On 10 September 2019, Letetia Anne Ware (53) was sentenced in the Hobart Supreme Court to 11 months’ imprisonment, after pleading guilty to 10 aggravated charges of illegal importation of plants.
The court directed that Ms Ware be released after serving two months of her sentence, upon entering into a recognizance of $2,000, and be of good behaviour for three years.
At the time the offending took place, Ms Ware worked as a commercial garlic grower and was president of the Australian Garlic Industry Association. On 21 occasions between August 2015 and February 2017, she imported more than 2,000 garlic bulbils from Canada and the United States into Australia. She instructed her suppliers to mislabel the contents, for example calling them ‘office supplies’, to avoid detection.
Risks to the Australian agricultural sector
The importation of garlic risks the introduction of Xylella fastidiosa, an invasive plant pathogen which is not present in Australia, and is considered a significant threat to Australian biosecurity.
Xylella fastidiosa can potentially spread to other plant species. For example, it could be transmitted to grapevines, which could have a disastrous effect on Tasmania’s wine industry.
Both Canada and the United States are considered ‘high risk’ countries for Xylella fastidiosa.
Garlic can also host exotic pests and other pathogens, including the bacteria that causes leaf blight, onion smut and leaf spot.
Challenges for prosecutors – Offence provisions
Prosecutors are required to select charges which most closely reflect the alleged criminal conduct. Offence provisions may provide for different levels of criminality.
Ms Ware pleaded guilty to three counts of aggravated illegal importation of plants, and seven counts of importing conditionally non-prohibited goods. Each count involved a commercial advantage aspect.
In this case, the evidence supported charges which captured not only the importation aspect (the ‘simpliciter’ offence) but also included the commercial advantage aspect, being the more serious (or ‘aggravated’) offence. A greater penalty applied to the aggravated offences.
The aggravated charges resulted from the commercial advantage received by Ms Ware by not adhering to import requirements, such as obtaining proper import permits. Ms Ware obtained an advantage over competitors or potential competitors, including through the avoidance of costs associated with fumigation and hot water treatment and the negative impact such treatment would have upon the garlic’s quality, storage duration and viability.
In sentencing, his Honour Judge Geason said that although Ms Ware’s immediate financial gain was modest, she was prepared to engage in a course of conduct which created a risk to all Australian agricultural activity. He said that although the disease Xylella fastidiosa has not been detected in garlic bulbils, the law reflects the fact that the risk exists, based on expert assessment.
“The only way to manage risk is through the enforcement of the laws which you breached,” Judge Geason said. “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.”
Judge Geason took into account Ms Ware’s early guilty pleas, but did not accept that they were made at the earliest opportunity.
“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,” Judge Geason said. “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.”
Summary of charges
- 3 x Aggravated illegal importation of plants, contrary to s67(3) of the Quarantine Act 1908 (Cth)
- 7 x Importing conditionally non-prohibited goods, contrary to s186(4) of the Biosecurity Act 2015 (Cth)