Director of Public Prosecutions v Taylor

[2022] VCC 1313

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Indictment No.  F12824046.  1
CR-20-01043

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBIN TAYLOR

---

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022
DATE OF SENTENCE:	19 August 2022
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1313

SENTENCE

Subject:Trafficking a drug of dependence

Catchwords:              Selling anabolic steroids to bodybuilders – guilty plea – resentence after successful appeal against conviction – nine-year delay in sentencing – substantial progress to rehabilitation

Legislation Cited:      

Cases Cited:

Sentence:Three years imprisonment wholly suspended for three years

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.  Grant with Mr C.  Gauld	Office of Public Prosecutions
For the Accused	Mr D.  Dann SC	Sarah Pratt & Associates

HIS HONOUR:

1Robin Taylor, you have pleaded guilty to a charge of trafficking in a drug of dependence, namely testosterone, methandienone, stanozolol, methenolone, nandrolone and prasterone, contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

2Your offending occurred between 1 January 2013 and 8 October 2013.  The circumstances are set out in the summary of prosecution opening dated 22 May 2021.[1]

[1] Exhibit B.

3During the charge period, you owned and operated the Melbourne Sports Medicine and Anti-Aging Clinic.  Your clinic offered a range of clinical and pathology services, including onsite blood collection.  The clients were generally bodybuilders and athletes. 

4Your wife, who co-owned the clinic with you, and another woman, worked as receptionists and clinical assistants in the clinic.  The three of you were qualified to take blood from people intravenously. 

5The clinic offered embosarm, somatropin, testosterone and other 'growth promoting products' for sale. 

6The drugs which you trafficked were steroidal agents which increased muscle mass and reduced fat.  They are used medically to treat men for hormone deficiencies, cancer and AIDS.  The law requires them to be prescribed by a medical practitioner and dispensed by a pharmacist. 

7You employed a medical practitioner as a consultant physician at the clinic.  He wrote some prescriptions which enabled you to supply steroidal agents to clients lawfully.  He wrote other illegitimate prescriptions which you used to obtain drugs unlawfully from pharmacies in suburban Melbourne and in Ballina, New South Wales.[2]   You stockpiled the drugs and provided them to clients who had never met the doctor. 

[2] The consultant physician was paid $50 per prescription.  He received $15,500, equivalent to 310 patients (Exhibit E; DPP v Taylor [2018] VCC 426, at 5 (Her Honour Judge Patrick).

8You unlawfully imported other drugs from China, repackaged them and provided them to clients as well. 

9At the clinic, after clients filled out a patient history form with their complaints, you took a blood sample from them.  When you received the blood test results you recommended a treatment program and unlawfully sold them various drugs.  Some were intravenous, administered at times by your wife, the other receptionist or you, or given to the client with syringes to self-administer.  Others were provided in tablet form. 

10On 8 October 2013, when police searched your clinic, they found:

(a)   testosterone;

(b)   methandienone;

(c)   stanozolol;

(d)   methenolone;

(e)   nandrolone;

(f)    152 undispensed prescriptions;

(g)   orders, with prescriptions attached, and invoices for prescribed drugs; and

(h)   the clinic's sales book. 

11At your home they found:

(a)   testosterone;

(b)   methandienone;

(c)   nandrolone;

(d)   prasterone; and

(e)   vials with counterfeit labels. 

Procedural History

12In November 2017, you stood a three-week trial on a charge of trafficking steroidal agents and eight charges of importing various steroidal agents.  The trafficking charge encompassed the same conduct and the same drugs as charged in this indictment, although for a longer period.[3]

[3] Between 1 May 2012 to 8 October 2013.

13On 1 December 2017 a jury convicted you of all charges.  You were remanded in custody on that day. 

14On 9 April 2018 Her Honour Judge Patrick sentenced you to seven years' imprisonment for the trafficking offence and an aggregate sentence of two years' imprisonment for the eight importation offences. 

15Your total effective sentence was seven years' imprisonment.  Her Honour fixed a period of four years and six months before you were eligible for parole.  Your earliest parole release date was 30 April 2021.

16On 27 August 2018 His Honour Judge Carmody sentenced you to 12 months' imprisonment for an unrelated offence of using a false document.[4]  His Honour ordered six months of the sentence be served cumulatively on the sentence you were then undergoing, but made no parole order.  Accordingly, you remained eligible for parole on 30 April 2021. 

[4] This offending is not related to the trafficking at Robin Taylor’s clinic.  In 2013 you provided two false urine screens for an associate to use in legal proceedings.

17On 17 March 2020 the Court of Appeal set aside the trafficking conviction on the grounds 'trafficking steroidal agents' was not a charge known to law because steroidal agents are not a proscribed drug of dependence under the Victorian legislation.[5]

[5] Robin James Taylor v Queen [2020] VSCA 50.

18You were released on that day after you had served two years and 106 days of imprisonment. 

