Childs v The State of Western Australia
[2023] WASCA 145
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHILDS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 145
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 14 APRIL 2023
DELIVERED : 13 OCTOBER 2023
FILE NO/S: CACR 56 of 2022
BETWEEN: STUART GORDON CHILDS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHEPHERD DCJ
File Number : IND 959 of 2021
Catchwords:
Criminal Law - Appeal against sentence - 17 counts of possession of prohibited drugs with intent to sell or supply - Steroids - Large commercial operation - Appellant filled orders and acted as storeman - Whether sentence of 8 years for one count involving 3,718 vials of testosterone was manifestly excessive - Whether total effective sentence of 12 years breached first limb of totality principle - Whether steroids should be treated as being as serious as equivalent quantities of other prohibited drugs
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6, s 6(1)(a), s 34(1)(aa), sch V div 2, sch VII div 2
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr P Yovich SC & Ms K Louden |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Jeremy Noble Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
ENR v The State of Western Australia [2018] WASCA 9
Farquhar v The State of Western Australia [2005] WASCA 49
Higgins v The State of Western Australia [2019] WASCA 78
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Kabambi v The State of Western Australia [2019] WASCA 44
Mather v The State of Western Australia [2017] WASCA 148
McGrath v The State of Western Australia [2021] WASCA 118
Monisse v The State of Western Australia [2021] WASCA 52
MSO v The State of Western Australia [2015] WASCA 78
NG v The State of Western Australia [2017] WASCA 124
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Roach [2017] QCA 240
R v Stamatov [2017] QCA 158; [2018] 2 Qd R 1
Scott v The King [2023] WASCA 14
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
Yanko v The Queen (Unreported, WASCA, Library No 960030, 23 January 1996)
Zanon v The State of Western Australia [2016] WASCA 91
QUINLAN CJ & HALL JA:
The appellant pleaded guilty to 17 counts of possession of prohibited drugs, namely various steroids, with intention to sell or supply them contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) and one count of being in possession of a thing capable of being stolen, namely a quantity of cash, that was reasonably suspected of being unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
The sentence on count 3 of the indictment, which related to 3,718 vials of testosterone, was 8 years and 6 months' imprisonment. The total effective sentence was 12 years' imprisonment. The appellant seeks leave to appeal the sentence on count 3 and the total effective sentence.
The grounds of appeal are that the sentence on count 3 was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle. The appellant submits that the sentences were plainly unreasonable or unjust after taking into account his pleas of guilty, favourable antecedents and low risk of reoffending.
The appellant also submits that although the total quantity of steroids was large, it cannot be meaningfully compared to similar quantities of other drugs such as methylamphetamine or cocaine. In this regard the appellant points to the quantities of those other prohibited drugs prescribed in sch III, sch V and sch VII of the MDA as compared to the quantities prescribed for steroids. This comparison, it is said, provides some indication of the significance of quantities of steroids as compared to other drugs. When that factor is taken into account, the seriousness of the offences in this case is said to have been overstated.
For the reasons that follow, and notwithstanding the absence of meaningful comparable cases in what was a difficult sentencing exercise, we have concluded that the sentence on count 3 and the total effective sentence were plainly unreasonable or unjust. We would grant leave to appeal on both grounds, allow the appeal and resentence the appellant. In our view the appropriate sentence on count 3 is 5 years' imprisonment and the appropriate total effective sentence is 8 years' imprisonment.
The agreed facts
The facts were not disputed. They can be summarised as follows.
In September 2020 the police conducted an investigation into the sale and supply of steroids in Western Australia. It came to the attention of police that a particular post office branch was selling significantly more parcel bags than other post offices. The sale of parcel bags was monitored over a three‑month period. In that period the police identified the appellant as regularly buying large numbers of parcel bags and paying cash. He was spending approximately $2,000 per week on the bags which were valued at $9.55 each. This equated to approximately 200 parcels per week.[1]
[1] ts 48 - 49.
The police investigation established that the parcels were being used to fulfil orders that were placed through a website called Ozgear. The website was hosted by a server in an overseas country. This website offered a wide range of steroids for purchase by members of the public. Orders could be placed on the website by purchasers in Australia and the steroids were then packaged and sent by post from an Australian post office.[2]
[2] ts 10, 36, 49.
On 25 March 2021 the appellant was observed leaving a house in Bertram (the Bertram house) in his motor vehicle. He was stopped and arrested. The police then accompanied him back to the Bertram house, for which he had a key. The Bertram house had been rented in the appellant's name and was a five‑minute drive from his home in Wellard (the Wellard house).[3]
[3] ts 49.
The police executed a search warrant at the Bertram house. There were no obvious signs that anyone was residing at the house. In various bedrooms there were large shelving units with boxes containing vials of liquid steroids or tablets. In total over 6,900 vials were seized by police. When analysed the vials and tablets were found to contain prohibited drugs in the form of various steroids. The vials were labelled with descriptions such as 'core anabolics' and 'geneva labs'. Large bottles of liquid steroids were also found.[4]
[4] ts 49 - 50.
The police seized the following:[5]
[5] ts 49 - 50.
1.a 2 litre bottle of testosterone weighing 2.1 kg (count 1);
2.a bottle of boldenone weighing 945 g (count 2);
3.3,718 vials of testosterone with a total volume of 33,413.3 ml (count 3);
4.1,136 vials of trenbolone with a total volume of 11,882.3 ml (count 4);
5.844 vials of dromostanolone (drostanolone) and four bottles of the same steroid, with a combined weight of 3.401 kg (count 5);
6.1,002 vials of nandrolone with a total volume of 8,863.4 ml (count 6);
7.293 vials of boldenone with a total volume of 2,577.8 ml (count 7);
8.three vials of methenolone with a total volume of 17 ml (count 8);
9.21,216 tablets of methandienone with a total weight of 6.54 kg (count 9);
10.18,208 tablets of stanozolol with a total weight of 5.923 kg (count 10); and
11.24 tablets of oxandrolone with a total weight of 4.39 g (count 11).
The police found records of postal orders in a filing cabinet. These orders could be traced back to the Ozgear website. A review of that website revealed that vials of steroids were sold for up to $110 each and tablets for up to $140 per packet. A large quantity of Australia Post package bags was also found. Empty glass jars and vials were located in a linen cabinet in the house.[6]
[6] ts 49 - 50.
Thirteen driver's licences in false names were found. Each licence had the appellant's photograph reproduced on it. These licences had been used for identification purposes when renting post office boxes with Australia Post.[7]
[7] ts 50.
A search was also conducted of the appellant's Wellard house. At that location the police found a large quantity of non-prescription pharmacist-only medications, such as Panadol Forte, as well as more steroids, being:[8]
1.22 nandrolone tablets with a total weight of 4.39 g (count 13);
2.seven chloromethandienone tablets with a total weight of 1.4 g (count 14);
3.nine glass vials of testosterone with a total volume of 57.5 ml (count 15);
4.one vial of methenolone with a volume of 3.6 ml (count 16);
5.one vial of boldenone with a volume of 3.4 ml (count 17);
6.four vials of dromostanolone (drostanolone) with a total volume of 43.8 ml (count 18).
[8] ts 51.
In a safe in the main bedroom of the Wellard house police located $51,840 in cash (count 12).[9]
[9] ts 51.
The appellant was interviewed and admitted possession of the steroids. He claimed that the steroids found at the Wellard house were given to him for personal use.[10]
[10] ts 51, 56.
The appellant's personal circumstances and his explanation for the offences
The information that follows is derived from submissions made at sentencing by the appellant's lawyer, a pre-sentence report, a psychological report and references tendered on his behalf.
The appellant was 33 years of age at the time he was sentenced. He was born in Auckland, New Zealand and has an older sister and two half-sisters. One of his half-sisters passed away in 2021. He comes from a stable and pro-social family. He remains close to his family, who remain supportive of him.[11]
[11] ts 62 - 63.
The appellant completed his education to year 12 in New Zealand. He then did a course in information technology (IT) and obtained a diploma in systems engineering. After completing that course, he was employed in the IT industry working for a company that sold equipment and maintained software for schools. He then worked for four years for a company that provided IT support for retail stores and businesses.[12]
[12] ts 33, 62.
The appellant and his partner commenced their relationship when he was 19 and moved to Western Australia together in 2014. After moving to this State, the appellant obtained a job in the IT industry. He continued in that position for five years and was well regarded by his employer. His partner is a qualified teacher but was unable to obtain a teaching position in this State without undertaking further study, so she obtained employment working in administration at a childcare centre. They purchased a house in 2015 and also took out two loans to purchase cars.[13]
[13] ts 29, 33, 52.
