Customs v Firmin
[2010] QMC 5
•13 April 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Customs v Firmin [2010] QMC 5
PARTIES:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
(complainant)
v
DEANE ROBERT FIRMIN
(defendant)
FILE NO/S:
MAG39719/10(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
13 April 2010
DELIVERED AT:
Brisbane
HEARING DATE:
8 April 2010
MAGISTRATE:
Lee G
ORDER:
Sentence – fine $6500 – conviction recorded – costs $534.30
CATCHWORDS:
CRIMINAL LAW – COMMONWEALTH OFFENCE - Offence under section 233(1)(b) Customs Act 1914 – importation of Human Anabolic Androgenic Steriod for body building - appropriate sentence – section 19B Crimes Act 1914 or a fine with conviction recorded – two step process in considering exercising discretion under section 19B Crimes Act 1914
Crimes Act 1914 (Cth), s 16A, s 19B
Customs Act 1901 (Cth), s233(1)(b), s 233(1AA)(b), s 233(1AB)(b)
Customs Legislation Amendment (Criminal Sanctions and other Measures) Act (Cth) 2000
Customs (Prohibited Imports) Regulations 1956 (Cth),
r 5H, Schedule 8 (item 3C)Penalties and Sentences Act 1992 (Qld), s 12
Property Agents and Motor Dealers Act 2000 (Qld), s 57, s 58, s 75
Cobiac v Liddy (1969) 119 CLR 257, cited
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 192 ALR 92; (2001) 122 A Crim R 568, applied
Commissioner of Taxation v Doudle [2005] SASC 442, cited
Cummins v Duck [2009] ACTSC 20, cited
Lanham v Brake (1983) 34 SASR 578, cited
Morrison v Behrooz [2005] SASC 142; 155 A Crim R 110, cited
R v Abdullahi Mohamed Abdi [1994] QCA 402, cited
R v Hooper [2008] QCA 308, cited
COUNSEL:
C Zeilinga for the complainant
A Mc Guinness (solicitor) for the defendant
SOLICITORS:
Australian Government Solicitor for the complainant
Mc Guinness and Associates for the defendant
Deane Robert Firmin, licensed as a principal real estate agent[1], pleaded guilty through his solicitor in his presence to a charge under section 233(1)(b) of the Customs Act 1901 (Cth) (“the Act”) of importing into Australia a prohibited substance, namely, twenty 20ml bottles of Testosterone Propionate which is an anabolic and androgenic substance (AAS).
[1] Issued pursuant to the Property, Agents and Motor Dealers Act 2000 (Qld); see exhibit 12;
On 8 April 2010 I heard submissions from the legal representatives[2] of both parties on sentence and reserved my decision. On 9 April 2010 both legal representatives emailed further brief submissions to the effect that it is not suggested by the complainant that the total amount of liquid of 400ml in the twenty bottles was all active ingredient. I have directed those emails be placed on the court file.
[2]These are my reasons for judgement on sentence.
By complaint issued 17 February 2010 Mr Firmin was charged in the following terms:
On or about 21 June 2009, at Sydney in the State of New South Wales, Deane Robert Firmin did, contrary to section 233(1)(b) of [the Act] …and regulation 5H of the Customs (Prohibited Imports) Regulations 1956 (Cth) …import prohibited imports into Australia without permission, namely anabolic substances.
Subsection 233(1)(b) of the Act prescribes the conduct which, by virtue of subsections 233(1AA)(b) & (1AB), constitutes an offence of strict liability[3]. Subsection 233(1)(b) provides:
[3] For definition of “strict liability” see section 6.1 Criminal Code (C’th);
233Smuggling and unlawful importation and exportation
(1) A person shall not:
(a)…..
(b)import any prohibited imports; or
(c)…….
(d)…….
Prohibited imports are goods which are prohibited by virtue of section 50 of the Act and regulations made there under and in particular the Customs (Prohibited Imports) Regulations 1956 (Cth): see regulation 5H and Schedule 8 (Item 3C). There is no dispute in this case that the twenty bottles of Testosterone Propionate Mr Firmin imported into Australia are prohibited imports within the meaning of section 233(1)(b). Each of the twenty bottles contained 20 ml of liquid.
By the combined effect of a number of provisions in the Act the maximum penalty for this offence dealt with summarily is presently $22,000[4]. Imprisonment is not a sentencing option for an offence under section 233(1)(b). I am told that the maximum penalty was increased from $5,000 to $20,000 on 26 May 2000 and on
10 October 2002 it was increased to $22,000[5]. It should be noted that, unless expressly excluded by specific legislation, the general sentencing options available under the Crimes Act 1914 (Cth) apply to commonwealth offences. So, for example, an order releasing an offender without recording a conviction under section 19B of the Crimes Act 1914 remains open in a case such as this.
