Gerard Austin Duffy v Mark Richardson - [2004] ACTSC 47

GERARD AUSTIN DUFFY v MARK RICHARDSON
[2004] ACTSC 47 (18 June 2004)

SENTENCE – Magistrates Court – appeal against sentence – importation of prohibited anabolic steroid – conscious attempt to conceal substance – 223.9 grams being eleven times the permitted amount – periodic detention for 20 weekends – sentence within appropriate range.

Customs Act 1901 (Cth), s 233BAA(4)

Customs Regulations 1926, Schedule 1AA, reg 179AA

R v Brewer [2004] ACTCA 10

DPP(Cth) v El Karhani (1990) 21 NSWLR 370

R v McKeagg (unreported, District Court of Western Australia, 14 March 2003)

Sentencing Manual, Law Principles and Practice in New South Wales (Judicial Commission of NSW, Sydney, 2001).

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 14 of 2004

Judge: Connolly J
Supreme Court of the ACT
Date: 18 June 2004

IN THE SUPREME COURT OF THE       )
  )          No SCA 14 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:GERARD AUSTIN DUFFY
Appellant

AND:MARK RICHARDSON
Respondent

ORDER

Judge:  Connolly J
Date:  18 June 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against sentence be dismissed.

The Magistrate’s orders be confirmed.

This is an appeal from a decision of a Magistrate who on 4 March 2004, following a plea of guilty to the offence of possessing a prohibited import, namely 223.9 grams of the anabolic steroid testosterone, sentenced the appellant to five months imprisonment to be served by way of 20 periods of periodic detention. The appellant appeals against the severity of the sentence. He was also charged and convicted of a Commonwealth offence going to a false Customs declaration, and an ACT offence. The penalties imposed for these offences are not subject to appeal.

The offence involved the importation into Australia of a quantity of the prohibited anabolic steroid testosterone. The statement of facts before the Magistrate indicated that the appellant returned to Australia from a trip abroad on 1 October 2003. The day after his return the appellant had photographs developed, and the photo development laboratory informed authorities that some of the photographs “depicted blue pills being crushed by pestle and mortar, hundreds of pink tablets and hundreds of vials” (AB 9). As a result of this information police executed a search warrant on the appellant’s premises on 15 October 2003. The statement of facts states -

During the execution of the search warrant, police found that the defendant had in his possession a grey suitcase containing 7 boxed bottles of ‘glacier aftershave’ and 1 boxed bottle of ‘musk aftershave’. The defendant stated during the execution of the warrant that the bottles were in fact testosterone which he personally transferred from vials into aftershave bottles. He stated that he used these substances to build up bones and muscle strength.
Also found were 2 “glad sandwich bags” that the defendant stated contained crushed pills that he also used to build muscle strength.
Further jars of clear liquid were also found; the defendant stated that they also contained testosterone.
The defendant stated to…

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.

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Details

Case: [2004] ACTSC 47
Decision Date

CaseChat Overview and Summary

Gerard Austin Duffy appeals against the sentence imposed by a Magistrate for importing and possessing a prohibited substance, testosterone, in contravention of the Customs Act 1901 (Cth). The appeal was heard in the Supreme Court of the Australian Capital Territory by Connolly J. The appellant argues that the Magistrate erred in not considering the submission that the importation was for therapeutic purposes as a mitigating factor.

The primary legal issue was whether the Magistrate erred in not accepting that the importation of the anabolic steroid was for therapeutic purposes. The appellant argued that he imported the substance for pain relief from injuries sustained in a motor vehicle accident in Thailand, and that this should be a mitigating factor. The respondent submitted that the purpose of the legislation was to prohibit self-medication and that it was not appropriate for the court to second-guess Parliament’s intention.

The court held that it was not open to the Magistrate to accept the appellant’s assertion that the importation was for therapeutic purposes in the absence of medical evidence. The court further held that even if there had been such evidence, it would not have been appropriate for the Magistrate to accept it as a mitigating factor because it would have negated the purpose of the legislation, which is to prohibit self-medication. The court concluded that the Magistrate’s decision not to accept the therapeutic use argument as a mitigating factor was correct, and that the sentence imposed was within the appropriate range.

The court dismissed the appeal against sentence and confirmed the Magistrate’s orders. The court found that the sentence of five months of periodic detention was an appropriate use of the sentencing discretion, taking into account the appellant’s prior good character and early plea of guilty. The court also noted the importance of general deterrence in sentencing for this type of offence.

Orders