Director of Public Prosecutions v Hough
[2017] VCC 870
•28 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK HOUGH |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2017 | |
DATE OF SENTENCE: | 28 June 2017 | |
CASE MAY BE CITED AS: | DPP v Hough | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 870 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – import Tier 1 goods – traffick in a drug of dependence (Oxandrolone) – plea of guilty
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269; Nguyen v R (2011) 31 VR 673 at [33 – 35]
Sentence: 18 months imprisonment released immediately upon entering into a recognisance of $1,000 to be of good behaviour for 3 years. Community Corrections Order for a period of 3 years to perform 300 hours of unpaid community work. Convicted and fined $2,000 with a stay of 6 months to pay the fine. Section 6AAA declaration.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Buckley | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M. Eddy | Armstrong Legal |
HIS HONOUR:
1
Patrick Hough, on 21 June 2017, you pleaded guilty to three charges of importing Tier 1 goods, namely quantities of anabolic and androgenic substances greater than the critical quantity without approval, Charges 1, 2
and 3; trafficking in a drug of dependence, namely Oxandrolone; as well as
a related summary offence of unlawfully having in your possession prohibited imports, namely anabolic or androgenic substances without the requisite approval being obtained. The maximum penalty for Charges 1, 2 and 3 is five years’ imprisonment, whilst the maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. For the related summary offence, the maximum penalty is a fine of $180,000.
2 Tendered on the plea as Exhibit A was the prosecution opening for plea which was read aloud in court. In summary form, on three occasions between 15 November 2015 and 16 January 2016, you imported consignments containing Tier 1 goods, namely anabolic and androgenic substances. Each of the consignments were detected and intercepted by Australian Border Force and no controlled deliveries took place.
3 Charge 1 occurred on 15 November 2015, when a parcel addressed to Graham Connors of 75 Sullivan Avenue, Lysterfield, Victoria 3156, was examined by Australian Border Force personnel. The contents of the parcel were declared to be “drinks and snacks”. The parcel contained, in part, three boxes of Tang. Each box contained five sachets and in total the sachets contained 50.3 grams of testosterone cypionate at 97.9 per cent purity (49.24 grams pure); and 69.6 grams of Trenbolone Enanthate at 85 per cent purity (59.16 grams pure).
4 Charge 2 occurred on 10 January 2016 when a second parcel, also addressed to Graeme Connors, was examined. The parcel contained three boxes of Tang and contained within each box was five sachets which contained 49.9 grams of Oxandrolone at 96.1 per cent purity (47.95 grams pure); 49.95 grams of Metandienone at 94.9 per cent purity (47.35 grams pure); and 9.6 grams of Oxymetholone of unknown purity.
5 Charge 3 occurred on 16 January 2016, when a third parcel was examined. The contents of the parcel were declared as “sample snacks”. The parcel contained two boxes of Tang with each box containing five sachets which contained 89.7 grams of testosterone cypionate at 99 per cent purity (88.8 grams pure).
6 The critical quantity for anabolic or androgenic substances is 20 grams.
7 Charge 4 is a between dates charge from 3 February 2016 to 9 February 2016, when you trafficked in a drug of dependence, namely Oxandrolone, by preparing that substance for trafficking, offering it for sale and having the drug of dependence in your possession for sale. The prosecution relied upon text messages recovered from your telephone to found this charge, that between the nominated dates, you were trafficking Oxandrolone to friends.
8 On 9 February 2016, a warrant was executed at your residence at 75 Sullivan Avenue, Lysterfield, by Australian Border Force officers. Your mobile phone and desktop computer were seized. An analysis of your mobile phone revealed text messages, to which I have already referred, and the analysis of your desk computer revealed that you had searched the internet in respect to your conduct and that you knew it was illegal.
9 Also found at your home on 9 February, were two brown paper bags containing the anabolic steroid Oxandrolone and each bag was marked with the names of the two friends to whom you trafficked that substance.
10 You were interviewed under caution at the time of the execution of the search warrant and made frank admissions to investigators. You were further interviewed under caution on 16 February 2016 and once again made full and frank admissions in respect to your criminality.
11 In summary, you told investigators that you knew the importation of anabolic substances was prohibited. You imported the substances from a company based in China and paid via Western Union transfer or bank transfer. You imported the substances for personal use, but sold steroids to your friends in low volumes and that they would reimburse you for your costs. You knew that the goods were concealed in Tang sachets and you had been informed by your supplier that they would somehow package the steroids in a way that it would not be obvious what the goods were.