In 2018 the appellant's partner fell pregnant and had to cease working. A consequential reduction in income, together with medical costs in connection with the birth of their child, resulted in financial difficulties. Those difficulties were compounded by a large mortgage and other debts.[14]
[14] ts 52 - 53.
The appellant told a friend who trained at the same gym about his financial difficulties. The friend offered the appellant employment filling vials with testosterone for sale. The friend was running a business selling steroids and was storing the drugs at his home and at a storage unit. The appellant agreed to do the work and was initially paid 50 cents per vial. This equated to about $100 to $120 per hour. He worked one to two days per week for about two to three months. The work was more lucrative than the appellant's job in IT, so he resigned from that job and commenced working for his friend on a full-time basis.[15]
[15] ts 30, 53.
In about August 2020 the appellant's friend told the appellant that, together with others who were unidentified, he had set up the Ozgear website. The friend asked whether the appellant was interested in working full-time for this business. The friend said that it would be necessary to rent a house for the business and wanted the appellant to act as a storeman, with responsibility for packaging and filling orders that were placed on the Ozgear website. The appellant agreed to the proposal and rented the house in Bertram in his name for this purpose. He then worked in the agreed role from August 2020 until his arrest in March 2021. He earned between $2,000 and $3,000 per week.[16]
[16] ts 50 - 51, 53 - 54.
It was accepted on behalf of the appellant that his motivation was financial. It was suggested that his moral compass had been skewed by the financial stress that he and his partner were suffering. The appellant also rationalised his involvement on the basis that steroids were not as harmful as illicit drugs and that their purpose was to help people look better, though he appreciated that the operation was illegal. He had body image issues himself and used steroids in training. The steroids found at the appellant's home were for his personal use (and this was accepted by the prosecution).[17]
[17] ts 54 - 56.
The cash found at the appellant's house was given to him by his employer. A small portion of that money was his but he claimed that the majority of it was given to him to pay the rent on the Bertram house.[18]
[18] ts 56.
Prior to his arrest the appellant had decided to wind up his involvement with the steroid business. He had decided to sell his home to reduce the financial pressure. He was still attending the Bertram house at that time to train a new storeman.[19]
[19] ts 56.
After his arrest, upon being released on bail, the appellant obtained employment in the real estate industry. His employer was aware of the charges and provided a favourable character reference and indicated a willingness to employ the appellant in the future.[20]
[20] ts 63, 65.
The appellant's partner remained supportive of the appellant, but intended to relocate back to New Zealand with their child in the event that he was sentenced to imprisonment. This was in recognition that deportation would be inevitable after a prison term. However, the fact that the appellant's partner and his child would be moving to New Zealand would increase his hardship in custody.[21]
[21] ts 34 - 35.
The appellant wrote a letter to the court expressing his remorse for the offences. He stated that he was deeply embarrassed and ashamed of his actions.[22] He said that agreeing to do work packaging the steroids occurred in circumstances where he and his partner had mounting debts, but said that it was 'the biggest mistake of his life'. He said that he was now motivated to do the best he could for his partner and child but appreciated that he had broken the law and must suffer the consequences.[23] There were also character references from members of his family and former employers who were supportive of him.[24]
[22] ts 64.
[23] WAB 193 - 194.
[24] ts 65 - 66.
According to the psychological report the appellant has no history of substance abuse problems, mental health issues or antisocial behaviour. His offending is indicative of poor judgment, lack of consequential thinking, risk-taking behaviour and willingness to act illegally for financial gain. Whilst he has some treatment needs in relation to decision making and consequential thinking, there are many protective factors in his life and he is unlikely to be given priority in departmental treatment programs.[25]
[25] ts 63 - 64.
The appellant has no prior criminal record of any relevance, either in Australia or New Zealand.[26]
[26] ts 36.
Defence submissions on sentence
Defence counsel submitted that there were four mitigating factors in the appellant's favour. The first of these was the pleas of guilty. Although the prosecution case was strong, the pleas were entered at an early stage and prior to the appellant knowing the strength of the case against him. Counsel submitted that in these circumstances the pleas were deserving of the maximum, or close to the maximum, discount available under s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act).[27]
[27] ts 35 - 36.
The second factor was remorse. Counsel submitted that the appellant was genuinely remorseful and this was supported by his letter to the court and the character references.[28]
[28] ts 36.
The third factor was prior good character. The appellant had no criminal record, and all the evidence was that the offences were an aberration.[29]
[29] ts 36.
The fourth factor was rehabilitation. Counsel submitted that the appellant's prospects of rehabilitation were good and that his risk of re‑offending was low.[30]
[30] ts 36.
State submissions on sentence
The State submitted that the illegal business was sophisticated. It was a large-scale operation with an average of 200 packages per week being posted. This represented 200 people per week who were obtaining steroids illegally, that is, steroids for which they did not have prescriptions.[31]
[31] ts 36 - 37.
The State accepted that the appellant was not the mastermind of the business and was not making a direct profit from the sale of drugs. However, he played an integral role in filling the orders and packaging them up for posting. The actual postage was usually done by another person, although occasionally it was done by the appellant. The appellant was the lessee of the Bertram house and leased post office boxes using driver's licences in false names, though it was accepted that this may have been more extensive than he had initially anticipated.[32]
[32] ts 36 - 37.
The State submitted that the appellant was financially motivated. The prosecutor noted that the appellant had told the pre‑sentence report author that he had commenced on $2,000 per week but this had increased to $3,000 per week and that he also got bonuses for completing orders on time or in advance.[33]
[33] ts 37 - 38.
The State submitted that the illegal activity may have remained undetected but for the purchase and use of large quantities of Australia Post parcels. The aggravating factors were said to be the large volume of drugs located, the variety of those drugs, the value of the drugs (being approximately $1 million), the sophistication of the operation and the commercial nature of that operation.[34]
[34] WAB 129.
The State accepted that the appellant's guilty pleas were entered at the first reasonable opportunity, though the prosecution case was strong. The delay between the entering of the pleas and sentencing was due to the time needed to undertake chemical testing of the drugs.[35]
[35] ts 27.
The use and effect of steroids
In response to a request by the sentencing judge for information regarding the harm caused by steroids, the State provided a printout from Health Direct, a federal government website, regarding the nature, uses and effects of steroids. This information was provided because, as the prosecutor acknowledged, 'steroids are not often a matter that comes before the court'.[36] No objection to the printout was raised.[37]
[36] ts 38.
[37] ts 43.
The State submitted that whilst steroids can be possessed for lawful purposes, that does not mean that they are not capable of harm when abused. It was accepted that the illegal distribution of steroids does not come before the courts often and there were few comparable cases. The prosecutor said that the most relevant issue was how prevalent an illicit drug is and suggested that illegal steroids are widespread and not easily detected.[38]
[38] ts 38 - 40.
The printout is relevant because it formed part of the agreed basis on which the appellant was sentenced. However, it should be noted that there was no independent expert evidence and no findings based on such evidence. In those circumstances the relevance of the information may be limited to this case.
The Health Direct printout contained the following information:[39]
[39] WAB 206 - 208.
What are anabolic steroids?
Anabolic steroids are synthetic (man-made) drugs that are similar to the male hormone testosterone. Their proper name is anabolic-androgenic steroids (AAS). They are swallowed as tablets, applied as a gel, or injected into a muscle.
Anabolic steroids are different from corticosteroids, which are medicines used to treat conditions such as arthritis or asthma. Both are sometimes referred to simply as 'steroids'.
Anabolic steroids can be used for medical purposes, but people also sometimes take them to improve their performance in sport, their appearance or their body image.
When used for performance, anabolic steroids are classed as performance and image-enhancing drugs. Users sometimes call them 'roids', 'gear' or 'juice'.
What are anabolic steroids used for?
A doctor can prescribe anabolic steroids to treat hormonal problems, such as:
§delayed puberty in males
§low levels of testosterone, particularly in men with testicular disease or pituitary failure
Anabolic steroids can also be prescribed to replace muscle lost because of conditions such as cancer or AIDS, or to treat types of breast cancer and anaemia.
Some competitive athletes, body builders and people who need strong muscles for their work take anabolic steroids to:
§build lean muscle
§increase strength and endurance
§reduce recovery time following an injury
Young men and women who are worried about their body image may take anabolic steroids because the drugs can help to reduce body fat.
What are the side effects of anabolic steroids?
