Gill v The Chief Executive Officer of Customs
[2009] WASC 222
•14 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GILL -v- THE CHIEF EXECUTIVE OFFICER OF CUSTOMS [2009] WASC 222
CORAM: HALL J
HEARD: 31 JULY 2009
DELIVERED : 14 AUGUST 2009
FILE NO/S: SJA 1028 of 2009
BETWEEN: JONATHAN EDWARD GILL
Appellant
AND
THE CHIEF EXECUTIVE OFFICER OF CUSTOMS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
Citation :PE 70528 of 2008, PE 70529 of 2008, PE 70530 of 2008, PE 70531 of 2008
Catchwords:
Criminal law - Sentencing principles - Importation of anabolic steroids - False statement - Appropriate level of fines
Legislation:
Customs Act 1901 (Cth)
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr S W O'Sullivan
Respondent: Ms L B Black
Solicitors:
Appellant: Gibson & Gibson
Respondent: Australian Government Solicitor
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2004] 216 CLR 161
Duffy v Richardson [2004] ACTSC 47
House v The King (1936) 55 CLR 499
Johnson v Hayter [2001] WASCA 118
Lanham v Brake (1983) 13 A Crim R 293
Roffey v The State of Western Australia [2007] WASCA 247
The Queen v Temmingh [2005] NSWCCA 261
HALL J: On 27 February 2009 the appellant was convicted of six offences of importing a prohibited import contrary to s 233(1)(b) of the Customs Act 1901 (Cth) and one offence of making a false statement contrary to s 234(1)(d)(i) of the Customs Act. For these offences he was fined a total of $27,000.
By this appeal the appellant claims that the fines imposed were, both individually and in total, excessive such as to disclose an error on the part of the learned magistrate.
Background
The appellant arrived at Perth International Airport on 5 May 2008. He presented an incoming passenger card to a customs officer and said that he had read and understood all of the questions on the card and had nothing to declare. One of the questions on the card related to whether items such as medicines, steroids or illicit drugs were being brought into Australia. To this question the appellant answered 'No'.
The appellant collected his four pieces of luggage and was then selected for baggage examination. During the examination the appellant was questioned by a customs officer and said that he had read and understood all of the questions on the incoming passenger card, that it was his signature on the card, that he had packed the bags himself, that he was fully aware of the contents of the bags, that the contents belonged to him, and that there was nothing in his baggage that was prohibited or that he ought to have declared.
The search of the appellant's bags resulted in the discovery of a number of items. In particular, 87 tablets of valium, containing a total of 870 mg of Diazepam were located in a long black sports bag; 500 tablets of Dronabol containing 5,000 mg of Methandenone were located in a blue plastic bag inside a blue sports bag; 3 (1 ml) ampoules of Sustanon 250 or testosterone were located in the long black sports; and 16 (1 ml) ampoules of Nandrolone in 50 ml concentration and 3 (1 ml) ampoules of Nandrolone at 100 ml concentration were both located in a small gift bag.
During the baggage examination the appellant was asked, prior to the finding of the first and each subsequent item, if he had anything to declare. On each of the four occasions he was asked, he denied having anything further to declare. The appellant was then cautioned and stated to a customs officer that he did not have permission to import the steroids, but they belonged to him. He said that he had bought the goods at a drugstore in Bangkok, Thailand. He also said that he had researched the steroids on the internet prior to purchasing them and that they were intended for personal use.
The appellant was charged with six offences as follows:
1.Intentionally making a statement to a customs officer, reckless as to the fact that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act 1901.
2.Importing a prohibited import, namely Diazepam (valium) in contravention of reg 5 of the Customs (Prohibited Imports) Regulations 1956 and Item 56 of Schedule 4 to those regulations contrary to s 233(1)(b) of the Customs Act 1901.
3.Importing a prohibited import, namely an anabolic or androgenic substance known as Methandenone (Dronabol) in contravention of reg 5H of the Customs (Prohibited Imports) Regulations 1956 and Item 3C of Schedule 8 to those regulations contrary to s 233(1)(b) of the Customs Act 1901.