[4] Sections 233(1AA)(b), 233AB(2) and 245(4) of the Act; For summary proceedings, any penalty exceeding 200 penalty units is waived; Penalty unit value is $110 – see section 4AA(1) Crimes Act 1914 (Cth); see also paragraphs 2, 3 &6 of “Outline of Submissions” of complainant – exhibit 4;
[5] Paragraphs 4 & 5 of “Outline of Submissions” of complainant – exhibit 4;
The attraction for agitating a sentence on the basis of section 19B of the Crimes Act 1914 (Cth) is that a conviction is not recorded. Unlike for offences under Queensland legislation where the court has a discretion whether or not to record a conviction under section 12 of the Penalties and Sentences Act 1992 (Qld) for a fine, there is no such discretion under the Crimes Act 1914 (Cth). A conviction must be recorded on the imposition of a fine for a commonwealth offence.
It is contended for Mr Firmin that he be released under section 19B of the Crimes Act 1914 without the recording of a conviction. This is opposed by the complainant and it is submitted that the appropriate penalty is a fine in the range of $5,000 to $7,000 with a conviction recorded.
Section 19B of the Crimes Act 1914 (Cth) relevantly provides:
19B Discharge of offenders without proceeding to conviction
(1) Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:…………
After finding a charge proved, once satisfied that the requirements in section 19B(1)(a) & (b) have been met, the orders a court may make under section 19B range from dismissing the charge completely (s 19B(1)(c)), to discharging the person without proceeding to conviction upon that person giving a security by way of recognisance upon a range of conditions including to be of good behaviour for a period not exceeding 3 years, paying reparation, compensation or costs within a prescribed time, and probation for a maximum of 2 years (s 19B(1)(d)(i), (ii) & (iii)).
Background
Mr Firmin, a single man aged 36 years, owns and operates “the Coldwell Banker Real Estate Franchise for South East Queensland”. Exhibit 13 consists of that franchise agreement signed by Mr Firmin on 14 August 2009 in his capacity as sole director of his company Extropy Consulting Pty Ltd[6], the franchisee. He also holds a principal real estate agent’s licence and sells both residential and commercial real estate throughout South East Queensland as well as managing residential property rentals. Exhibit 12 is a copy of his licence which issued on 5 November 2009 and is due to expire on 5 November 2012. Mr Firmin has also performed information technology consultancy services through his company called IT Extropy Consulting Pty Ltd in “utility billing” for a range of public enterprises such as the Brisbane City Council and other local councils, the Premiers Department, and the Department of Natural Resources[7].
[6] See Exhibit A to the Franchise Agreement at pages 31 & 33;
[7] Paragraphs 2 to 5 & 29 of submissions for Mr Firmin – exhibit 9;
Paragraph 1 of submissions for Mr Firmin (exhibit 9) states that “The facts outlined in the Statement of Facts are acknowledged and accepted”. It is unclear whether the reference to “Statement of Facts” is a reference to the particulars provided in the Complaint or whether it refers to the complainant’s submissions on sentence at paragraph 7 in exhibit 4. No document has been tendered entitled “Statement of Facts”. I will take it to mean the particulars provided in the Complaint because, during oral submissions, it appeared that issue was taken with some matters in paragraph 7 of the complainant’s submissions (exhibit 4).
On or about 21 June 2009, two overseas parcels arrived at the Sydney Gateway Facility. Each parcel was addressed to “Dean Firmin” and “Dean B Firmin” respectively at 337/ 64 Macquarie Street, Newstead, Brisbane which was Mr Firmin’s residential address. Both parcels were posted on 17 June 2009 from Thailand. Each parcel contained ten (10) plastic bottles of Testosterone Propionate which is an anabolic substance. Each bottle contained 20ml of fluid. Mr Firmin caused the two parcels to be posted to Australia from Thailand. He had paid for them by money transfer.
Submissions and Discussion
The complainant stated that on 11 June 2009 Mr Firmin paid $1,212.29 for the prohibited imports by way of transfer using western union[8].
[8] Paragraph 7 of complainant’s submissions – exhibit 4;
The complainant said there had been an element of concealment. The items were described as “Thai Boxing Oil” under the heading “Quantity and detailed description of contents” in the declaration on each postal parcel. This can be clearly seen from photographs in exhibit 1. Ten of the bottles themselves were marked “Muay Thai Liniment Oil”. The other ten bottles have some indecipherable label. This can also be clearly seen from photographs in exhibit 1. It appears that a document entitled “MarketGiant” accompanied both parcels. It is an information sheet on directions for use and the benefits of using Muay Thai Liniment Oil: see exhibit 2.
It was submitted for the complainant that the declarations and markings on the bottles masked the true nature of the items imported which made the job of customs officers harder particularly by virtue of the sheer volume of parcels and letters that arrive in Australia by post from overseas. The bottles did not contain Muay Thai Liniment Oils but in fact contained an anabolic substance called Testosterone Propionate. The complainant drew attention to well documented adverse side effects of taking steroids including physical and psychological: see Drug Trends Bulletin June 2007 (exhibit 6) and a National Drug and Alcohol Research Centre (NDARC) fact sheet on Anabolic –Androgenic Steriods (exhibit 8). Further, exhibit 6 highlights the current price of injectable human anabolic androgenic steroids (AAS)[9] being in the range of $20 to $40 per ml. The complainant submitted that the market price in Australia for items imported by Mr Firmin would be in the range of $8,000 to $16,000[10].