The short-term side effects of anabolic steroid use include:
§water retention and bloating
§fatigue and sleeping problems
§irritability, mood swings or aggression
§changes in sex drive
§male pattern baldness (in both men and women)
§acne
Women may also experience:
§male pattern hair growth including facial hair
§decreased breast size
§irregular periods
§deeper voice
§enlarged clitoris
§effects on an unborn daughter if the steroids are used during or before pregnancy
Men may also experience:
§shrunken testicles and decreased sperm production
§reduced sperm count and infertility
§developing breasts (gynecomastia)
§an involuntary erection that won't go away (priapism)
§prostate problems
The long-term side effects of anabolic steroids include:
§abnormal liver function
§high blood pressure and high cholesterol
§heart attack and stroke
§kidney or prostate cancer
§depression
§stunted growth
§premature bone and skin ageing
People who misuse anabolic steroids (for performance or weight-loss purposes) are more likely to experience these side effects because they are often taken in doses that are higher than medical doses. They might also experience nerve damage from injecting and injuries from excessively intense gym workouts.
Using anabolic steroids can lead to addiction because people rely on the drugs for confidence and self-esteem.
Are anabolic steroids legal in Australia?
It is only legal to use anabolic steroids in Australia if they have been prescribed by a doctor for proper medical reasons. It is against the law to keep, make, use, sell or give away, or to inject someone else with anabolic steroids.
The penalties for supplying anabolic steroids are different in each state and territory. In some states, they are classified in the same drug category as heroin or ice (crystal meth), and suppliers can face imprisonment.
Anabolic steroids are banned in competitive sport. Using them can result in fines, suspensions or permanent bans.
Can steroids be used safely?
Anabolic steroids cannot be used safely except under a doctor's supervision. However, if you have chosen to use anabolic steroids for non-medical purposes, you might be able to reduce the risk of side effects if you:
§lower the dose, or limit use to a few weeks at a time, to give your body a rest
§never inject anabolic steroids directly into the same area of your body
§do not inject them into the biceps, calf or pectoral muscles (to avoid nerve damage)
§always use clean needles to reduce the risk of HIV, hepatitis B and hepatitis C, and other blood‑borne viruses - never share needles with other people
§do not combine anabolic steroids with caffeine or alcohol (which remove water from the body), or with other drugs such as amphetamines
The prosecutor submitted that there is no hierarchy of drugs in the MDA, except for methylamphetamine which has a higher maximum penalty, and cannabis which has a lower one. The prosecutor referred to ENR v The State of Western Australia[40] and The State of Western Australia v Higgins[41] in support of the proposition that a harm-based assessment for a drug was not necessary when sentencing an offender for an offence contrary to s 6 of the MDA. Although a drug's relative harm to users was not a mandatory irrelevant consideration, ordinarily it was not a factor to which much weight could or should be given. The prosecutor submitted that it was not necessary for the sentencing judge to make any findings about the harm that may result from the misuse of anabolic steroids. It was sufficient that the drugs in this case were prohibited drugs. The prosecutor noted that in Monisse v The State of Western Australia,[42] a case involving ketamine, this court noted that the fact that a drug has a lawful purpose does not support a finding that when abused it is not capable of harm.[43]
[40] ENR v The State of Western Australia [2018] WASCA 9 [15] - [17].
[41] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.
[42] Monisse v The State of Western Australia [2021] WASCA 52.
[43] ts 39 - 40.
Sentencing remarks
The learned sentencing judge gave detailed sentencing remarks. After setting out the maximum penalty for the offences and summarising the facts and the personal circumstances of the appellant, her Honour turned to an assessment of the appellant's role. She said:[44]
Now, undoubtedly there are a number of people behind the setting-up of this operation. I accept that you played no role in the setting-up of the website. I'm told that, other than an IT person, there was also a customer services person and a manager.
And your role, as I say, was effectively the storeman. But you played a significant and active role in ensuring that the distribution of the steroids from the orders that came through the website were filled. And even though I accept that you played no role in the setting-up of this enterprise, and you came into what was clearly a sophisticated set-up through the website, your role, as I say, was a significant one. And without you doing what you did, the operation would not have functioned.
I'm told that other than being remunerated for your role, you were also provided steroids for your own personal use, and you were trained in other aspects of the role. You told the psychologist that at all times you were well aware that the operation was illegal, but that you were repeatedly assured that the substances were only steroids, and you were told that many others involved in similar operations had never been charged.
Your offending was entirely motivated in the circumstances of the financially perilous position that you and your partner had gotten yourselves into. But up until that point, I accept that you were an otherwise completely law-abiding young man who was trying to raise a young family.
[44] ts 54 - 55.
Her Honour then turned to the question of the value of the drugs. She noted that the estimates of value were between $521,779 and $823,807, depending on whether the drugs were sold in vials or in bulk. She said that on any view the value was significant.[45]
[45] ts 55.
Her Honour said that this was a very serious example of this type of offending, in that it involved the sale and supply of extremely large quantities of steroids into the community.[46]
[46] ts 55.
Her Honour then returned to the appellant's role and said:[47]
Whilst it wasn't your operation - as I've said, I've accepted that you didn't set up the website - the business clearly depended on you playing a central role in the business. And your role was to buy the Post packages. To rent the premises at Bertram Street [sic] in connection with this operation.
In allowing your photo to be used in the creation of the false [driver's] licences which you knew would be used to take out rentals of Australia Post boxes in connection with this operation. In packaging the amounts of steroids, both liquid and tablet form, in accordance with the orders you received, and to package them ready for collection on the whole by someone else who would then post those orders to consumers.
[47] ts 55 - 56.
Her Honour then summarised the factors that made the offending serious. She referred to the following:[48]
1.the large quantity of steroids;
2.the substantial value of the drugs;
3.that the operation was sophisticated and large in scale;
4.that the appellant engaged in an ongoing course of conduct between August 2020 and March 2021;
5.that the appellant's motivation was commercial gain;
6.the variety of steroids that were located; and
7.that the commercial operation distributed significant quantities of the drugs into the community over the period time that the appellant was involved.
[48] ts 56.
Her Honour noted that it had been put on the appellant's behalf that at the time of his arrest he had planned to get out of the business and move back to New Zealand. Her Honour accepted this and took it into account, but said that the appellant's involvement remained extremely serious.[49]
[49] ts 56.
Her Honour then turned to consider the steroids and cash found at the appellant's home in Wellard. She noted that it was accepted by the State that the drugs found at that address were not intended to be sold as part of the commercial enterprise. Those steroids found at the appellant's home were for his personal use and, possibly, for sharing with a limited number of others. As regards the cash, the appellant had claimed that only a small portion of it was his and that the majority was given to him to pay rent on the Bertram house.[50]
[50] ts 56.
Her Honour said that in approaching sentencing it was necessary for her to set out her thinking in respect of four matters. First, her approach to the quantity or amount of prohibited drugs involved. Secondly, her approach to the lack of evidence about the purity of the drugs. Thirdly, how she had dealt with the issue of the harm caused by steroids. Fourthly, the basis on which she proposed to sentence the appellant on counts 13 ‑ 18 inclusive.[51]
[51] ts 57 - 61.
As to the first matter, her Honour noted that in some counts the quantity of steroids was referred to in millilitres or litres, in others in terms of the number of tablets (which were converted into grams). Her Honour referred to the general sentencing considerations relevant when dealing with drug offences, including that the weight of the drugs in question is not generally the chief factor to be taken into account although it is a matter of importance. Her Honour noted that sch V div 2 and sch VII div 2 of the MDA sets out the weights of the individual steroids that give rise to the presumption to sell or supply to others and the weights that give rise to the requirement to make a drug trafficker declaration. She then said:[52]
So in approaching this sentencing exercise, it was necessary for me to understand, in the language used by the Misuse of Drugs Act, where your offending sits when compared to the amounts that give rise to the presumption to sell and supply, and the amounts that give rise to drug trafficking. And, as I've indicated, those amounts are expressed in grams.
And I accept that there were valid reasons why the State was unable to translate the weights of the steroids from volume measurements, so millilitres and litres, into grams and kilograms, which is obviously the language of the relevant schedules of the Misuse of Drugs Act. And those reasons are set out in the sentencing submissions that were made before me on 31 March of this year, and I don't need to repeat them but I incorporate those submissions.
Ultimately both parties agreed that no miscarriage of justice would be occasioned to either party, so either to you or to the State, if I were to roughly - and it's a very rough equation - if I were to roughly equate a millilitre with a gram so that I can assess - or I can use that in part, and it's only in part, to assess the seriousness of your offending within the parameters of the Misuse of Drugs Act and the language of the Misuse of Drugs Act. And I consider that they are my parameters.