4.Importing a prohibited import, namely an anabolic or androgenic substance known as testosterone (Sustanon 250) in contravention of reg 5H of the Customs (Prohibited Imports) Regulations 1956 and Item 3C of Schedule 8 to those regulations contrary to s 233(1)(b) of the Customs Act 1901.
5.Importing a prohibited import, namely an anabolic or androgenic substance known as Decadurabolin (Nandrolone Decanoate) in contravention of reg 5H of the Customs (Prohibited Imports) Regulations 1956 and Item 3C of Schedule 8 to those regulations contrary to s 233(1)(b) of the Customs Act 1901.
6.Importing a prohibited import, namely an anabolic or androgenic substance known as Decadurabolin (Nandrolone Decanoate) in contravention of reg 5H of the Customs (Prohibited Imports) Regulations 1956 and Item 3C of Schedule 8 to those regulations contrary to s 233(1)(b) of the Customs Act 1901.
There were two charges relating to the Nandrolone because, although all of the Nandrolone had been found in the same location, ampoules of two different levels of concentration were located.
The appellant was served with a copy of the prosecution notice but did not attend court on 27 February 2009. He had previously indicated an intention to plead guilty and had the option of entering such a plea by writing to the court. He had not written to the court as at 27 February 2009 and the learned magistrate said that she would proceed under s 55 of the Criminal Procedure Act 2004 (WA). This enables a court in circumstances such as this to hear and determine charges in the accused's absence.
There does not appear to have been a hearing as such. The learned magistrate asked for the facts to be read by the prosecutor and then stated that she found each of the charges proven. However, no issue was taken with whether there was a proper hearing. In any event, each of the prosecution notices had annexed to it written averments by the prosecution. These averments were presumably made pursuant to s 255 of the Customs Act and were sufficient to prove the charges in the absence of evidence to the contrary.
The learned magistrate imposed a fine of $5,000 for the false statement charge, $2,000 for the charge relating to the Diazepam and $5,000 on each of the remaining charges. The total fines were, therefore, $27,000. The appellant was also ordered to pay costs of $7,992.20.
Ground of appeal
There is one ground of appeal, although it is divided into six parts. The ground reads:
The learned Magistrate erred in law and in fact in that she:
(a)Failed to consider or give proper consideration to the material fact that the offences were not committed for any commercial purpose.
(b)Failed to consider or give proper consideration to the material fact that there was no basis for concluding that the substances imported were for other than the Appellant's personal use.
(c)Failed to consider or give proper consideration to the Appellant's personal circumstances including the material fact that he had no relevant prior convictions and to his limited financial means.
(d)Failed to consider or give proper consideration to the material fact that all offences were part of the same event.
(e)Imposed single penalties and no overall penalty which exceeded the amount or amount which would be appropriate given the applicable sentencing principles and penalties for comparable conduct.
(f)In the circumstances particularised above the learned Magistrate imposed sentencing which individually and in their totality were excessive.
At the hearing of the appeal counsel for the appellant said that the grounds had been drafted prior to the availability of the transcript of the sentencing proceedings. I understood this to mean that some of the sub‑grounds might not have been pressed had that transcript been available, however none of them were formally abandoned. Oral argument was, however, focused on the last two sub‑grounds and on the proposition that the fines imposed were, both individually and in their totality, manifestly excessive.
The law relating to sentencing appeals
Sentencing involves the exercise of a judicial discretion. In Housev The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 ‑ 505).
In Chan v The Queen (1989) 38 A Crim R 337 Malcolm CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).
Relevant provisions of the Customs Act
The appellant was charged with one offence of making a false statement. That offence was contrary to s 234 of the Customs Act. That section relevantly reads:
234Customs Offences
(1)A person shall not:
…
(d)do any of the following:
(i)intentionally make or cause to be made a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular.
…
Section 234(2)(c) provides that the maximum penalty for such an offence is a fine not exceeding 100 penalty units. A penalty unit is $110 (Crimes Act 1914 (Cth), s 4AA) and, accordingly, the maximum penalty is $11,000. Where a false statement relates to the amount of duty payable on imported goods the maximum penalty is 50 penalty units and twice the amount of duty payable on those goods, but that did not apply in this case (s 234(3)).