[9] An AAS is a category of “Performance and image enhancing drug” (PIED);
[10] 400ml multiplied by $20 per ml = $8,000; 400ml multiplied by $40 per ml = $16,000;
Submissions for Mr Firmin outlined what is described as the circumstances behind the offending. In 1994 his mother was diagnosed with a terminal brain tumour. His father aged 76 died in 1996. Mr Firmin then cared for his mother until she was hospitalised 12 months prior to her death in May 2009. He took substantial time off work to care for his mother. His sister suffers a mental illness and could not help.
It is said that Mr Firmin was diagnosed with depression in 1999[11]. It was submitted that he has been taking medication since that time including seeing medical practitioners and psychiatrists “during that period” i.e. from 1999. No medical evidence has been provided to support these contentions. There is a short 1.5 page report from Dr Sam Korman (psychiatrist) dated 6 April 2010 (exhibit 11) who was asked to answer specific questions given to him by Mr Firmin’s lawyers. It is not a full psychiatric report with a detailed medical and treatment history. Dr Korman confirms that he treated Mr Firmin from 27 May 2008 to 8 July 2009 for a major depressive episode on the background of generalised anxiety disorder and panic disorder. Stressors included loss of his marriage, the death of both parents and the ongoing stress from his sister. Dr Korman has not seen Mr Firmin since 8 July 2009. Dr Korman’s report does not indicate whether Mr Firmin had longstanding depression since 1999 or that he has been receiving treatment for depression since then. However, it is likely that Mr Firmin suffered symptoms for some period prior to him seeing Dr Korman which prompted treatment by Dr Korman from 27 May 2008.
[11] Paragraph 10 of submissions for Mr Firmin;
Mr Firmin married in 2005 and divorced in 2008. It was submitted that he spent long hours caring for his mother and this strained his marriage. The offence occurred during the month following his mother’s death[12].
[12] Paragraphs 11 & 12 of submissions for Mr Firmin;
Regarding the commission of the offence itself, it was submitted for Mr Firmin that following his mother’s death he resumed bodily exercise in an attempt to return to previous fitness levels. In the past he had played representative squash at junior and senior level in Victoria. The submission continues that in or about June 2009 an “associate” of Mr Firmin’s suggested he try steroids and was given some which he said helped. Mr Firmin then viewed the internet site recommended by his “associate” and paid moneys for “six 20 ml containers” although it is accepted “that the company forwarded ...20 bottles in lieu of the six bottles he had expected”[13]. It is easy to make this assertion. No documentary evidence was forthcoming in relation to his original order to support this contention or any explanation as to why such material could not be obtained, if that be the case. I note that no submissions were made as to what attempts (if any) were made by Mr Firmin to rectify the alleged error on the part of the supplier. I find it difficult to accept such a submission on the available information and it is rejected.
[13] Paragraphs 13 to 16 of submissions form Mr Firmin;
The exercise of the discretion in section 19B of the Crimes Act 1914 has been extensively considered in the leading case of Commissioner of Taxation v. Baffsky 192 ALR 92; (2001) 48 ATR 76[14] in following the approach taken by the High Court in Cobiac v. Liddy (1969) 119 C.L.R. 257 which considered the application of similar sentencing provisions in South Australian legislation in respect of three offences against the Road Traffic Act, 1961-1967 (S.A.). Spigelman C.J., who wrote the leading judgement in Baffsky with whom the other members of the court agreed, said at 80 of the ATR:
Section 19B(1) (b) itself consists of 2 stages. First is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and /or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it ‘is inexpedient to inflict any punishment’ or to reach the other conclusions for which the paragraph provides.[15]
[14] Court of Criminal Appeal in New South Wales;
[15] Helpful summary of this is in paragraphs 18 to 20 of submissions for Mr Firmin – exhibit 9;
Spigelman C.J. went on to say that the court was required to take into account those factors in section 16A of the Crimes Act 1914 in determining the second stage as to whether it is inexpedient to inflict any punishment etc as per section 19B(1)(b). This approach has been applied in many subsequent sentencing decisions in respect of a range of commonwealth offences: for example Cummins v. Duck, a decision of the Supreme Court of the Australian Capital Territory[16] 12 March 2009 per Refshauge J. on appeal from a Magistrate, R. v. Hooper [2008] Q.C.A. 308[17]; Commissioner of Taxation v. Doudle [2005] SASC 442.
[16] Cummins v. Duck, SCA 9 of 2008, BC200901424; [2009] ACTSC 20;
[17] Mackenzie AJA wrote the leading judgment with which the other members of the Court of Appeal agreed;
Subsection 16A of the Crimes Act 1914 relevantly provides:
16A Matters to which court to have regard when passing sentence etc.