I accept that the weights of the drugs are not the chief factor in determining offence seriousness. And the State has said to me, and I accept this submission, that irrespective of whether the steroids were expressed in millilitres or grams, the offence seriousness here, Mr Childs, is determined by the sheer scale of the enterprise, the number of vials located by police, nearly 6,993, containing steroids.
And it's not really about the weight of the drugs specifically but about the manner in which the drugs were to be distributed, and the scale of the operation, and the number of the vials and tablets that were found as a whole. And so I accept the submission that the State has made to me in that respect.
The State says to me that the harm to the community and the seriousness of your offending is to be assessed by the sheer number and volume of the prohibited drugs that were to be distributed into the community.
And so I'm guided in my assessment of the seriousness of your offending to the scale of the enterprise as a whole, the number of vials or tablets, and I've also had regard to the weights when doing the comparative exercise of how much of a particular drug is involved when looking at Schedules 5 and 7 of Division 2 of the Misuse of Drugs Act. So that's how I've approached my assessment of the seriousness of your offending.
[52] ts 58 - 59.
As to purity, her Honour noted that there was no purity analysis for the drugs in this case. In those circumstances it was not possible to draw an inference that the appellant may have been closer to the source or that the drugs would have been cut down for further distribution.[53]
[53] ts 59.
As to the harmfulness of steroids, her Honour noted that whilst there was no expert evidence before her as to the harm caused by the illicit sale and supply of steroids into the community, she had been provided with the Health Direct printout. In this regard her Honour said:[54]
And both the State and your counsel agree that the side-effects listed were accurate, and that the document provides that the short-term side‑effects of steroid use include things like water retention, bloating, fatigue, sleeping problems, irritability, mood swings, aggression, changes in sex drive, male pattern baldness in both men and women, acne, and in men shrunken testicles, decreased sperm production, reduced sperm count, infertility amongst other issues.
And the long-term side-effects of anabolic steroids including abnormal liver function, high blood pressure, high cholesterol, heart attack, stroke, kidney or prostate cancer, depression, stunted growth, premature bone and skin aging. I note there's no indication before me of at what doses or over what period of time those side-effects occur. And I simply place it on the transcript that I've taken those matters into account.
[54] ts 60.
Her Honour then referred to the decisions of this court in Higgins[55] and the High Court in Adams v The Queen[56] and said that she had approached the sentencing in this case on the basis that a drug's relative harm to users is not a factor to which much weight should or could be given. This conclusion was reinforced by the fact that she did not have any expert evidence before her as to relative harm. The relative harm of steroids as compared to other prohibited drugs was not a relevant consideration in circumstances where Parliament had determined that steroids are prohibited drugs and had expressly provided that possession of steroids with intent to sell or supply to others carries with it a maximum penalty of 25 years' imprisonment and/or a $100,000 fine. Her Honour said that this was a statutory reflection of the seriousness of steroids and that this was how she should approach the question.[57]
[55] Higgins [102].
[56] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 [9] - [12].
[57] ts 60 - 61.
As to the fourth matter, her Honour accepted that the steroids found at the appellant's house were for his personal use. She said that she intended to sentence the appellant on counts 13 ‑ 18 on the basis there was no commercial element to the possession of those drugs that were found at his home.[58]
[58] ts 61 - 62.
Her Honour considered that there were no relevant comparable cases. She then turned to the appellant's personal circumstances. She noted the appellant's prior good character and favourable character references. She accepted that the appellant was a hard working, caring family man who had lost his moral compass. She accepted that he entered his guilty pleas at the first reasonable opportunity and allowed a discount of 25% pursuant to s 9AA of the Sentencing Act. She accepted that the appellant was remorseful and that this was confirmed by the character references.[59]
[59] ts 62 - 67.
Her Honour then imposed the following sentences:[60]
[60] ts 68 - 69.
Count 12 years' imprisonment;
Count 218 months' imprisonment;
Count 38 years 6 months' imprisonment;
Count 44 years 6 months' imprisonment;
Count 52 years 6 months' imprisonment;
Count 63 years 6 months' imprisonment;
Count 72 years 2 months' imprisonment;
Count 88 months' imprisonment;
Count 93 years 6 months' imprisonment;
Count 103 years 10 months' imprisonment;
Count 113 months' imprisonment;
Count 1218 months' imprisonment;
Count 133 months' imprisonment;
Count 141 month' imprisonment;
Count 1514 months' imprisonment;
Count 163 months' imprisonment;
Count 173 months' imprisonment; and
Count 1812 months' imprisonment.
The sentence on count 9 was reduced from 4 years' imprisonment for totality reasons. Her Honour said that in her view the appropriate total effective sentence was 12 years' imprisonment and explained how she achieved that figure:[61]
So [in] my view, a total effective sentence of 12 years' imprisonment is the appropriate sentence. I achieved that in the following way. I order that count 3 be the head sentence, that is the term of eight and a half years. I order that the term of four years in respect of count 9 be reduced for totality reasons to three and a half years and I order that count 4 be served cumulatively upon count 3.
All other sentences are to run concurrently with counts 3 and 4 and concurrently with each other.
So the total effective sentence is 12 years' imprisonment.
The term is backdated to commence on 5 March 2022. You are eligible for parole. The minimum time that you must serve in custody, Mr Childs, is 10 years from 5 March 2022.
[61] ts 69.
Grounds of appeal
The grounds of appeal are as follows:
1.The sentencing judge erred by imposing a sentence on count 3 on the indictment which was manifestly excessive, particularly having regard to the appellant's plea of guilty and favourable antecedents, including his low risk of offending.
2.The sentencing judge erred by imposing a total effective sentence that infringed the first limb of the totality principle, in that it did not bear a proper relationship to the overall criminality of the offending, particularly in regard to the appellant's pleas of guilty and favourable antecedents, including his low risk of offending.
Appellant's submissions
As regards ground 1 the appellant submits that there are no comparable cases involving steroids. This absence of sentencing comparators permits this court to conclude that there is less evidence that steroids have a widespread harmful impact on the community than other drugs that more commonly come before the courts or whose users commonly come before the courts to be sentenced for crimes associated with their illicit use.[62]
[62] WAB 14 - 15.
Whilst the appellant accepts that the MDA is not structured on the basis of relative harm, some comparative assessment of seriousness can be made by reference to the thresholds prescribed by Parliament in the schedules to the MDA. In those schedules, the threshold amount for steroids is 25 times the threshold amounts for amphetamine, methylamphetamine, cocaine, MDMA and heroin. It is submitted that the seriousness of the offences in this case, insofar as weight is a factor in assessing that seriousness, can be compared (at least approximately) to the seriousness of offences involving those other drugs (acknowledging that since 18 September 2017 methylamphetamine has been subject to a higher maximum penalty where a trafficable quantity is involved). In essence, the appellant submits that when this factor is taken into account the sentencing judge made an error in determining the seriousness of this offence and that error resulted in a sentence on count 3 that was manifestly excessive.[63]
[63] WAB 15 - 16.
It is submitted that the same considerations apply to the total effective sentence of 12 years' imprisonment. The total quantity of drugs the subject of counts 1 - 11, calculated by weight and divided by 25 results in a conclusion that the equivalent comparable quantity of amphetamine, cocaine, MDMA or heroin would be 3.3 kg. The appellant submits that the starting point required to reach a 12‑year total effective sentence, taking into account the discount of 25% for the pleas of guilty, was at least 16 years' imprisonment. The appellant's other mitigating factors mean that the actual starting point must have been significantly higher than that.[64]
[64] WAB 17.
Given that the appellant was not a principal in the drug dealing enterprise, that he had significant mitigating factors and that his risk of reoffending was low, it is submitted that the 12‑year total effective sentence imposed on him does not bear a proper relationship to the overall criminality involved in his offending.[65]
[65] WAB 17.
Respondent's submissions
The respondent submits that there is no basis to embark upon an assessment of the relative harm of steroids as compared to other serious drugs. The onus of establishing that steroids are less harmful than other drugs fell upon the appellant and no attempt to adduce evidence in that regard was made at the hearing before the sentencing judge. There is, therefore, no basis upon which this court can make such as assessment.[66]
[66] WAB 22 - 23.
In any event, the respondent says that such an assessment is not relevant. Ordinarily the relative harm to users of different serious drugs is not a factor to which much weight should, or can, be given. The approach taken by the sentencing judge in this regard is in accordance with accepted authority.[67] Further, the respondent submits that there may be differences in the characteristics of different steroids, and it would be wrong to generalise that they all cause the same kinds of harm and in equal measure.[68]
[67] See Monisse [74] - [76] and Adams [9] - [12].