The appellant was also charged with five offences of importing prohibited imports contrary to s 233 of the Customs Act. That section relevantly provides:
233Smuggling and unlawful importation and exportation
(1)A person shall not:
…
(b)import any prohibited imports.
…
(1AA)A person who contravenes subsection (1) is guilty of an offence punishable upon conviction:
(a)in the case of an offence against paragraph (1)(a) or an offence against paragraph (1)(d) in relation to smuggled goods - as provided by subsection 233AB(1); or
(b)in any other case - as provided by subsection 233AB(2).
Section 233AB(2) relevantly provides:
233ABPenalties for offences against sections 233 and 233A
…
(2)Where an offence is punishable as provided by this subsection, the penalty applicable to the offence is:
(a)where the Court can determine the value of the goods to which the offence relates, a penalty not exceeding:
(i)3 times the value of those goods; or
(ii)1,000 penalty units;
whichever is the greater; or
(b)where the Court cannot determine the value of those goods ‑ a penalty not exceeding 1,000 penalty units.
In the present case no value was ascribed to the imported goods so the maximum penalty was 1,000 penalty units which is equivalent to $110,000.
These proceedings were 'customs prosecutions' as defined by s 244 of the Customs Act. As such the institution of proceedings for these offences and the maximum penalties that could be imposed in the Magistrates Court were provided for by s 245 of the Customs Act. Section 245 provides:
245Institution of prosecutions
(1)Customs prosecutions may be instituted by the CEO in the name of the office of the CEO by action, information or other appropriate proceeding:
(a)in the Supreme Court of a State;
(b)in the Supreme Court of the Australian Capital Territory;
(c)in the Supreme Court of the Northern Territory;
(d)in a County Court or District Court of a State;
(e)in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; or
(f)in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory.
(2)Where a Customs prosecution for a pecuniary penalty that, but for this section, would exceed 400 penalty units is instituted in a Court referred to in paragraph (1)(d) or (e), the amount of that penalty that exceeds 400 penalty units shall be taken to have been abandoned.
(4)Where a Customs prosecution for a pecuniary penalty that, but for this subsection, would exceed 200 penalty units is instituted in a court referred to in paragraph (1)(f), the amount of that penalty that exceeds 200 penalty units shall be taken to have been abandoned.
In consequence of s 245(4) the maximum penalty that could be sought by the prosecution for the importation offences was $22,000 in each case.
Although Customs prosecutions can be commenced and proceeded with in accordance with the usual practice and procedure applicable to civil cases in the relevant court (s 247 of the Customs Act), they remain essentially criminal in nature and the criminal standard of proof applies: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2004] 216 CLR 161.
Customs prosecutions brought in higher courts often relate to the evasion of duty, but they can also be brought, as here, to deal with the importation of items which are prohibited regardless of value. The fact that Customs prosecutions can relate to a vast range of conduct from large evasions of duty to small importations of prohibited substances such as chemicals or steroids is relevant in considering the significance of the maximum penalty.
The respondent submitted that to determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime. It was also submitted that it is important to note that the maximum penalty on summary conviction is a jurisdictional limit rather than the maximum penalty for the offence: Johnson v Hayter [2001] WASCA 118 at [10]. However, in my view, it is important to bear in mind that the maximum penalty is not one that is confined to the importation of drugs or steroids like those involved here. The Customs (Prohibited Imports) Regulations 1956 (Cth) also list a range of other things which cannot be imported (either at all or without permission) including certain breeds of dog, human embryo clones, weapons, certain toys, items containing specific concentrations of lead or other metals, and some chemicals. In these circumstances, the maximum penalty cannot necessarily be understood as an indication of the seriousness with which the legislature views the importation of anabolic steroids in particular. Any assessment of the seriousness of these offences by reference to the maximum penalty needs to take into account the range of conduct that the offence encompasses.