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f)the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h)the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
As noted in Baffsky, the professional status of an offender falls within the generic concept of “antecedents”, a word which is in s 19B(1)(b)(i) and s 16A(2)(m). Spigelman C.J. at paragraphs 35 & 38 respectively said:
Furthermore, the effect of a conviction on the offender is a material consideration when exercising the s 19B discretion. It arises both with respect to personal deterrence under s 16A(2)(k). It arises generally on the test of “inexpediency”.
The fact that a person is subject to additional adverse consequences by reason of the recording of a conviction is a relevant consideration in the exercise of the statutory discretion.
In Baffsky the section 19B discretion was exercised in favour of the taxpayer who was a barrister. In that case the Commissioner of Taxation had caused the taxpayer to become bankrupt about 3 or 4 months prior to the issue of the summons. However, there were a range of other factors considered by the court for the purposes of section 19B in addition to the professional status of barrister and the consequences of a conviction for a barrister.
In considering the first stage in exercising the section 19B discretion, reliance was primarily placed for Mr Firmin on section 19B(1)(i) - “character, antecedents, age, health or mental condition ...”. Some reliance was also placed on section 19B(1)(iii) - the offence was committed in extenuating circumstances. It was not contended that the offence was trivial – section 19B(1)(ii)[18]. In any event, had that ground been relied on, I would agree with the complainant’s submissions that this offence is not trivial. It was contended for Mr Firmin that this concession demonstrates a level of insight. I doubt that this necessarily follows. I think it more likely that Mr Firmin has acted on accurate legal advice. In my view, the test of triviality is clear enough[19] and the present offence consisting of the concealed importation of twenty bottles of Testosterone Propionate by post would not fall within that category.
[18] Paragraph 23 of submissions for Mr Firmin;
[19] See paragraphs 11 & 12 of submissions for the complainant;
Regarding section 19B(1)(i), a combination of matters were relied on to satisfy the first Baffsky step. Mr Firmin is of good character having no previous convictions. Three references were tendered in support (exhibit 10) one of which is by a clinical nurse co-ordinator who was involved in the management of Mr Firmin’s mother while she was in hospital. It was submitted that this reference should carry great weight as it is at arms length.
It was further contended that he had been suffering from mental health issues since 1999 and this offence was committed while he was being treated by Dr Korman although I note it was right at the end of that treatment. While I do not accept that he was suffering from mental health issues from 1999, in line with Dr Korman’s report I accept that he was suffering mental health issues for some period prior to starting treatment with Dr Korman on 27 May 2008. He last saw Dr Korman on 8 July 2009. Dr Korman said Mr Firmin’s progress during his treatment was fair. This offence was committed in June 2009 which is near the end of that treatment. Therefore, this is not a case where a person suffering from mental illness has offended after a deterioration of that condition because treatment had ceased. Mr Firmin was still having that treatment at the time of this offence. Dr Korman has not provided an opinion as to Mr Firmin’s state of mental health at the time of this offence. Without seeing Mr Firmin, Dr Korman’s prognosis was that as he is not currently receiving specialist treatment his prognosis “is worsened”. This, in my view, whatever it means, is purely speculative and little weight is attached to it. Dr Korman confirms that as of 6 April 2010, the date of his report, Mr Firmin was not receiving treatment. Further, I note oral and written submissions for Mr Firmin[20] that he had invested a lot of money in entering into the franchise agreement dated 14 August 2009 (exhibit 13), just shortly after this offence was committed and shortly after he had ceased treatment with Dr Korman. His real estate licence was also issued, presumably renewed, on
5 November 2009 at a time, it appears, he was not in receipt of treatment. I find it difficult to accept and I do not accept that Mr Firmin’s mental state had a material affect on him in relation to this offence. On the available evidence before me I do not accept that Mr Firmin’s current mental health is terribly compromised. If it was, more satisfactory and current information to that effect would have been placed before me. He is the principal of a number of successful businesses outlined earlier.
[20] Paragraph 28 of submissions for Mr Firmin;
The next issue under section 19B(1)(i) is “antecedents” which includes Mr Firmin’s status as a licensed principal real estate agent: see paragraph 25 above. It was submitted for Mr Firmin that the recording of a conviction “would have a prejudicial effect on [his] prospects and career” and may deem him unsuitable to hold a real estate agent’s licence[21]. The submission continues that the franchisor may terminate the franchise relationship under clause 13.2 “Default and Termination”[22] of the franchise agreement (exhibit 13) which provides:
13.2Immediate Termination: Franchisee and Franchisor agree that certain acts, omissions or conditions fundamentally undermine their relationship. Franchisee agrees that this Agreement and the franchise relationship may be terminated by Franchisor, in its sole discretion, immediately upon written notice of termination to Franchisee based upon the occurrence of any of the following acts, omissions or conditions:
(i) Franchisee or any of its owners is or has been convicted of any crime or offense [sic] that Franchisor determines might adversely affect the goodwill associated with the Coldwell Banker Marks. …..