12
You are 31 years of age and presently live in rented accommodation in Rowville. You were born in Lilydale and educated at Dandenong Primary School and Monbulk Coeducational College, where you successfully completed Year 12. Both your parents are still alive and are retired and reside in Inverloch. You have three older sisters and not one of your family has ever had trouble with the law. You told Mr Jeffrey Cummins, psychologist, whose report dated
20 June 2017 became Exhibit 3 on the plea, that you were raised in a loving and caring family.
13 After completing Year 12, you enrolled in a Bachelor’s Degree in Health Sciences at Victoria University, but completed only 12 months of that degree. You moved to Brisbane with your then girlfriend and attended the Australian Institute of Applied Science and obtained an Advanced Diploma of Nutritional Medicine in 2008.
14 When your relationship with your girlfriend came to an end, you returned to Melbourne, but over the next six months, you worked as a “fly in, fly out” coal miner in central Queensland. When not working at the mine in Queensland, you worked as a labourer for your father, who was then an electrician. After ceasing working as a “fly in, fly out” worker, for the next 18 months, you worked as a nutritionist in a private practice in Fairfield.
15 Between the ages of 23 and 26, you sold nutritional supplements for a sports store at the Chadstone Shopping Centre and thereafter returned to work for your father for a period of two years or so.
16 In 2014, you opened a gymnasium with another man named Mr America. You traded under the name "Performance Training Centre Rowville".
17 The years 2014 and 2015 proved to be tumultuous years in your life. You fell out with your business partner and sold your business. As well, you separated from your partner of many years, Amy.
18
From the age of 21 until the time of your offending, you were active in power lifting. It is in that context that you committed the instant offences. Since your offending, you have remained active in this sport and “work-out” five days
a week for periods of one and a half to two hours at a time.
19 Your present circumstances are that you live alone in a rented unit in Rowville, paying $1,500 per month by way of rent. You work principally as a nutritionist and have a client base which was described to me by Mr Eddy, solicitor, who appeared on your behalf, as young athletes and women between the ages of 30 and 40. The athletes are looking for advice in respect of nutrition to enhance their performance, whilst the female clients seem to be motivated to use your services to maintain a healthy lifestyle. You earn approximately $1,000 per week from this endeavour. I was told you have no debt and have savings of approximately $20,000.
20 Of recent times, you have met another woman named Stella and there is some prospect that you will live together in the future.
21 Tendered as Exhibit 1 on the plea was a letter addressed to the presiding judge, in which you described the personal circumstances that applied to you at the time of the commission of the instant offences. You wrote that you took full responsibility for your actions and that the experience of the prosecution has proved a salutary lesson to you.
22 Of concern is the contents of the paragraph 32 of the report of Mr Cummins where he reports:
“At interview, he acknowledged he had felt so focused on and passionate about power lifting that he ignored the ‘warning’ concerning the wrongfulness of his offending, which had been brought to his attention through him receiving a number of seizure notices in both his name and in the name of Graham Connors.”
23 Despite being warned about your illegal conduct, you continued to re-offend.
24 As a result of your breakup with Amy and your business partner, you underwent counselling for the depression which you experienced as a result of these events. Mr Eddy did not pray in aid any of the limbs in R v Verdins on your behalf.
25 Tendered as Exhibit 2 were a number of references from your sister and her husband and two business associates. Each of your referees were aware that you were facing criminal charges and the nature of them. You were described as sincerely remorseful, that your conduct was out of character, which was generally one of honesty and integrity. You were described as a genuinely caring and helpful person and in particular, a person who had provided support to one of your referees on the death of his father.
26
The principles that apply to sentencing drug importation offences, to my mind, are equally applicable to your situation. In that respect, I refer to the principles set out in Nguyen v R [2011] 31 VR 673 at [33 – 35]. General deterrence must play an important part in the exercise of my sentencing discretion. Other
like-minded people must be deterred from committing crimes of this kind. However, in respect to your role and the like, I accept the frank admissions that you made to investigators, that the importations were for your personal use and in part to supply your friends who were also involved in power lifting.
27 There was a delay of some nine months or so in the prosecuting authorities issuing proceedings and bringing your matter to court and during that time, you did not further offend and went about restructuring your life to arrive at a position where you are earning your livelihood by way of a nutritionist. I take this matter into account when arriving at an appropriate sentence in your case.
28 You entered your pleas at the earliest opportunity and you are entitled to the benefits which flow to you from your plea; namely that it has utilitarian benefit and that it is evidence of your remorse. I accept that you are remorseful for your criminal conduct. Mr Buckley, solicitor, who appeared on behalf of the Commonwealth Director of Public Prosecutions in most helpful written submissions, set out the principles that apply in sentencing you.
29 As to the question of rehabilitation, I regard your prospects as guarded, as you remain active in the sport that caused you to use steroids and ultimately offend in respect to them.
