Law enforcement officers from the Multi-Agency Strike Team (MAST) have issued a Court Attendance Notice (CAN) for two counts of importing tobacco products with intent to defraud revenue against a 42-year old man over the seizure of 25 million cigarettes found in two containers at the New South Wales border.
The man will face Downing Centre Local Court on 31 July 2025.
The CAN follows charges being brought against seven alleged members of a syndicate said to be responsible for illegally importing 46 million cigarettes.
Those charges are currently proceedings through the courts.
The investigation
MAST established Strike Force Aulic in September 2023 to investigate the illegal importation into, and supply of, prohibited drugs and tobacco products in Australia.
According to police, the strike force identified a syndicate which purported to have the ability to import the substances by circumventing border controls.
Pursuant to these investigations, four containers holding a total of 46 million cigarettes were intercepted and seized at the NSW border by officers from the Australian Border Force (ABF). The illicit cigarettes are estimated to be worth $31 million.
The eight men who are alleged to be members of the syndicate are all facing charges under the Customs Act 1901.
Customs Act offences relating to tobacco products
Section 233BABAD of the Customs Act 1901(Cth) ('the Act') contains four offences relating to the illegal importation, conveyance or possession of tobacco products in Australia.
Importing tobacco products with intent to defraud
Importing tobacco products with the intention of defrauding the Commonwealth of revenue is an offence under section 233BABAD(1) of the Act which carries a maximum penalty of 10 years in prison and five times the amount of duty payable on the products if that amount can be determined, or 1000 penalty units if it cannot be determined.
One Commonwealth penalty unit is equivalent to $330 at the time of writing, which means the maximum fine is $330,000.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- A person imported goods into Australia,
- The goods were tobacco products, and
- The person intended to defraud the Commonwealth of revenue.
Conveying or possessing tobacco products known to have been imported with intent to defraud
Conveying or possessing tobacco products known to have been imported with the intention to defraud the Commonwealth of revenue is an offence under section 233BABAD(2) of the Act which carries a maximum penalty of 10 years in prison and five times the amount of duty payable on the products if that amount can be determined, or 1000 penalty units ($330,000) if it cannot be determined.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- A person conveys or possesses goods,
- The goods are tobacco products, and
- The person knew the goods had been imported with the intention to defraud the Commonwealth of revenue.
It is not necessary for the prosecution to prove the identity of the person who imported the tobacco products.
Recklessly importing tobacco products
Importing tobacco products whilst reckless as to whether the Commonwealth was being defrauded of revenue is an offence under section 233BABAD(2A) of the Act which carries a maximum penalty of 5 years in prison and three times the amount of duty payable on the products if that amount can be determined, or 500 penalty units ($165,000) if it cannot be determined.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- A person imported goods into Australia,
- The goods were tobacco products, and
- The person was reckless as to whether the Commonwealth was being defrauded of revenue.
A person was 'reckless' in the context of the offence if he or she knew there was a substantial risk the Commonwealth was being defrauded of revenue through the importation of the tobacco, and, having regarding to the circumstances known to the person, it was unjustifiable to take that risk, but he or she proceeded with the conduct regardless.
Recklessly conveying or possessing tobacco products
Conveying or possessing tobacco products whilst reckless as to whether they had been imported with the intention of defrauding the Commonwealth of revenue is an offence under section 233BABAD(2B) of the Act which carries a maximum penalty of 5 years in prison and three times the amount of duty payable on the products if that amount can be determined, or 500 penalty units ($165,000) if it cannot be determined.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- A person conveys or possesses goods,
- The goods are tobacco products, and
- The person was reckless as to whether the goods had been imported with the intention of defrauding the Commonwealth of revenue.
A person was reckless in the context of this offence if he or she knew there was a substantial risk the tobacco products had been imported with the intention of defrauding the Commonwealth of revenue, and, having regarding to the circumstances known to the person, it was unjustifiable to take that risk, but he or she proceeded with the conduct regardless.
It is not necessary for the prosecution to prove the identity of the person who imported the tobacco products.
Legal defences
In addition to having to prove each element (ingredient) of a tobacco offence beyond a reasonable doubt, the prosecution must disprove to the same high standard any legal defence raised on the evidence.
The most common legal defence to these offences is duress, which in the context of Commonwealth criminal law is where a person reasonably believed that:
- A threat had been made that would be carried out unless the person committed the offence,
- There was no reasonable way to render the threat ineffective, and
- The conduct was a reasonable response to the threat.
Other legal defences include sudden or extraordinary emergency, lawful authority and mental illness.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