[21] Paragraph 26 of submissions for Mr Firmin;
[22] Containing a number of grounds in paragraphs (a) to (j) of Clause 13.2;
A termination, it was submitted, would have a substantial economic impact upon Mr Firmin. Further, it was said that his IT consultancy work with public authorities often requires a criminal history check[23] but there was no material placed before me to indicate what effect this would have on that work. I’m left with the general assertion that criminal history checks are often required and am left to infer there may be some sort of detriment.
[23] Paragraphs 28 to 30 of submissions for Mr Firmin;
On the other hand the complainant submits that Mr Firmin is a first offender like most other offenders and this is not enough in itself to invoke section 19B. The complainant quite properly concedes that the effect of a conviction is a factor to consider for the purposes of section 19B.
A reported case relied on by the complainant is to the effect that the relevant professional body should be left to determine what consequences should follow from the recording of a conviction: R. v. Abdullahi Mohamed Abdi [1994] QCA 402 per McPherson J.A[24]. During submissions for Mr Firmin, it was suggested that the statement of McPherson JA is not clear and is not to the effect as asserted by the complainant. That case involved an appeal from a magistrate’s decision to record a conviction under section 20(a) of the Crimes Act 1914 for a defendant found guilty of an offence under the Migration Act 1958. I think the point emphasised by Macrossan C.J and McPherson JA is that it was uncertain as to whether that defendant would be refused registration as a medical practitioner upon completion of his degree in two years time. In that context McPherson JA said:
..It is now shown, for example, that the applicant will not be permitted to complete the Masters degree that he is now studying for at university, nor is it shown that he will, on account of that conviction, be refused registration as a medical practitioner if that is what he proposes, which is something we do not know.
Even if it were shown that that result would follow, we would have to ask ourselves the question whether it was our duty to interfere with that process, rather that the relevant body be left to determine whether that consequence should follow. If, in those circumstances, we were in this case to upset the recording of a conviction, we would, as I see it, be doing so on the footing that some unspecified detriment usually does follow for the recording a conviction and that therefore that course should generally not be taken. That would, in my view, not be a proper attitude to adopt in relation to a provision like s19B.
[24] Paragraph 10 of the complainant’s submissions on section 19B – exhibit 5;
I think in that case the detriment was uncertain i.e. refusal of medical registration, and McPherson JA was simply saying that, even if it were established that medical registration would be refused, a court ought not interfere for the reasons he has given. In other words, while other factors may come into play for the purposes of section 19B in a given case, in the context of that case it appears the court would not have interfered whether the adverse outcome was certain or not.
In the present case, the detriment is also not certain. First, Mr Firmin’s real estate licence does not expire until 5 November 2012. I invited submissions as to whether Mr Firmin was under a duty to disclose a conviction as do legal practitioners. It was thought that there was no particular duty to disclose. His current licence has about
2 years and 7 months to run. It was suggested that the relevant question may be asked at the time of renewal. However, on the information before me, this is also not clear although I note that his current licence issued on 5 November 2009, after this offence was committed and before the complaint issued, and no information was provided to this court as to what occurred on that occasion. This is not a serious offence as that term is defined in the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMD”) where a licence would be cancelled by force of section 75 of the PAMD. One is left with a rather vague consideration that, before renewing a real estate agent’s license, the relevant departmental officer is to be satisfied that the person is a “suitable person”: sections 57 & 58 of the PAMD. The PAMD also provides a mechanism for the review for a person aggrieved by an adverse “suitable person” decision.
The second detriment alleged is that his franchise may be terminated with substantial economic consequences. A termination, in my view, is not at all certain. The franchisor cannot simply terminate upon conviction. The franchisor must also come to the view that such conviction “might adversely affect the goodwill associated with the [franchisor]”. Clause 16 of the franchise agreement entitled, rather misleadingly, “Judicial Proceedings”, provides for a process of mediation of disputes between the parties to the franchise agreement in which the laws of Queensland apply[25]. Subclause 16.4.A entitled “Mediation” provides for a process of negotiation. If negotiation fails then any party can refer the dispute to an independent mediator. If that fails, then a party can take legal action.
[25] Subclause 16.4 of the franchise agreement – exhibit 13;
I accept the complainant’s submissions. First, whether Mr Firmin is determined not to be a “suitable person” when his real estate licence is due for renewal in or about
5 November 2012 or whether his franchise agreement is terminated are uncertain events. Secondly, if either of those events occurs, this court ought not to interfere with processes that have been put in place to resolve any adverse outcome for Mr Firmin in that respect.
In summary, for the purposes of section 19B(1)(i), I have found that Mr Firmin has no criminal history and there are references which support the view that he is of good character. I have not accepted that his mental heath played a material part in this offence. I have found that the effect of a conviction is not at all certain for Mr Firmin in relation to his real estate agents licence and franchise agreement and that processes for resolution of disputes are in place.