[68] WAB 23.
The respondent submits that the social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers.[69] The respondent also refers to the decision in Yanko v The Queen[70] in which it was accepted that anabolic steroids are not only deleterious drugs but they, in the context of unlawful possession for sale or supply, are punishable 'very severely'.[71]
[69] Adams [9].
[70] Yanko v The Queen (Unreported, WASCA, Library No 960030, 23 January 1996) [4].
[71] WAB 23 - 24.
The respondent submits that the appellant's approach cuts across the legislative scheme in that Parliament has not distinguished between the relative seriousness of offences concerning steroids and other prohibited drugs (apart from cannabis and a trafficable quantity of methylamphetamine) in determining the maximum penalty for an offence against s 6(1)(a) of the MDA. The placing of drugs in particular categories is a policy‑based legislative decision rather than a classification based upon a scientifically‑based scale of harm. The sale or supply of a quantity of any serious category drug should be treated as equally grave as the sale or supply of any other drugs in the same category. The fact that dealings in different drugs carry the same maximum penalties says no more than that the legislature envisaged that in each case the circumstances of that particular offending might be such as to justify a sentence of imprisonment of 25 years. Serious category drug offences prima facie warrant the same sentence starting point before the circumstances of the offending, including all aggravating and mitigating factors, are considered.[72]
[72] WAB 24 - 25.
The respondent submits that having regard to the quantity of steroids in this case, the sophistication of the enterprise, the role of the appellant in that enterprise, his commercial motivation and his personal circumstances, the individual sentence imposed on count 3 was not manifestly excessive. Nor was the total effective sentence of 12 years' imprisonment disproportionate to the overall criminality.[73]
[73] WAB 27 - 43.
Relevant legal principles
The following general principles concerning appeals against sentence are well established:[74]
1.Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
2.In order to determine whether a sentence for an individual sentence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standard of sentencing customarily imposed with respect to it, the place that the criminality occupies on the seriousness of crimes of that type, and the offender's personal circumstances.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
4.The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and with regard to all relevant facts and circumstances, including those referrable to the offender personally, or relevant sentencing factors, and the total effective sentences imposed in comparable cases. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.
5.Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[74] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general principles applicable for sentencing for serious drug offences are also well established. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.
The MDA does not create a hierarchy of drugs based upon their level of harm. The approach taken by the legislature in the MDA is to provide that all prohibited drugs will attract the same maximum penalty (with the exception of cannabis and trafficable quantities of methylamphetamine). This does not mean, however, that all prohibited drugs are necessarily the same. The relative harm to users of different prohibited drugs is not an irrelevant consideration. Nevertheless, ordinarily the relative harm to users of different prohibited drugs is not a factor to which much weight should, or can, be given.[75] The reasons for this were explained by Steytler P in Higgins:[76]
As the High Court pointed out in Adams, harm to users and society is a protean concept, with the social evils of trading in illicit drugs extending far beyond the physical consequences to individual consumers. The effect of a drug on a user is not one on health only. As the majority pointed out in Pidoto, drugs affect the user's behaviour and social interactions in a wide variety of ways. Those, in turn, have the capacity to affect persons around the user, and even the general community, in a wide variety of ways having different social and economic costs that are not easily measured, at least in the absence of evidence (which will alter as knowledge and circumstances alter).
Even harm to a user is not easy to assess. As the majority in Pidoto said ([20] ‑ [22]), this might encompass such matters as the likelihood and speed of dependency, the difficulty involved in breaking that dependency, physical and psychological harm (an area that is constantly being re‑assessed as new research becomes available), the social effects of dependency and the probable behaviour of users while under the influence of the drug.
It is important also to bear in mind that harm will vary with the strength of individual doses, something that will not always be known to the user, or even the dealer. Moreover, additives with which drugs are mixed may or may not themselves be toxic. Whether or not they are and, if so, to what extent, may also not be known to the user, or even the dealer. Also, the experience of the courts has been, and evidence in this case suggests, that there is an increasing tendency towards poly‑drug use. If users can be persuaded to try one drug, they can often be persuaded to try another. Illicit drugs are sometimes taken to counteract the after effects of other illicit drugs. Dealers in drugs may deal in a range of different drugs, depending upon supply and demand.
Consequently, when regard is had to the factors that I have identified, in particular the uniform maximum penalties contemplated by the legislature (subject to the limited exceptions specified), it is difficult to imagine that the legislature could have intended relative harm to be a matter of much significance for sentencing purposes. Even if the legislature had no opinion on that issue, for the reasons I have given it is difficult to see how the courts could make any reliable assessment of relative harm without the benefit of extensive evidence. Moreover, the assessment would endure only for so long as the evidence remained unchanged. The primary objective underpinning the legislation is undoubtedly that of deterring those who trade in drugs and that consideration has, as I have stressed, always been accorded the greatest weight when sentencing drug offenders.
In the end, as I have earlier remarked, the real question is what sentence should be imposed by the court in respect of the particular offence before it, having regard to the maximum penalty provided for that offence and taking into account the circumstances of the offence (including prevalence) and of the offender and the need to deter those who traffic in any form of illicit drugs. (footnotes omitted)
[75] Higgins [102].
[76] Higgins [103] - [107].
As we have observed, this is not to say that the potential harm caused by a particular drug is irrelevant. It simply means that, particularly in light of the protean nature of 'harm', it is generally not open to compare the relative harm caused by different drugs. In this case, there is no reason to doubt that, notwithstanding that steroids can have legitimate therapeutic uses, when misused they can have significant physical and psychological adverse health effects.[77] Nevertheless, it remains open to identify some distinctions between steroids and other prohibited drugs, in terms of the quantities involved, their prevalence and, insofar as it is possible, the nature of the harm caused by them.
[77] Scott v The King [2023] WASCA 14 [51], a case that is not otherwise relevant because it involved the federal offence of importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth).
For example, the MDA does provide that different quantities of prohibited drugs will determine whether there is a presumption of an intent to sell or supply (sch III), whether an offence should be dealt with in the Magistrates Court or the District Court (sch V) and whether a drug trafficker declaration should be made (sch VII). The quantities stipulated for these purposes differ according to the type of drug. In the case of steroids of the types involved in this case, those quantities are, respectively, 50 g, 100 g and 700 g. For methylamphetamine and cocaine those quantities are 2 g, 4 g and 28 g. These prescribed quantities do not affect the maximum penalties applicable for an offence (except in the case of trafficable quantities of methylamphetamine).
In Higgins Steytler P referred to the quantities prescribed in Schedule III, V and VII of the MDA. His Honour referred to the relevant second reading speeches and noted that the trafficable quantities in Schedule VII were intended to represent a street value of approximately $15,000, which was said to be an indication that large scale drug activities were being carried out from which substantial profits would be derived. As to Schedule V, which prescribes the quantities that raise the presumption of an intent to sell or supply, his Honour said:[78]
In each case the prescribed amounts were arrived at after consultation with the Department of Health and Medical Services and the Government Health laboratories. They also accord substantially with recommendations of a 1976 joint Police and Health Minister's Conference: Parliamentary Debates, above, 2363. In his second reading speech (Parliamentary Debates, above, 2363), the Minister said that the provisions of the Bill were in line with the spirit of some of the recommendations made by the Australian Royal Commission of Inquiry into Drugs.
[78] Higgins [85].
In Higgins[79] Steytler P noted that there are significant differences between the MDA and the Victorian and Commonwealth legislation considered in Pidoto and Adams. In particular, the legislation from those other jurisdictions sets a range of penalties that are determined by reference to specified quantities of different drugs, whereas the MDA provides for uniform maximum penalties and does not distinguish between the different quantities of various drugs (except in the case of cannabis, and, more recently, trafficable quantities of methylamphetamine). However, the inclusion of several categories of possible offending under one provision imposing a single maximum penalty carries no implication that each category is as serious as another.[80] As his Honour said '[t]he fact that dealings in different drugs carry the same maximum penalty says no more, of itself, than that, in each case, the circumstances of the offending might be such as to justify a sentence of imprisonment for 25 years'.[81]
[79] Higgins [90] - [93].
[80] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452.
[81] Higgins [92].