Criminal Record

19You have admitted a criminal record between 1988 and 2010 for drug and dishonesty offences.  Relevantly:

·     On 19 January 2005 at Heidelberg Magistrates' Court you were sentenced to nine months' imprisonment, wholly suspended, for offences including trafficking in a drug of dependence and forging prescriptions. 

·     On 15 January 2010, in this court, you were convicted of offences, including two charges of trafficking, possessing and importing drugs of dependence.  You were sentenced to five years' imprisonment on each of the two trafficking charges, which involved 6.1 kilograms and 614 grams of steroidal agents.  Your total effective sentence was seven years and eight months' imprisonment, with a minimum term of four years.[6]

[6] I have read the Reasons for Sentence of Her Honour Judge Millane: The Queen v Robin Taylor [2010] VCC 0914UR.

20You were released on parole on 12 June 2011.   You reoffended, in substantially the same way, within a year and a half, while you were on parole. 

Personal Circumstances

21You were born in November 1969.  You were 43 years old when you offended.  You are now 52. 

22Your personal circumstances are set out in Carla Ferrari's psychological report dated 2 April 2022.[7]

[7] Exhibit 2.

23When you were six months old your twin sister died as a result of a congenital heart defect.  Your parents separated around this time and your mother raised you.  You have had little to do with your father.  Your mother struggled financially.  She had problems with alcohol and with men.  You grew up without boundaries or supervision.  You did have a good relationship with your grandfather who lived nearby. 

24You had learning and behaviour issues at school.  During Year 10 you left school, and home, and got work at a chemical factory.  For a number of years you worked for Commonwealth Serum Laboratories (CSL) where you assisted in the manufacture of vaccines and human growth hormone. 

25During your 20s and 30s you trained and competed as a bodybuilder. 

26In 2002 you completed a naturopathy course and since 2011 you have operated sports medicine clinics. 

27You have been with your wife for 22 years.  You have a 25-year old daughter from a previous relationship.  While you were absent during her adolescence you have repaired your relationship with her and she has lived with you for several years.

28Around six years ago you learned you have another daughter, who is now 33 years old, from a short term relationship when you were 19.  You described your relationship with her as challenging.  She has a two and a half year old daughter.  You dote on your granddaughter and you are trying to develop a good relationship with her mother and her. 

Psychological Opinions

29In 2017 Ian McKinnon, psychologist, diagnosed you with PTSD and an unspecified personality disorder.[8]

[8] ibid, [46]

30In 2018 Dr Jane Lofthouse, neuropsychologist, diagnosed you with an ABI, which was attributed to a racing car accident in 2017.[9]

[9] ibid, [51]

31You told Ms Ferrari the protracted legal proceedings have impacted your mental health, increasing stress and depression, impacted your relationship with your wife and your daughters and contributed to business stress.[10]

[10] ibid, [66]

32Psychometric testing indicated you have symptoms of generalised anxiety disorder and major depressive disorder.[11]

[11] ibid, [74] – [79]

33The ASRS test, which is based on your self-report, indicated you meet a diagnosis of ADHD.[12]

[12] ibid, [91]

34You told Ms Ferrari you had abused alcohol, cocaine and ecstasy through your 30s.  She believes there may be a link between your depression, anxiety and substance abuse and your ADHD.[13]

[13] ibid, [100]

35In her opinion, because of your psychological conditions, imprisonment would likely weigh more heavily on you than a person without them.[14]

[14] ibid, [110]

36She assessed you as a moderate risk of reoffending considering your history of similar offending and your untreated mental health issues.  She identified your continued employment, supportive family and willingness to engage in counselling, as protective factors.[15]

[15] ibid, [106] – [107]

37To reduce the risk of your reoffending, she recommends counselling for your psychological conditions and alcohol and drug treatment.[16]  I accept her opinions which were unchallenged. 

[16] ibid, [114].

38Between June 2021 and 11 February 2022 you have seen a counsellor, Cheryl‑Lee Garnett, to help you in your relationships with your wife and children.  She wrote you were 'receptive and open to discussion, and willing to explore (your) thought processes during the sessions'.[17]

[17] Exhibit 4, letter dated 22 June 2022.

39In October 2021 you contracted a severe case of COVID-19 and were hospitalised.  You lost a large amount of weight and were off work for two months. 

40On 10 June 2022 you were admitted to Royal Brisbane Hospital for treatment of serious burns to your left leg, hand and right eye as a result of your drag racing car catching fire.[18]  You were hospitalised for two weeks and then returned to Melbourne where you continue to receive outpatient treatment. 

[18] Exhibit 3, Queensland health discharge summary.

41Since your release from prison, apart from driving offences, you have not reoffended[19] and you have successfully re-established your clinic. 

[19] Other than driving offences.

Defence Submissions

42Your counsel, Mr Dann QC, contended while a term of imprisonment is warranted for your offending, in all the circumstances it would be appropriate to wholly suspend it.  In written[20] and oral submissions he relied on the following factors in mitigation of penalty:

·     Firstly, your guilty plea, for its high utilitarian value, including the avoidance of another trial and the Worboyes consideration.[21]

·     Secondly, the unfairness and rehabilitation limbs of the extraordinary delay between your offending and sentencing. 