I am not satisfied that the first Baffsky step in section 19B(1)(i) has been satisfied.
I now consider section 19B(1)(iii) in respect of the first Baffsky step – the offence was committed under extenuating circumstances. Mr Firmin relies on a range of matters already outlined above including his mother’s diagnosis with a terminal illness in 1994, his father’s untimely death in 1996, his care of his mother until her unfortunate death in May 2009, his divorce in 2008 and his mental health issues.
Section 19B(1)(iii) refers to the actual offence being committed in extenuating circumstances. It does not extend to extenuating circumstances at large. The offence here was committed in June 2009. This was towards the end of his treatment with Dr Korman in which he was said to be progressing fairly. He ceased treatment with Dr Korman on 8 July 2009. No information has been provided as to the reason for that. His father’s death was some 13 years before the offence. While Mr Firmin cared for his mother during her illness, I note that she was in hospital for the last 12 months until she passed away in May 2009. I note that the reference from the clinical nurse from the hospital (exhibit 10) dated 26 March 2010 was supportive of Mr Firmin. That reference also made the point that Mr Firmin was “able to assimilate and understand the information he was given to make the appropriate difficult decisions in regard to his mother’s care”. While this very important role fell on him in this respect, it is also evident that he was not so overborne by his own mental health issues. After his mother passed away in May 2009, he committed this offence in June 2009. It was committed in circumstances where he wanted to get fit and rebuild his body to his former level of fitness. He spoke to an unidentified “associate” who gave him some steroids. He then bought some off the internet site provided by his “associate” for personal use in building up his body again. There is no suggestion that he needed these for a medical reason. Then he signed a franchise agreement on
14 August 2009 committing a lot of money and his real estate licence renewed on
5 November 2009.
I find that this offence was not committed in extenuating circumstances.
In summary, I accept the complainant’s submissions as to stage one[26]. This would be sufficient to preclude the exercise of the section 19B discretion. However, I will also consider and make findings in respect of stage two in the event that I am wrong in respect of stage one.
[26] Paragraphs 8 to 23 of submissions on section 19B for complainant;
For stage two, the next step is to consider whether it is inexpedient to inflict no punishment or only a nominal punishment on Mr Firmin having regard to a wide range of factors including those in section 16A(2) cited above.
Similar submissions for Mr Firmin were made for stage two as those made for stage one. I will not repeat them all suffice to say that all factors in section 16A(2) of the Crimes Act 1914 (Cth) must be balanced in arriving at the appropriate sentence. Because Mr Firmin is a principal real estate agent with no previous criminal history, and the certain consequences that may follow in the renewal of his real estate licence and termination of franchise agreement, it would be inexpedient to inflict only a nominal punishment on him under section 19B.
The complainant focussed submissions on the importance of legislative policy: Tylka v. Hardman, an unreported decision of the Supreme Court of Western Australia,
26 November 1993 (BC 9301562). Reference was made to the “Tough on Drugs in Sport Strategy” which was introduced in May 1999 just prior to the Sydney Olympics with consequent legislative amendments[27]. As previously noted, the maximum penalty for an offence under section 233(1)(b) dealt with summarily was significantly increased from $5,000 to $20,000 by the Customs Legislation Amendment (Criminal Sanctions and other Measures) Act 2000. I agree that the legislative regime under customs legislation is a necessary consideration when considering exercising the section 19B discretion. In examining the legislative scheme of the Migration Act 1958 in the context of an unlawful escape from an immigration reception centre in Morrison v. Behrooz 155 A Crim R 110[28], at [65] Gray J. on appeal from a Magistrate said:
The legislative scheme of the Migration Act was a necessary consideration when determining whether to exercise the discretion conferred by s 19B of the Crimes Act. As observed in Commissioner of Taxation v. Baffsky, it is appropriate to have regard to the significance of the conduct regulated by the statute creating the offence when determining whether it is inexpedient to impose punishment ….[29]
[27] Paragraphs 24, 31 to 42 of the complainant’s submissions on section 19B; exhibit 7 “Tough on Drugs in Sport”, Australia’s Anti-Drugs in Sport Strategy 1999 – 2000 and beyond;
[28] [2005] SASC 142;
[29] See also [23] at page 118 in Morrison v. Behrooz;
Gray J, then cites a passage from Baffsky[30] indorsing judicial statements by Cox J. in Lanham v. Brake (1983) 34 SASR 578 at 584 regarding the Quarantine Act 1908 (Cth) that considerations of deterrence must predominate and relevant considerations include the seriousness of the offence, its prevalence and the obvious difficulty of detecting breaches in circumstances where every piece of luggage cannot be searched at the time of disembarkation by all passengers. Contrary to submissions for Mr Firmin, I think that there is little difference in the difficulties of customs officers searching luggage of disembarking passengers and dredging through large volumes of postal imports particularly if, as here, there was active deception in the description of the goods.