30
The offending, the subject of the first three counts on the indictment, calls for
a term of imprisonment. However, in accordance with your solicitor’s submissions and those of Mr Buckley, in the circumstances of your case, it is appropriate that you be released on a recognisance release order, pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth). This appears to be in conformity with the sentences of other courts in this and other States in respect to offending not dissimilar to your own.
31 In respect to the fourth count on the indictment, because of its limited duration and nature, it is appropriate to release you on a community corrections order. The appropriate sentencing disposition in respect to the related summary offence is conviction and fine.
32 Would you please stand.
33 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
34 On Charge 1, I sentence you to 12 months’ imprisonment to commence today, 28 June 2017.
35
On Charge 2, I sentence you to 12 months’ imprisonment to commence on
28 September 2017.
36
On Charge 3, I sentence you to 12 months’ imprisonment to commence on
28 December 2017.
37 This results in a total effective sentence of 18 months’ imprisonment and I order that you be released on a recognizance under s.20(1)(b) of the Crimes Act 1914 (Cth), in the sum of $1,000 for a period of three years.
38 On Charge 4, I sentence you to a community corrections order for a period three years, with condition that you perform 300 hours of unpaid community work.
39 In respect to this part of my sentence, I may only impose it if you consent to it. Do you consent to being released on a community corrections order?
40 OFFENDER: I do, Your Honour.
41 HIS HONOUR: Thank you.
42 On the related summary offence, I convict and fine you $2,000 and I grant you a stay of six months to pay that fine.
43 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty in respect to Charge 4 on the indictment, I would have sentenced you to three months’ imprisonment.
44 You may be seated whilst the documents are prepared.
45 MR BUCKLEY: Thank you, Your Honour, I'll prepare that draft recognizance release order.
46 HIS HONOUR: Thank you.
47 MR BUCKLEY: If I can just confirm some of the details?
48 HIS HONOUR: Yes.
49 MR BUCKLEY: It was a total sentence of 18 months' imprisonment?
50 HIS HONOUR: Yes.
51 MR BUCKLEY: To be released forthwith.
52 HIS HONOUR: Yes.
53 MR BUCKLEY: No need for a surety, but by recognizance of $1,000?
54 HIS HONOUR: Correct.
55 MR BUCKLEY: To comply with one condition, being that the defendant be of good behaviour for three years?
56 HIS HONOUR: Correct.
57 MR BUCKLEY: I will complete that now, Your Honour. And, Your Honour, pursuant to s.16F of the Crimes Act.
58 HIS HONOUR: Yes.
59 MR BUCKLEY: At an appropriate time, Your Honour needs to explain to the offender the consequence of breaching that order.
60 HIS HONOUR: Yes. Thank you very much for that.
61 MR BUCKLEY: I can hand up a copy of that draft order.
62 HIS HONOUR: Thank you very much.
63 MR BUCKLEY: I have shown that to my friend.
64 HIS HONOUR: Mr Hough, you can come out of the dock now. Come to the prosecutor's end of the Bar table. My associate will bring two documents to you. One is the recognizance release order for you to sign and the other is the community corrections order. Would you oversee that please, Mr Buckley. It was the practice when I was a prosecutor.
65 Mr Hough, could you please stand up.
66 What has happened here today is, you have been sentenced to 18 months' imprisonment. You have been released immediately. That term of 18 months' imprisonment is suspended, effectively, for a period of three years. You undertake to good behaviour for that period of time. If you are not of good behaviour, you breach this undertaking and you come back to me and you will serve the 18 months gaol.
67 OFFENDER: I understand that.
68 HIS HONOUR: So you walk a tightrope for the next three years.
69 Now in addition, I have placed you on a community corrections order in respect to that trafficking. That means that you must attend at the Dandenong Community Corrections Services at 46 to 50 Walker Street, Dandenong, within two clear working days after the commencement of this order.
70 There are a number of mandatory conditions that are set out in this document, but the only condition I have placed on you, is that you perform 300 hours of unpaid community work during that period of three years. So these two orders run concurrently and for the same period. Copies of these will be made for you.
71 In addition, you have been fined that amount of money and there is a stay of six months in respect of that.
72 Now, please be seated.
73 What will happen now - behind your counsel. Copies of these documents will be made available to the parties and to you.
74 MR BUCKLEY: Your Honour, is there any further information that I can provide to assist with the fine order? Would your associate have the relevant agency?
75 HIS HONOUR: It is paid to the registrar of the County Court.
76 MR BUCKLEY: All right.
77 HIS HONOUR: You will receive a copy of my orders.
78 MR BUCKLEY: Thank you, Your Honour.
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