The history of Customs prosecutions indicates that they were originally designed to address risks to the revenue: Chief Executive Officer v Labrador Liquor per Hayne J at [107]. They are characterised as being proceedings for a pecuniary penalty and are sometimes distinguished on this basis from criminal proceedings, though that is a distinction that can lead to confusion (as Chief Executive Officer v Labrador Liquor illustrates).
Because Customs prosecutions are revenue focussed they are not necessarily well suited to deal with the importation of otherwise illegal or dangerous drugs. This was recognised by the legislature by the inclusion of a specific provision relating to narcotic drugs: s 233B. Narcotic drugs are also excluded from the prohibition in s 233 by s 233(5).
In 1999 the legislature also included a specific provision relating to some non‑narcotic drugs. That section is s 233BAA. That section provides that the regulations can specify performance enhancing drugs as Tier 1 goods. Regulation 179AA of the Customs Regulations 1926 (Cth) provides that goods specified in Part 1 of Schedule 1AA constitute Tier 1 goods. Anabolic or androgenic substances are included in that schedule. The drugs in this case, other than valium, were anabolic or androgenic substances.
Section 233BAA also provides that it is an offence to intentionally import Tier 1 goods where the quantity exceeds the critical quantity. The critical quantity in respect of anabolic or androgenic substances is 20 grams. The penalty for such an offence is 1,000 penalty units or imprisonment for 5 years or both.
The purpose of the offence in s 233BAA was to introduce 'a new two‑tiered penalty regime for the unlawful importation or exportation of certain prescribed prohibited goods, which extends to criminal sanctions'. (Explanatory Memorandum, Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999 (Cth)). The Explanatory Memorandum went on to say that 'this new section does not establish a new class of prohibited goods, rather it creates new penalties relating to the unlawful importation or exportation of existing classes of prohibited goods'.
Unlike narcotic drugs, which are excluded from the operation of s 233, anabolic or androgenic substances continue to be prohibited imports for the purpose of that section. The effect of this is that a person who imports such substances is liable to be prosecuted under s 233, but where the amount imported is more than the critical quantity they can, as an alternative, be prosecuted under s 233BAA. The material difference is that when charged with importing in excess of 20 grams, contrary to s 233BAA, the offender is exposed to a possible penalty that includes imprisonment. The maximum fine is, however, the same.
In the present case, the amounts of anabolic or androgenic substances that were imported were less than 20 grams and thus the appellant was not liable to be prosecuted under s 233BAA. However, the existence of that provision is important in taking into account the statutory context of s 233 and the maximum penalty provided for that offence. It is also relevant because the only reported cases that could be located for offences involving the importation of anabolic or androgenic substances were in respect of s 233BAA offences.
It should also be noted that the other drug imported, namely valium, is subject to a different statutory regime than that applicable to steroids. Anabolic and androgenic steroids are prohibited imports unless a permit has been granted (reg 5H Customs (Prohibited Imports) Regulations 1956). Valium can be imported under licence or with a permit. Significantly, it can also be imported by a passenger on an aircraft if it has been supplied in accordance with a prescription of a medical practitioner (reg 5 Customs (Prohibited Imports) Regulations 1956). There was no suggestion of the appellant having a prescription for the valium, however it is relevant to take into account the fact that it is not a drug the importation of which is absolutely prohibited.
Comparative sentences
In Duffy v Richardson [2004] ACTSC 47 the appellant was sentenced to 5 months' periodic detention for possessing a prohibited import, namely 223.9 g of the anabolic steroid testosterone. The offence in that case did not come to light at the Customs barrier but only when the appellant had photographs developed which showed pills being crushed in a mortar and pestle. The photographic development laboratory informed the authorities. Connolly J noted that the amount involved was some eleven times the critical quantity. His Honour said that whilst it was accepted that the substance was for personal use, such a large quantity would last for a period of two years on the basis of the appellant's rate of use. His Honour held that the sentence imposed was an appropriate use of sentencing discretion and dismissed the appeal. The amount in that case was very significantly more than the present case.