·     Thirdly, the consideration you fall to be resentenced after a successful appeal against conviction.[22]

·     Fourthly, the totality principle to take into account the period of two years and 106 days you spent in custody between your trial and the quashing of your conviction.[23]

·     Fifthly, the implications of COVID-19, including the risk of contracting the virus in custody[24] and COVID-related custody restrictions.[25] 

·     Sixthly, Judge Patrick's findings you made limited profit from your crime[26], there is no evidence any harm was caused to any particular individual[27], and your psychological conditions engage the application of Verdins principles 5 and 6[28].

·     Seventhly, the reduced period of offending on the current indictment.[29]

[20] Exhibit 1, amended submissions regarding sentencing disposition dated 22 June 2022.

[21] Worboyes [2021] 95 VSCA, [39].

[22] R H McL v R (2000) 203 CLR 452, at 459, [23].

[23] see DPP v TY (No 2) (2009) 24 VR 705.

[24] R v Madex [2020] VSC 145, [51].

[25] DPP v Nelis [2022] VSC 50, [53].

[26] Reasons for sentence, [59] see also DPP v Maxwell (2013) 228 A Crim R 218, [21] – [30].

[27] ibid, [58] and [67].

[28] ibid, [75].

[29] You were previously convicted of trafficking anabolic and androgenic steroidal agents between 1 May 2012 and 8 October 2013.  The duration of the offending in the charge on the indictment is from 1 January 2013 to 8 October 2013.

43I accept they are factors which mitigate your punishment and I will take them into account to moderate the sentence I will impose. 

Prosecution Submissions

44In evidently fair submissions[30] Mr Grant, who appeared with Mr Gauld for the prosecution, submitted yours is a relatively serious example of the offence of trafficking considering:

·     you were carrying on a business selling anabolic and androgenic steroidal agents over a period of nine months;

·     you repackaged and relabelled steroidal agents which you sold to customers;

·     you have a prior conviction for similar offending; and

·     you offended while you were on parole in respect of that offending. 

[30] Oral and written submissions, Exhibit D, prosecution submissions on sentence indication dated 13 May 2022.

45He submitted while a prison term should be imposed, it is open to the court to moderate the sentence by wholly suspending it to take into account mitigating factors, including:

·     the high utilitarian value of your guilty plea;

·     the anxiety of the charge hanging over your head and the progress you have made towards your rehabilitation during the substantial delay in sentencing; and

·     the application of the totality principle to take into account the time you have spent in custody following conviction. 

46I accept the force of these submissions. 

Consideration

47Your offending was objectively serious.   A prison term is warranted.  Ultimately, I accept the submission there are powerful mitigating factors which lead me to conclude it is appropriate to suspend the operation of the sentence of imprisonment I will impose.[31]

[31] See DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547; see also DPP v Carter [1998] 1 VR 601.

Conclusion

48Mr Taylor, by the sentence I impose I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

49Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of trafficking in a drug of dependence you are sentenced to a term of three years' imprisonment, which is wholly suspended for three years. 

50Whilst there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to four years' imprisonment and fixed a non-parole period of two years and six months. 

51I make orders for the disposal of the items listed in the schedule to the draft order, dated 28 June 2022, filed with the court. 

52Mr Grant, are there any matters arising out of those remarks on the sentence that I've announced?

53MR GRANT:  No, thank you, Your Honour.  No.

54HIS HONOUR:  Mr Dann?

55MR DANN:  No, Your Honour.  We had a discussion about pre-sentence detention or I had a discussion with the learned prosecutor.  I think that's adequately disclosed in the various submissions and the sentencing remarks that there has been a period of pre-sentence detention.  It doesn't need an actual declaration.

56HIS HONOUR:  No, I considered that, Mr Dann.  Thank you for raising it.  In my view it doesn't require a declaration of pre-sentence detention.  I attempted to adequately cover that issue in my sentencing reasons and it should be clear that the sentence that I've imposed has been tempered to take into account the two years and 106 days that Mr Taylor spent in custody, but if you have a contrary submission to make I'll hear it.

57MR DANN:  No, I was just clarifying that, Your Honour.  The other aspect is:  with the disposal order we don't - - -

58HIS HONOUR:  Yes.

59MR DANN:  I haven't raised any objection to that.  My client has instructed me that he believes there's an amount of money seized from him.  That amount of money doesn't appear on the order.

60HIS HONOUR:  No.

61MR DANN:  So we'll have to pursue that separately and I just note that, and my learned friend the prosecutor to that fact, but in terms of what's on the disposal order there was no objection.

62HIS HONOUR:  Yes, thank you.  Would you like the link left open so you may speak with Mr Taylor when I adjourn?

63MR DANN:  That's all right, sir.  I can ring him.  That's fine.

64HIS HONOUR:  All right.  Good.  Thank you.  All right.  Counsel, thank you for your assistance.  Adjourn the court, please.

- - -