[30] Commissioner of Taxation v. Baffsky (2001) 122 A Crim R 568 at [94] – [96];
While it is important to bear in mind the legislative policy in laws creating criminal offences for the purposes of sentencing, this must be balanced against the range of other factors outlined in section 16A(2) of the Crimes Act 1914. That is, considerations of deterrence and what is an adequate punishment, while important, ought not to be given undue weight so as to skew consideration away from other factors that may apply to a particular defendant when considering the application of section 19B. After all, as McKenzie AJA in R. v. Hooper [2008] QCA 308 at [27] and [31] said, each case must be looked at in its own particular context. There, his honour compared and contrasted some authorities considering offences under different commonwealth legislation. That case resulted in the exercise of the section 19B discretion for an offence under section 474.17(1) of the Criminal Code Act 1995 (Cth) of using a carriage service in a way that reasonable persons would regard as being menacing with a maximum penalty of three years imprisonment[31]. While the offence in that case is not a customs offence, in my respectful view, the statements of principle apply here.
[31] Sending text messages by mobile phone;
For the purposes of subsection 16A(2)(a) of the Crimes Act 1914 the circumstances of the offence in this case have already been outlined. Mr Firmin relies on those matters already canvassed. I accept the complainant’s submissions that this component augers against exercising the section 19B discretion particularly given the deceptive way in which the goods were described on the postal parcels even accepting that Mr Firmin purchased them for his own use.
The subject matter in paragraphs 16A(2)(b), (c), (d), (e), (fa), (n) & (p) of the Crimes Act 1914 do not appear to be relevant in this case. In any event, no particular feature encompassing these issues was specifically raised in submissions either supporting or militating against the exercise of the section 19B discretion. In respect of rehabilitation in paragraph (n), there is no suggestion that there is a need for that here. In respect of paragraph (p), Mr Firmin has no family.
As to paragraphs 16A(f), (g) & (h), I take into account that Mr Firmin has pleaded guilty to this offence and that this provides some evidence of contrition. Through his lawyer at the sentencing hearing, he expressed remorse, offered an “unreserved apology”, and said he would not use the substance again.
Paragraph 16A(2)(j) deals with the deterrent effect the sentence may have on Mr Firmin. This provision is concerned with personal deterrence as opposed to general deterrence but, as previously outlined, is an important consideration in sentencing. Given that Mr Firmin is a principal real estate agent with a number of business interests he ought to have known better. In my view, personal deterrence is an important factor in this case which militates against the exercise of the section 19B discretion.
While paragraph 16A(2)(j) does not deal with general deterrence as opposed to personal deterrence, it is clear on the authorities that general deterrence is also a matter to be considered. The legislative scheme in relation to an offence under section 233(1)(b) of the Act makes it clear that the importation of steroids is a serious matter and is contrary to the policy and purpose of the Act. Increasing the maximum penalty in 2000 from $5,000 to $20,000 reflected Parliament’s intention to treat offending of this nature as a serious matter and that the increased penalty was to reflect the need for general deterrence: see for example Morrison v. Behrooz 155
A Crim R 110 at 129 for similar comments in relation to the Migration Act 1958. Having said that, Gray J. in Morrison exercised the section 19B discretion in favour of the defendant who unlawfully escaped from an immigration detention centre. The court in that case accepted that defendant was mentally ill, had attempted suicide and was the subject of a guardianship order.
In the present case, general deterrence is an important factor in sentencing Mr Firmin who was an elite athlete and who purchased the steroids for the purpose of increasing his own body fitness despite the known adverse side effects. In my view, this is a case that calls for strong general deterrence so that other persons, who are considering similar activities, will think twice before doing so.
Paragraph 16A(2)(k) of the Crimes Act 1914 deals with what is an adequate punishment. My ultimate view is that, after balancing all factors for and against Mr Firmin, that the appropriate punishment is a fine with a conviction recorded.
The next group of factors to consider are in paragraph 16A(2)(m), namely, “character, antecedents, age, means and physical or mental condition of the person”. Mr Firmin is a single man aged 36 years. His character and antecedents have already been discussed above including the absence of a criminal history. I will not repeat them here suffice it to say that his otherwise good character and antecedents would tend to support the exercise of the section 19B discretion. He is a business man aged 36 years and is in a far better position than a young inexperienced person. This factor does not favour the exercise of the discretion. I have found that his mental health was not a material factor in the commission of this offence so that this is not a matter that would support the exercise of the discretion. His physical condition must have been satisfactory to say the least. He was seeking to build his body up by importing the steroids.
After considering the factors outlined above, in terms of section 19B(1)(b) of the Crimes Act 1914 I am not of the opinion that it is inexpedient to inflict any punishment or only a nominal punishment on Mr Firmin. Nor am I of the opinion that he be released on probation. I decline to exercise the discretion under section 19B of the Crimes Act 1914.