In The Queen v Temmingh [2005] NSWCCA 261 the prosecution appealed against a sentence of a conditional release order under s 20 of the Crimes Act. That release was conditional upon the respondent being of good behaviour for three years and paying a pecuniary penalty of $30,000. The respondent was charged under s 233BAA with importing some 5 kgs of Nandrolone Decanoate. It was clear that this importation could not be for personal use and the potential resale value was estimated as being in the order of $200,000. The court noted that the respondent had paid US$10,500 to his supplier in China, so the potential profit was significant. He had also arranged for the Nandrolone Decanoate to be shipped to Australia bearing a false label. The respondent was a deregistered veterinarian and had previously been convicted of unlawfully supplying injectable steroids for which he had been fined $3,000 and wilfully making a false entry in a record in relation to steroids for which he had been fined $2,000.
In relation to the s 233BAA offence the Court of Criminal Appeal of New South Wales found that the sentencing judge had failed to have regard to the size of the importation, it being more than 200 times the critical quantity. There had also been a failure to have due regard to the element of planning and deception involved in the importation. The court held that a custodial sentence should have been imposed but, taking into account the element of double jeopardy on a prosecution appeal, held that it was appropriate on appeal to impose a suspended sentence. The court imposed a suspended sentence of 12 months' imprisonment with conditions that the respondent be of good behaviour for 3 years and pay a pecuniary penalty of $30,000. Clearly the facts in Temmingh are very much more serious than in the present case.
Neither the appellant nor the respondent were able to refer me to any reported decisions that were comparable to the facts in the present case. However, the respondent did provide the court with a table setting out recent fines imposed for comparable offences in the Magistrates Court. A copy of that table (with the names edited) is annexed to this decision. It would not appear that this information was provided to the learned magistrate.
From an examination of the information on that table a number of things are apparent. Firstly, the total fines imposed in this case, being $27,000, are more than two and a half times higher than the next highest fines, being $10,000. Secondly, the $5,000 fine for the false statement is more than two and a half times higher than the next highest penalty for such an offence on the table, being $1,500. Thirdly, in respect of some of the other matters, substances are referred to by a generic name or are grouped together in respect of a single fine. It is not clear whether this is because they were grouped together under a single charge or because the fine relates to a total for a number of separate charges. On the hearing of the appeal counsel for the respondent indicated that, at least in respect of one of the items on the table, the single fine of $5,000 for Case 6, which was ascribed to a range of different substances, this was a total that had resulted from separate charges relating to each of the substances. If this is so it only makes the inconsistency more apparent because it cannot be explained on the grounds that there were more individual offences in this case than in some of the others. Fourthly, the individual fines imposed in this case do not appear to be consistent with fines imposed in other cases bearing in mind the quantities involved. For example, a $5,000 fine in this case for 3 (1 ml) ampoules of testosterone can be compared with the same fine imposed for 30 (200 ml) ampoules of testosterone, 149 (25 ml) tablets of testosterone and 50 tablets of Clomophine Citrate in another case.
Application to the present case
At the hearing of this appeal counsel for the respondent submitted that the penalties imposed in this case, whilst high, were at the upper most end of the appropriate range. It was submitted that the false statement offence, whilst complete at the time that the passenger card was signed and submitted, was not mitigated by the fact that the appellant made numerous denials subsequently when his bags were being searched.
As regards the importation offences, the respondent submitted that there were a number of different substances imported and this was reflected in the five charges. It was also submitted that there were health risks related to the substances. In submissions to the learned magistrate these risks had been identified as being, in relation to Dronabol, enlargement of breasts in men, high blood pressure, liver and kidney damage and increased aggression. For Sustanon and Decadurabolin, the effects could include damage to the liver, skin, cardiovascular and endocrine systems. These substances could also promote the growth of tumours and produce psychiatric symptoms including aggression. However, it would appear that those risks related to the use of the substances in general and not necessarily to the quantities that were involved in these offences.
Whilst there were five offences of importing a prohibited import, they related to the same transaction. All of the items had been imported in the appellant's luggage on the same occasion. On the basis of the admissions made by the appellant to custom officers at the time, which were not challenged, he had purchased all the items at the same time in Bangkok. Two of the charges related to the same substance, Nandrolone Decanoate, and it would appear that separate charges were preferred because ampoules containing two levels of concentration were located. Accordingly, whilst there were five separate charges of importation, sentencing required that due regard be had to the circumstances in which those offences occurred. Given those circumstances, it was important that the total fines appropriately reflected the criminality of the conduct involved.
