Customs v Firmin - [2010] QMC 5

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Customs v Firmin

Details

AGLC: Customs v Firmin [2010] QMC 5
Case: [2010] QMC 5
Decision Date: 13 April 2010

CaseChat Overview and Summary

In the matter of Customs versus Firmin, the Federal Circuit Court was tasked with determining an appropriate sentence for the defendant, Mr Firmin, who had been found guilty of contravening section 233(1)(b) of the Customs Act 1914. The charge related to the importation of Human Anabolic Androgenic Steroids for bodybuilding purposes. The court had to decide between imposing a fine with a conviction recorded, or considering a range of other orders under section 19B of the Crimes Act 1914, including dismissal of the charge, discharge without conviction, or probation.

The legal issues before the court involved interpreting the requirements of section 19B of the Crimes Act and applying them to the facts of the case. The court considered whether Mr Firmin met the criteria under sections 19B(1)(a) and (b), which would allow for orders other than a fine with conviction recorded. These criteria include the nature and circumstances of the offence, the offender’s background, and the impact of the offence on the community. The court also had to weigh the appropriate penalty for the importation of prohibited substances under the Customs Act.

The court found that the requirements under section 19B(1)(a) and (b) had not been met, primarily due to the nature and seriousness of the offence. Given this, the court exercised its discretion to impose a fine of $6,500, with a conviction recorded, and ordered Mr Firmin to pay additional costs of $534.30. The decision reflects the court’s consideration of the seriousness of the importation of anabolic steroids and the need for deterrence and punishment.

Orders

Orders of the court

Sentence – fine $6500 – conviction recorded – costs $534.30

Background

Background to the litigation

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;

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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