In Higgins the issue was whether relative harm was a mandatory irrelevant consideration in sentencing under the MDA. Steytler P held that it was not irrelevant, but that it was a factor to which little weight could be given for the reasons referred to at [74]. Thus, the schedules were referred to only in the context of the issue of relative harm. It was unnecessary in that case to decide whether the schedules were relevant in themselves in determining the significance of a quantity of prohibited drugs the subject of an offence under the MDA.
In R v Stamatov[82] the Queensland Court of Appeal considered whether a distinction should be made between steroids and other dangerous drugs under the relevant Queensland drug law. Applegarth J (with whom Gotterson JA and Atkinson J agreed) concluded that it was not permissible to distinguish between steroids and other drugs, principally because to do so would be contrary to a legislative intent expressed in that State when the relevant statute was amended to include steroids as schedule 1 drugs. His Honour also considered whether a sentencing judge should embark on the task of comparing the relative harm of drugs in the same schedule. He concluded that this task should rarely, if ever, be embarked on due to the imprecision of what is meant by harm and the risk that such an inquiry will run counter to the legislative intent that all drugs in the same category would be treated in the same way.[83]
[82] R v Stamatov [2017] QCA 158; [2018] 2 Qd R 1.
[83]Stamatov [88] - [91].
Stamatov does not assist in this case, for two reasons. First, the relevant statute in Queensland is differently constructed. Secondly, the interpretation of the statute in that case was influenced by secondary materials that are not relevant in the present case. In any event, to the extent that Stamatov is inconsistent with Higgins, it is the latter case, which deals with the MDA and, as decision of this court, that is relevant.
In R v Roach[84] the Queensland Court of Appeal considered a different, though related, argument. In that case the appellant sought to rely on a distinction drawn in the relevant legislation between the quantity of steroids required to constitute a circumstance of aggravation as opposed to the relatively smaller quantity required for this purpose for other drugs, in particular methylamphetamine. Brown J (with whom Morrison and Philippides JJA agreed) concluded that in determining the seriousness of a trafficking offence a broad range of factors are relevant and the court is not confined to considering the quantity or value of the drugs. The difference in quantities specified as being an aggravating circumstance was said to give some guidance as to the relativity between drugs, but did not reflect a legislative intent that quantity and value are the principal features to be considered in assessing the scale of trafficking.[85]
[84] R v Roach [2017] QCA 240.
[85] Roach [49] - [50].
Again, Roach must be approached with a degree of caution given the different scheme of the MDA to the relevant legislation in Queensland. In particular, the MDA does not contain any provision specifying that particular quantities of a drug will constitute a circumstance of aggravation. Nonetheless, the case provides some support for a conclusion that the quantities prescribed in the schedules to the MDA are relevant, but not determinative, in assessing the seriousness of a quantity of a particular drug.
Ground 1 - the merits
The maximum penalty for an offence of being in possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both (except in the case of cannabis or a trafficable quantity of methylamphetamine).
The seriousness of count 3 must be assessed having regard to the large quantity of testosterone, the estimated value of the drug, the appellant's financial motivation and his significant role in a criminal enterprise that was responsible for retailing steroids to consumers. His role was not brief, rather it continued over a period of several months.
The learned sentencing judge clearly gave careful consideration to all of the relevant factors in assessing the seriousness of the appellant's offending and the sentencing exercise in this case was clearly a difficult one. Her Honour was faced with a lack of any meaningful comparable cases and, as will be apparent, while her Honour requested further information from the parties, that which was provided was lacking in a number of respects. Nevertheless, the difficulty of that sentencing task does not prevent this court from concluding that the ultimate outcome was in error.
The purpose of making an assessment of the seriousness of a particular offence is to place it within the range of conduct covered by the relevant statutory provision. This reflects that sentencing is a discretionary exercise but that the discretion must be guided by factors such as the relative seriousness of the offence in order to ensure that penalties imposed are proportional and consistent. In this regard it is important to appreciate that the offence of being in possession of a prohibited drug with intent to sell or supply covers, as is reflected in reported cases, conduct ranging from the possession of relatively small quantities of drugs worth in the hundreds of dollars to possession of hundreds of kilograms (or even tonnes) of prohibited drugs worth in the millions of dollars.
The quantity of drugs is not the chief factor, but it is a relevant one. The quantity of steroids involved in this case was, objectively, large. However, it is not a simple matter of drawing a conclusion from that as to the relative seriousness of this offence. The fact that the drugs involved were steroids does not in itself diminish the seriousness of the offence; however, it cannot simply be assumed that a quantity of steroids has the same significance as the same quantity of another prohibited drug.
In determining the significance of the quantities of steroids involved in this case, it is relevant to consider the amounts provided for in the schedules to the MDA. The quantities that determine the court of trial, whether there is a presumption of an intent to sell or supply and whether a drug trafficker declaration is made, are significantly larger for steroids than for other common prohibited drugs.
The amounts prescribed by the schedules show that the legislature considered that relatively much larger quantities of steroids are required to justify an offence being dealt with in a higher court, or to result in it being presumed that a person possessing the steroids had an intention to sell or supply, or to require a declaration that the person is a drug trafficker. At least in these respects, quantities of steroids attract different consequences than similar quantities of other prohibited drugs. This is not to impose a hierarchy of harm, which the MDA does not do. It is simply to recognise that in assessing the seriousness of a particular offence the same quantity of different drugs will not necessarily be of equal seriousness.
The rationales for the different quantities prescribed in the schedules are not readily apparent. The secondary materials referred to in Higgins provide only broad indications in this regard. Schedule V, the amounts giving rise to a presumption of an intent to sell or supply, is based on information from health organisations. This may suggest that the quantities were set having regard to dose effect and the amounts unlikely to be possessed by an individual for personal use. Schedule VII, the amounts prescribed for the purposes of making a drug trafficker declaration, were apparently based on the street value that was indicative of a commercial enterprise. To the extent that anything useful can be drawn from this, it does tend to show that steroids do not equate to other drugs, such as methylamphetamine, as regards the amounts that are consistent with personal use and street value.
However, the appellant's submission that it is possible to conduct a comparison with cases involving, for example, methylamphetamine, by simply dividing the total quantity in this case by a factor of 25, cannot be accepted. That would be an overly simplistic approach. The quantities stipulated in the schedules of the MDA are only one factor that may be relevant in assessing the significance of the quantity of drugs possessed in a particular case. Nonetheless, the different amounts provided for in the schedules do mean that it is not possible to make an easy comparison between a case involving steroids, such as this, and the many cases that involve methylamphetamine and other similar drugs. For these reasons a description that the quantity of prohibited drugs here was large must be qualified by the fact that the drugs in question were anabolic steroids.
It is also relevant to take into account the nature of the harm that may be caused by the abuse of steroids. This should be distinguished from an assessment of the relative harm of different types of drugs. In this case there was some information regarding the harm that can be caused by steroids, in the form of the Health Direct printout, and the sentencing judge took that information into account. Clearly, misuse of anabolic steroids can have serious deleterious effects on the health and behaviour of users. But it must be said that the information provided was at a high level of generality. For example, there was no information as to the quantity of steroids, or the length of usage, likely to produce the adverse outcomes. Of course, it must also be accepted that the social impact of trading in illicit drugs extends beyond the physical consequences for individual consumers.[86]
[86] Adams [9].
It should also be noted that the submission by the prosecutor that unlawful use of steroids is widespread was unsupported by any evidence. The fact that this operation was on a significant scale does not in itself establish that offending of this type is common. The prevalence of an offence may justify a conclusion that harsher sentences are called for, particularly having regard to the importance of general and personal deterrence in regard to drug offences. The paucity of comparable cases counts against the suggestion that illegal trafficking of steroids is prevalent. In any event, more is required to prove prevalence than an assertion by the prosecutor.
There was also a suggestion that the variety of drugs involved was an aggravating factor. That may be accepted, but only with the qualification that all of the drugs were anabolic steroids. The criminal operation in this case did not extend to other types of dangerous drugs.
Turning to the role of the offender, the role that an offender plays in an illegal drug enterprise will usually be a significant factor in assessing the seriousness of the offending. Often analogies are drawn with the roles that people play in legitimate businesses. Thus, as here, there are references to a person being a storeman or an employee. Sometimes those analogies are strained by the fundamentally illegal nature of the enterprise. In this case, however, the enterprise had many of the features of a business ‑ there was a website that accepted orders from the public, there was a store house where the bulk steroids were kept and where orders were filled, and there was system for posting completed orders.