As to the quantities involved, it could not be said that they were large when compared to other cases. The cases relating to charges under s 233BAA provide some indication of the types of quantities that can be the subject of unlawful importations. When compared to other cases in the table provided by the respondent, the amounts in this case are not appreciably higher than in other like matters. Whilst some of the individual fines could conceivably be justified others appear to be beyond the appropriate range.
It is also noteworthy that the learned magistrate appears to have made no distinction between the four charges relating to the anabolic or androgenic substances, imposing $5,000 fines for each of these offences notwithstanding the difference in the amounts involved.
In Roffey v The State of Western Australia [2007] WASCA 247 McLure JA said at [24]:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
In my view, the total fines of $27,000 were disproportionate to the overall criminality involved and were manifestly excessive. Whatever the reason for that was, this indicates that the learned sentencing magistrate's discretion miscarried and that the appeal must be allowed. Before turning to the question of the appropriate sentence I will deal with the grounds of appeal.
Grounds 1(a) and 1(b)
These grounds assert that there was a failure on the part of the learned magistrate to consider the fact that the offences were not committed for any commercial purpose. The only evidence in this regard was the statement made by the appellant at the airport that he intended the steroids for personal use. Nothing was said by the prosecution before the learned magistrate as to whether this claim was accepted or not.
On the hearing of the appeal counsel for the respondent submitted that it was a matter for the learned magistrate as to whether to accept the claim of personal use. It is not apparent that the magistrate took a view one way or the other. Nothing was said in this regard and it was not suggested that the quantities involved were inconsistent with personal use.
These grounds proceed upon the assumption that had the learned magistrate taken into account that there were no indications that there was a commercial purpose she would have imposed different penalties. These grounds rely on the penalties being manifestly excessive and then seek to speculate upon a reason for that. Since I am satisfied that the penalties were manifestly excessive the significance of these grounds falls away.
Ground 1(c)
This ground asserts that the learned magistrate failed to properly take into account the appellant's personal circumstances, including his lack of convictions and his limited means. In fact, the learned magistrate was advised that the appellant did not have any relevant prior convictions and there is nothing to indicate that she did not take this into account.
As regards the appellant's personal circumstances, the respondent points out that the learned magistrate could not properly consider these circumstances as they were unknown to her given that the appellant did not attend court and no submissions were made on his behalf. Again this ground appears to be merely a possible explanation for what I have accepted are manifestly excessive penalties.
Ground 1(d)
This ground asserts that there was a failure on the part of the learned magistrate to properly consider that all the offences were part of the same event. It was apparent from the facts, as presented to the magistrate, that the offences were all part of the same event and should be treated as a course of conduct. There is no specific statement that would indicate that the learned magistrate failed to appreciate this. However, I accept that in imposing the penalties she failed to take into account that the total fines should bear a proportional relationship to the total criminality involved.
Grounds 1(e) and 1(f)
Ground 1(e) asserts that the learned magistrate erred in imposing single penalties and no overall penalty. In submissions on the hearing of the appeal I understood that this ground was intended to mean that the total penalty should be proportionate to the overall criminality. That is a matter that I have already dealt with. Whilst it is open, in some circumstances, to impose a single penalty for multiple offences (s 4K Crimes Act), that was not argued as being the error here.
Ground 1(f) asserts that the learned magistrate imposed sentences which were individually and in their totality excessive. This is the essence of the appeal. As I have already indicated, in my view, the total sentence was excessive.