The question remains as to what is an appropriate sentence in this case. The complainant submits a fine in the range of $5,000 to $7,000 and relies on a schedule of comparative sentences imposed by Queensland courts on other occasions[32]. It was submitted for the complainant that this case falls within the scope of penalties referred to in the schedule.
[32] Exhibit 3;
In Mr Firmin’s case, there is one importation of twenty 20ml bottles of Testosterone Propionate, an injectable human anabolic androgenic steroid (AAS), in two post parcels from Thailand. The cases in the schedule include cases where there have been multiple importations of various prohibited substances in a variety of circumstances. For example, in Groves there were five importations of steroids for personal use for an injury. On 20 November 2008 he was fined $7,500 and conviction recorded. In Milne, there were 4 importations through the post consisting of 55 sachets of prohibited substances as well as 25 bottles of Ephedrine. He too was said to be recovering from an injury. On 16 September 2008 he was fined $7,500 and conviction recorded. In Wiese, various substances including human growth hormone were imported in four postal parcels in the context of a previous warning four years beforehand. On 7 August 2008 he was fined $5,300. In Brauner, 440 Diazapam tablets were imported by post on three occasions. He was a paraplegic due to a work incident and the court accepted that he obtained these tablets to manage his pain. On 11 March 2008 he was fined $6,000 and conviction recorded. In Hurlock, he ordered steroids from Thailand for the purposes of body building. On 22 January 2008 he was fined $7,000 with a conviction recorded. In Ryan, 30 sachets and 110 paper steroid squares were imported for self medication of a knee injury sustained in the past as a professional footballer. The parcels were labelled “aromatherapy”. On 20 November 2007 he was fined $7,000 with a conviction recorded. In Wiersma, there were four importations of anabolic substances with sachets marked “Indian Aromatherapy oils”. On 6 September 2007 he was fined $5,000 with a conviction recorded.
In Austin, on 24 January 2008 a fine of $6,000 was imposed for importation of Human Growth Hormone by post on six occasions. A section 19B submission was rejected. The court accepted he had a medical condition and that a doctor had prescribed the substance in Australia for that condition. Due to the high cost of the Human Growth Hormone in Australia, he imported it himself at a much lower cost.
Also relevant in this case is Draper, where a fine of $6,000 was imposed on
24 January 2008 for importation of 20 vials of Human Growth Hormone which the court accepted was prescribed by a doctor for his depression. He too said he imported the substance from overseas because of the high cost in Australia. Unlike Mr Firmin who is single with no dependents, Draper was the sole bread winner for his wife and child.
There is one case in the schedule, Collins, where the section 19B discretion was exercised on 26 March 2009. She had imported 2,210 tablets (sedatives) over
11 separate occasions by ordering them over the internet. Collins had been a police officer on stress leave and was being discharged from the service on medical grounds. Medical reports were tendered in that case to support her contention that she suffered from a medical condition. Further, she had two children aged 3 and 11 years one of whom had attempted suicide.
It is not intended to refer to all the cases in the schedule suffice it to say that I agree with the complainant’s submissions that the appropriate range is $5,000 to $7,000.
The cases in the schedule range in the number, quantity and type of prohibited import as well as the number of acts of importation some of which were by post. The submissions for Mr Firmin sought to distinguish this case with the cases in the schedule. While there are differences from case to case, I consider the range of $5,000 to $7,000 to be the appropriate range here. In Mr Firmin’s case, he imported twenty 20ml bottles of injectable human anabolic androgenic steroids (AAS) in one act of importation whereas in other cases in the schedule the type of substance is different and the quantity of substance and the number of acts of importation are greater. As I understand it, it was submitted for Mr Firmin that in Collins, she was a police officer who ought to have known better. She was sentenced on the basis of section 19B. In Collins the court accepted that she had a medical condition the existence of which was supported by medical reports tendered to the court and also supported by an ongoing Workers Compensation claim. That is not the case for Mr Firmin. He obtained this substance for body building. I do not accept that Mr Firmin falls within the same category as Collins.
In my view, the appropriate penalty for Mr Firmin is a fine of $6,500 with a conviction recorded. This strikes a balance between the amount of substance imported in one act of importation on the one hand and the purpose for obtaining the substance on the other hand. Mr Firmin did not obtain, as was the situation with many of the cases in the schedule, the injectable human anabolic androgenic steroids (AAS) for any genuine medical reason. This is also a case of active misrepresentation as to the description of the substance.
The complainant seeks costs in the amount of $534.30. This is not in contention.
Therefore, I order as follows:
· Mr Firmin is convicted and fined $6,500, twelve months to pay in default 110 days imprisonment.
· Mr Firmin to pay the complainant’s costs fixed at $534.30, twelve months to pay in default 9 days imprisonment.
· A conviction is recorded.
Mr C. Zeilinga of the Australian Government Solicitor’s office for the Complainant; Mr
Mc Guinness, solicitor of McGuinness and Associates;
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