The appellant's role was aptly described as that of a storeman, though he also had other duties including renting the premises, purchasing postage parcels and filling orders. He was a significant part of the criminal enterprise and was plainly trusted by those who employed him. What is clear, however, is that he was not a principal of the business and did not share in the profits. As compared to the sums of money derived by other offenders who deal in illicit drugs, the appellant's financial reward was comparatively modest. It is also relevant that the appellant was driven by a need to solve the financial difficulties of he and his partner (difficulties that had arisen from their life circumstances and not from any other illegal activity). Thus, to say that the appellant had a financial motivation must also be seen in context.
As regards personal circumstances, these are usually of less significance with respect to drug offences given the importance of general deterrence, but they are not irrelevant. In the present case, the combined effect of the appellant's personal circumstances was deserving of real weight. He was truly a first offender, with no criminal convictions, and had a good work history. He has a supportive family, no substance abuse or mental health issues and excellent prospects for rehabilitation. The appellant pleaded guilty at the first reasonable opportunity and had genuine remorse for his offending.
As to comparable cases, the appellant submitted that there were no such cases involving steroids, whereas the respondent submitted that the sale or supply of steroids should be treated as equally grave as the sale or supply of other drugs attracting the same maximum penalty. The respondent suggested that the court would be assisted by comparable cases involving large quantities of other serious drugs and referred to cases involving multiple kilograms of methylamphetamine.[87] On the basis of these cases it was suggested that a sentence of 8 years and 6 months' imprisonment was within range.
[87] Zanon v The State of Western Australia [2016] WASCA 91; NG v The State of Western Australia [2017] WASCA 124; Mather v The State of Western Australia [2017] WASCA 148; MSO v The State of Western Australia [2015] WASCA 78; McGrath v The State of Western Australia[2021] WASCA 118.
The difficulties in drawing a comparison between this case and other cases involving a similar quantity of a different drug have been referred to earlier. It cannot be assumed that similar quantities of steroids and methylamphetamine will have the same significance in assessing the seriousness of an offence. Even if all other things are equal, it would be wrong to equate a commercial operation involving multiple kilograms of methylamphetamine with one involving multiple kilograms of steroids. To treat such offences as equally serious would obscure the real level of criminality involved in each offence.
Whilst there are some cases where offences under the MDA involving steroids form part of a larger course of offending,[88] there are few where the sentences for such offences have been the subject of specific consideration. The only cases identified where possession of anabolic steroids was a significant part of the offending were Yanko[89] and Farquhar,[90] co‑offenders who were dealt with 10 years apart after Farquhar returned from overseas. The offenders in those cases were charged with four counts of possessing anabolic steroids with intent to sell or supply, and also with cultivation of cannabis and offences of stealing relating to a significant car-stealing operation. The quantity of steroids was not identified, though there were four different types and the total value of the drugs seized was estimated to be around $45,000. Yanko had an obsession with body building and was a user of steroids, on which he had spent most of his money. With respect to the anabolic steroids Yanko was sentenced to 12 months' imprisonment on each count, to be served concurrently on each other but cumulatively on the sentences imposed for other offences. Those sentences are equivalent to sentences of 8 months imprisonment in post-transition terms. Farquhar was initially sentenced to higher terms for the same offences, but on appeal those terms were reduced to 8 months imprisonment on each count for parity reasons.
[88] For example, Higgins v The State of Western Australia [2019] WASCA 78.
[89] Yanko v The Queen (unreported, WASCA Library No 960030, 23 January 1996).
[90] Farquhar v The State of Western Australia [2005] WASCA 49.
Both the appellant and the respondent accept that Yanko and Farquhar are not useful comparators. That is plainly correct, not least due to the age of those cases and the apparently smaller size of the criminal operation involving steroids as compared to the operation in which the appellant was involved.
The absence of meaningful comparable cases does not mean that this court cannot determine whether a sentence is manifestly excessive. It simply means that there is an absence in respect of one of the factors relevant to that consideration. In those circumstances the court must make a determination based upon the other factors, including the maximum penalty, the circumstances of the offence and the personal circumstances of the offender.
In our view, as serious as this offence was, it is not comparable to the many cases involving methylamphetamine that relate to kilograms of that drug and often much greater amounts of money than this case. Having regard to the quantity and nature of the drug involved, the role of the appellant, the maximum penalty and the appellant's personal circumstances, including his early plea of guilty, prospects of rehabilitation and remorse, a sentence of 8 years' imprisonment on count 3 was plainly unreasonable or unjust. In coming to that view, we have taken into account that the severity of an individual sentence can be reduced by making other sentences concurrent.
Ground 2 - the merits
The same considerations inform the appellant's submissions in relation to the total effective sentence of 12 years' imprisonment. Whilst it is generally not practical to reverse engineer to a starting point in circumstances where there are mitigating factors other than the pleas of guilty, the appellant submits that a broad indication of the starting point can be determined. In this case that would indicate that a starting point somewhere in excess of 16 years. That is said to be indicative that the total sentence was disproportionate to the overall criminality, particularly having regard to the fact that the drugs involved were steroids.
In our view, for the reasons already stated, the fact that the drugs were steroids was relevant in assessing the seriousness of the offending. That applies as much to the total sentence as it does to the sentence imposed on count 3. Having regard to the whole of the offending, the maximum penalties and the appellant's personal circumstances, including his early plea of guilty, prospects of rehabilitation and remorse, the total effective sentence of 12 years' imprisonment was disproportionate to the overall criminal conduct.
Conclusion
Leave to appeal in respect to each of the grounds should be granted, the appeal allowed and the appellant resentenced.
Resentencing
This court has all relevant materials necessary for resentencing.
The facts of the offences and the appellant's personal circumstances have been set out earlier in these reasons and it is unnecessary to repeat them. Like the sentencing judge, we would allow a 25% discount for the early pleas of guilty. We accept that the appellant has expressed genuine remorse for the offending and has good prospects of rehabilitation.
We would resentence the appellant to 5 years' imprisonment on count 3 and otherwise make the same orders as to concurrency made by the sentencing judge, resulting in a total effective sentence of 8 years 6 months' imprisonment. We would order that the appellant be eligible for parole.
Orders
Leave to appeal on grounds 1 and 2 granted.
Appeal allowed.
The sentence on count 3 be set aside and in lieu thereof the appellant be sentenced to 5 years' imprisonment. All other sentences and orders for cumulation or concurrency to stand. The total effective sentence is, therefore, 8 years and 6 months' imprisonment. The appellant is eligible for parole.
MAZZA JA:
I have read, in draft, Quinlan CJ and Hall JA's reasons in respect of this appeal against sentence. Respectfully, I have arrived at a different conclusion to them. I would dismiss the appeal. My reasons for doing so are as follows.
Their Honours have comprehensively set out all the necessary background, which I will repeat only as necessary.
The appellant was charged with 18 offences, of which 17 alleged that he possessed a prohibited drug, being, in each case, an anabolic steroid, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).[91] By s 34(1)(aa) of the MDA, this offence carries a maximum penalty of 25 years' imprisonment or a fine not exceeding $100,000, or both.
[91] The appellant was also charged with one count of being in possession of a thing capable of being stolen, namely $51,850.00, that was reasonably suspected of being unlawfully obtained.
Apart from cannabis and a trafficable quantity of methylamphetamine, Parliament has not distinguished between prohibited anabolic steroids and other prohibited drugs in determining the maximum penalty for an offence against s 6(1)(a) read with s 34(1)(aa) of the MDA. Put another way, the possession of all drugs prohibited under the MDA, other than cannabis and a trafficable quantity of methylamphetamine, with intent to sell or supply to another, are subject to the same maximum penalty.
There are a very large number of prohibited drugs, including anabolic steroids, that attract the maximum penalty under s 34(1)(aa). The only thing connecting them is that Parliament has decided that in the case of each such prohibited drug, the circumstances of the particular offending might be such as to justify the imposition of the maximum penalty: see The State of Western Australia v Higgins.[92] In respect of those prohibited drugs subject to the maximum penalty under s 34(1)(aa), the MDA differentiates them according to specified quantities for the purposes of determining: when the presumption under s 11 of the MDA applies; the court of trial; and when a declaration under s 32A(1) must be made.[93] There is nothing in the text, context or history of the MDA which shows that this differentiation is based on the relative harm of a particular prohibited drug. Thus, I agree with Quinlan CJ and Hall JA that the MDA does not create a hierarchy of drugs based upon their level of harm.
[92] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [92].
[93] Higgins [90].