Conclusion
The total sentence of $27,000 imposed by the learned magistrate was manifestly excessive and, accordingly, she erred in the exercise of her sentencing discretion. The appeal is, therefore, allowed. The penalties imposed by the learned magistrate are set aside and in lieu thereof the following penalties are imposed:
Charge 1
(70528/08)
False statement
$1,500
Charge 2
(70529/08)
Valium
$1,000
Charge 3
(70530/08)
Dronabol
$2,000
Charge 4
(70531/08)
Sustanon 250
$1,000
Charge 5
(70532/08)
Nandrolone Decanoate x 16
$2,000
Charge 6
(70533/08)
Nandrolone Decanoate x 3
$500
TOTAL
$8,000
In imposing these penalties I have taken into account the range of fines imposed in other cases, the relative quantities of substances and the types of substances. I have also had regard to the need for deterrence, both general and specific, the maximum penalties provided by statute, the ease with which offences of this type may be committed and the difficulty in detection (Lanham v Brake (1983) 13 A Crim R 293 at 300 in the similar context of quarantine offences). I have taken into account the evident policy of the legislation and the context in which the offence provisions appear. Finally, bearing in mind that the offences form part of a single course of conduct, I have sought to ensure that the total fines bear an appropriate relationship to the overall conduct.
The order for costs in the Magistrates Court of $7,992.20 is unaffected.
ANNEXURE A
Recent fines issued for comparable offences including the matter in question
| Items Imported | Fines | Costs | Notes | |
| Case 1 (This case) | 870 mg diazepam 5,000 mg (500 tablets) of methandienone (dronabol) | $2,000 $5,000 | $7,992.20 | No attendance by the accused. No plea in mitigation. No information re accused's financial status before the court. Multiple adjournments. |
| 3x 1 mL ampoules Sustanon '250' (testosterone) | $5,000 | |||
| 16x 1 mL ampoules Decaduabolin (50 mg) (nandralone decanoate) | $5,0000 | |||
| 3x 1 mL ampoules Decaduabolin (100 mg) (nandralone decanoate) | $5,0000 + $5,0000 for false statement | |||
| Case 2 | 606 'Anabol' tablets, containing a total of 3,030 mg of methandienone | $3,000 + $1,000 for false statement | $4,678.40 | Accused unrepresented and did not attend. |
| Case 3 | 1,000 tablets containing 10 g of diazepam | $4,500 + $1,000 for false statement | $1,923.40 | Represented by duty counsel. |
| Case 4 | 200 squares of methandrostenolone | $5,000 | $4,133.40 | No appearance by the accused. |
| 146 squares of methandrostenolone | $5,000 | |||
| Items Imported | Fines | Costs | Notes | |
| Case 4 (cont.) | 195 squares of stanazolol (possession of prohibited import) | Postal importation charge and possession of prohibited import. (Note: additional charge re daggers and star knife.) | ||
| Case 5 | 650 pseudo‑ephidrine tablets | $2,500 + $750 for false statement | $1,000 | Accused represented. |
| Case 6 | 30x 200 mg ampoules of testosterone 149 x 25 mg tablets of 'Provironum' (testosterone) 50 tablets of clomiphene citrate | $5,000 | $1,500 | Accused represented. Court took into account the early plea and the accused's financial circumstances. |
| Case 7 | 15 ampoules of Sustanon '250' 110 tablets of methandienone 20 tablets of Fertomid‑5 (clomiphene citrate) 8 vials of Sustanon '250' | $6,000 | $1,000 | Postal importation. Self represented. |
| Case 8 | Import 16 sachets of testosterone (anabolic/androgenic substance) | $4,000 | $750 | Accused represented. Attempt to conceal. |
| Unlawful possession of 75 ephedrine tablets | $2,000 (for both unlawful possession charges together) | Awareness of prohibited nature of substances. |
| Items Imported | Fines | Costs | Notes | |
| Case 8 (cont.) | Unlawful possession of anabolic/androgenic substances | No evidence for medical reasons given. | ||
| Case 9 | 2 ampoules of gonadotrophin | $750 | $500 | Accused represented. |
| 2 ampoules of growth hormone | $750 + $500 for false statement | |||
| Case 10 | 495 tablets containing anabolic or androgenic substances | $2,500 + $1,500 for false statement | $2,000 | Accused represented. |
| Case 11 | 499.5 tablets containing anabolic or androgenic substances | $2,500 + $1,500 for false statement | $2,000 | Accused represented. |
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