to follow your instructions about mis-declaring the garlic. In respect of the same count (count 2), on 12 October 2015, you contacted the vendors and included a photograph of the intercepted package which you had been provided by the Department, and you asked the vendors to explain why they did not declare the package as garden supplies as you had asked.
I turn in more detail to sentencing considerations. As a general proposition, others must be deterred from behaving as you have, not least because such activity may be difficult to detect, and, in cases where detection is not easy, it is important that the Courts send a strong message of general deterrence because of the significant consequences which may accrue if laws such as these are ignored. I have been provided with a decision of the Queensland Court of Criminal Appeal in R v Moxon  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.
You have pleaded guilty to these charges. I am prepared to accept the plea was entered at a relatively early stage after resolution of some technical matters, but I do not accept that the plea was made at the earliest possible opportunity. I accept that some utilitarian benefit accrues in consequence of your plea, and I intend to discount the penalty I would otherwise impose by 10% in recognition of it. (Disclosure of the discount ensures transparency and is consistent with the approach identified in Xiao v R (2018) 96 NSWLR 1 at - and in the Court of Criminal Appeal in this state in Broad v The DPP  TASCCA 5 at  per Estcourt J and at  per Geason J)
I also accept that a guilty plea can be evidence of remorse. When a guilty plea is considered in the context of remorse, it is appropriate to have regard to the strength of the Crown case, and it is open to me to conclude, as I do, that there was some recognition of the inevitable in your plea.
I observe and have regard to the fact that admissions were made by you during your interview and that you co-operated with authorities. I have received a written reference on your behalf to which I also have regard. It appears to me that you were held in high regard by your peers, evidenced by your leadership role in an industry body. I expect that you will have suffered significant loss of reputation in consequence of these matters, and that that will operate upon you into the future. That is a matter which I consider will influence your future conduct and discourage further offending. That is relevant in the context of rehabilitation. I note the matters that have been put to me by your counsel. I note your age and your circumstances, including your limited financial circumstances. You operate your farm through a company. You are its sole director. You are the decision-maker. I also accept that, apart from this offending, there are no relevant prior matters. But, of course, it is well established that any claim to good character is required to be considered in the context of the persistent nature of the offending. This offending continued over a period of 18 months, ceasing only upon your being caught. You cannot claim that this was a mere aberration.
I have given careful consideration to the appropriate sentence. In particular, I have given consideration to whether a term of imprisonment can be avoided through the imposition of another sentence. I have determined that no other sentence is appropriate in all the circumstances of 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.
I intend to impose global sentences in respect of the two categories of offending. That is to say, in respect of the matters which arise under the Quarantine Act and those which arise under the Biosecurity Act. There are three in the former category, and seven in the latter. I have regard to the principle of totality in fixing sentence, and arriving at a sentence which is just and appropriate, acknowledging that the Crimes Act gives effect to that principle. But I consider it appropriate to mention it.
Ms Ware, in respect of counts 1, 2 and 3 on the indictment, you are sentenced to three months’ imprisonment. In respect of counts 4 to 10 on the indictment, you are sentenced to eight months’ imprisonment. That sentence operates cumulatively to the sentence that I have imposed in respect of the first three matters. That is a total of 11 months’ imprisonment. I am satisfied that the sentencing objectives applicable here can be met without requiring you to serve all of that sentence (Dinsdale v The Queen  HCA 54, 202 CLR 321 at 328  per Gleeson CJ and Hayne J, and at  per Kirby J). I direct that you are to be released from custody after serving two months of that sentence on condition that you enter into a recognizance in the sum of $2,000, and are of good behaviour for a period of three years.
I am required by the Crimes Act to explain to you the effect of the sentence. It is, that you are sentenced to a term of imprisonment for 11 months, and will be required to serve two months of that sentence before you are released on these conditions: upon your own promise secured in the sum of $2,000, and that you are of good behaviour for three years. You are entitled to apply to vary that recognisance under the provisions of s 20AA of the Crimes Act. The purpose of the order is to give effect to the principles set out in the Crimes Act in terms of the determination of a penalty which reflects the need for general and personal deterrence, pays proper regard to your circumstances and rehabilitation, and gives effect to the statutory purpose enshrined in the legislation which you have contravened.