This is not to deny that some prohibited drugs are, as a matter of fact, more harmful than others. Accordingly, the MDA, as Steytler P (with whom McLure & Miller JJA agreed) said in Higgins, does not go so far as to make the relevant characteristics of a drug or the relative harm to a user mandatory irrelevant considerations.[94] Thus, when there is evidence put before the court of the relevant characteristics of a prohibited drug or its relative harm, that evidence is to be given appropriate weight with this caveat. As explained by Steytler P in Higgins in a passage extracted in the reasons of Quinlan CJ and Hall JA at [74], the relative harm of a prohibited drug is ordinarily not a matter to which much weight should or can be given.
[94] Higgins [102].
It appears from the absence of a harm‑based regime and the imposition of a maximum penalty of 25 years' imprisonment that Parliament intended deterrence to be the primary objective in sentencing offenders who commit offences contrary to s 6(1)(a) of the MDA. The objective has been recognised time and time again by this court in its enunciation of the general principles applicable for sentencing for serious drug offences. It is Parliament that has decided not to establish a harm‑based regime, and it is not for this court to start imposing one.
In many cases which come before the courts, the relevant prohibited drug is well known to the sentencer. For example, in this State, it is virtually an everyday experience for a sentencing judge in the District Court to deal with someone who has been convicted of an offence contrary to s 6(1)(a) of the MDA relating to substances such as methylamphetamine, heroin, ecstasy (MDMA) and cocaine. The judges of the District Court, in my opinion, are entitled to take judicial notice and give appropriate weight (subject to the caveat referred to above) to the relevant well‑known characteristics of a particular drug, its harm to both the user and the community, and its prevalence.
However, sometimes a prohibited drug is new or uncommon and its characteristics or effects are not well known or understood. In these cases, it will often be helpful for the prosecution to provide the sentencing judge with information about such matters. Of course, any material must be provided to the offender, who must be given an opportunity to rebut or explain it. It may be that no evidence of this kind is, or can be, produced. If this occurs, a sentencer will nevertheless sentence an offender based on the facts and circumstances of the offending and bearing in the mind that the primary objective underpinning the MDA is deterrence. If the relative harm of a prohibited drug is put in issue, the general principles in R vOlbrich[95] apply.
[95] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
I now turn to the facts and circumstances of the case and the merits of the grounds of appeal.
The two grounds of appeal allege implied error. The grounds do not allege any express error of law or fact.
The appellant challenges the individual sentence imposed upon him on count 3 and the total effective sentence.
Count 3 concerns 3,718 vials containing 33.4133 litres of testosterone. It was agreed that the testosterone in liquid form equated to approximately 33.413 kg of the drug.[96] The testosterone the subject of count 3 was found at the premises at 68 Centennial Avenue, Bertram, which the appellant had rented for the purpose of storing the drugs and fulfilling orders received over the Internet for anabolic steroids. This offence was committed in the context of a very large‑scale commercial operation in which the appellant was intimately and knowingly involved. A high level of trust was reposed in him. While the appellant was not the mastermind behind the operation, he was a very willing and important participant in it. His role in the enterprise has been described as a 'storeman'.[97] However, this label, as labels so frequently do, inadequately describes what the appellant did.
[96] ts 15.
[97] See, for example, ts 50.
Initially, the appellant took a part‑time job filling vials of testosterone for sale, which earned him around $100 ‑ $120 per hour. Ultimately, this work became far more lucrative for him than his regular IT job. The appellant resigned from his IT job and worked filling vials with steroids on a nearly full‑time basis until August 2020. There was no coercion involved in the making of this decision. Rather, it was a deliberate choice to embark upon what he must have appreciated was seriously unlawful work.
Just prior to August 2020, the appellant was informed by a friend that a group of people had set up the 'Ozgear' website. He accepted an offer to work in this enterprise.
Between August 2020 and his arrest in March 2021, the appellant worked full‑time for those who were behind the business conducted on the Ozgear website.
The appellant allowed his photograph to be used to create 16 false driver's licences that were then used to rent post office boxes with Australia Post. He rented the Bertram house, and packaged and filled orders that were received on the Ozgear website. He purchased, in bulk, a large number of post packages from Australia Post. The appellant was given a laptop computer and a mobile telephone through which encrypted Wickr chats took place. Her Honour described the appellant's role in relation to the orders that came in via the website as follows:[98]
And your role was to fill the orders that were coming in. So you would re‑package the larger quantities of steroids into vials, and you'd re‑package the tablets which arrived in bulk into the tablet bottles. And you packaged them up into the Australia Post packages that you had purchased. And I'm told that on the whole someone else would then come to the house and pick them up and post them. On rare occasions you sent the packages yourself.
[98] ts 51.
The work in which the appellant was involved was, as I have said, lucrative. As her Honour said, 'On any view, [the appellant was] very well remunerated for [his] role'.[99] The appellant earned $2,000 per week, and then up to $3,000 per week, including bonuses. Her Honour found that the appellant's participation in the offences was 'entirely motivated by commercial gain',[100] in circumstances where the appellant had, prior to joining the enterprise, been in a 'financially perilous position'.[101]
[99] ts 51.
[100] ts 56.
[101] ts 55.
The appellant did not set up the enterprise in which he was involved and there is nothing that indicates that he had any role in sourcing the anabolic steroids in bulk. However, he was a very willing participant in the enterprise and was 'paid very handsomely'[102] for what he did.
[102] ts 54.
There was evidence before the sentencing judge that the value of the drugs seized by the police was between $521,779.50 and $823,807.60. The vials of anabolic steroid were advertised on the Ozgear website at $110 each, although there were varying discounts on this price in the event that the purchaser bought multiple vials in a single order. On any view, with respect to count 3, the 3,718 vials of testosterone were very valuable.
The only evidence before her Honour as to the harm caused by anabolic steroids is the evidence that was put before her from the Healthdirect website. This evidence, while general in nature, was not challenged and showed that the illicit use of anabolic steroids can subject users to both short‑term and long‑term side effects that have harmful physical and psychological consequences. Users can also become addicted to anabolic steroids, because some rely on the drug for confidence and self‑esteem.[103]
[103] See Health Direct information sheet, WAB 206 - 207.
The appellant's personal circumstances were favourable to him. He was a person of prior good character and has good prospects of rehabilitation. Against this is that, in accordance with the general sentencing principles applicable to offences of the kind committed by the appellant, favourable personal circumstances, while not irrelevant, are generally not accorded much weight.
There were other mitigating circumstances. In particular, the appellant's early pleas of guilty, for which he was given a discount pursuant to s 9AA of the Sentencing Act 1995 (WA), of 25%. He was also genuinely remorseful for what he had done. The sentencing judge also found that the appellant's time in prison will be more difficult for him than other prisoners, given that his family resides in New Zealand. Finally, given her Honour's finding that the appellant was unlikely to reoffend, the need for personal deterrence was reduced.
There are no truly comparable cases, but the absence of comparable cases is not a barrier to a conclusion that a sentence is manifestly excessive or that the total effective sentence imposed upon an offender infringes the totality principle. The appellant attempts to compare the seriousness of offences in the present case with the seriousness of offences in cases involving methylamphetamine by simply dividing the total quantity of methylamphetamine in those cases by a factor of 25. This is to reflect that the thresholds for the operation of the presumption of an intent to sell or supply, the determination of the court of trial, and whether a drug trafficker declaration should be made are, in the case of anabolic steroids, 25 times higher than for methylamphetamine. In my opinion, it is futile and unpersuasive to make such an artificial and unnuanced comparison.
Having regard to all the matters I have mentioned, the offending the subject of count 3 constituted offending with a high degree of criminality. The offence carries a maximum term of 25 years' imprisonment or a fine of $100,000 or both. Despite the mitigating circumstances, a substantial term of imprisonment was justified. In my opinion, the individual sentence imposed on count 3 is not manifestly excessive. It has not been demonstrated to be unreasonable or plainly unjust. Ground 1 has not been made out.
As for ground 2, much of what I have already said about the appellant's role in the commission of the offences applies. The appellant was a willing and knowing participant in a large‑scale sophisticated commercial operation that distributed very large quantities of anabolic steroids into the community, over a substantial period of time. The quantity of the anabolic steroids found at the Bertram house, that were encompassed in the offending constituted by counts 1 ‑ 11, weighed roughly 82.8 kg.[104] The anabolic steroids had a very considerable value, and the appellant was amply rewarded for what he did. In combination, the mitigating circumstances were substantial. However, I have not been persuaded that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle. Ground 2 has not been made out.
[104] Respondent's answer, par 26; WAB 30: ts 58.
The orders that I would make in this appeal are:
1.Leave to appeal is granted in respect of grounds 1 and 2.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
13 OCTOBER 2023
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