Porteous v Hua

[2009] QDC 350

DISTRICT COURT OF QUEENSLAND

CITATION:

Porteous v Hua & Anor [2009] QDC 350

PARTIES:

PORTEOUS  

V

HUA & SORBY
  

FILE NO/S:

DC No 617 of 2008

DIVISION:

District Court

PROCEEDING:

Section 222 appeal

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

20 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2009

JUDGE:

Judge Devereaux SC

ORDER:

1.   Appeal allowed;

2.   Orders of the acting magistrate of 15 February 2008 varied by substituting a fine of $6,000 for the fine ordered of $10,125.

CATCHWORDS:

APPEAL – whether fines imposed for breaches by pharmacist of the Health (Drugs and Poisons) Regulation 1996 were manifestly excessive.

Health (Drugs and Poisons) Regulation 1996, ss 5, 51, 64, 81, 84, 86, 87, 97
Justices Act 1886, s222
Penalties and Sentences Act 1992, ss 5,49

COUNSEL:

B H Mumford for appellant

K H Fisher for respondent

SOLICITORS:

Maunsell Pennington for appellant

Crown Law for respondent

1. The appellant pleaded guilty, on 15 February 2008 in the Magistrates Court at Caboolture, to 76 charges brought under the Health (Drugs and Poisons) Regulation 1996 (the Regulation). The offences were committed while the appellant practised as a pharmacist at Morayfield. The appeal, pursuant to s222 of the Justices Act1886, is against the sentences imposed for 75 of the offences.

1. The relevant charges were brought on 2 complaints. 

1. The complaint of the first respondent, Hua, alleged 30 charges: 8 of administering[1] and 2 of selling[2] a controlled drug, namely Subutex, to a person (W) while not being endorsed under the Regulation to do so; and 20 counts of failing to record those 10 transactions (2 charges in respect of each administration or sale).

   [1] s51(4) of the Regulation

   [2] s51(3) of the Regulation

1. The complaint of the second respondent, Sorby, alleged 45 counts of, having supplied a controlled drug on a written instruction, failing to send the written instruction to the chief executive (s84(4) of the Regulation).

1. Acting pursuant to s49 of the Penalties and Sentences Act 1992, the acting magistrate imposed a single fine of $9,000 for the 30 charges on the first complaint.

1. For the 45 charges on the second complaint, the acting magistrate imposed a single fine of $10,125.

1. In each case the acting magistrate ordered the appellant to pay court and professional costs, allowed 6 months to pay and made orders for imprisonment in default.

1. The ground of appeal is that these penalties were manifestly excessive.

1. The appellant had been practising as a pharmacist for about 22 years.  She had no criminal history and had not been subjected to disciplinary proceedings.

The Regulation and the appellant’s offences

1. The Health (Drugs and Poisons) Regulation 1996, among other things, governs the manufacture, supply, distribution and use of controlled drugs, restricted drugs and poisons.  Relevantly, its evident purpose is to reduce abuse and physical or psychological dependence on controlled drugs.

1. “Controlled drug” means an S8 substance in the Standard for the Uniform Scheduling of Drugs and Poisons published by the Commonwealth.[3] 

   [3] Dictionary (Appendix 9) to the Regulation and s5.

1. The charges on the first complaint arose out of the supply to the patient W of Subutex on 10 occasions over a 12 day period between 31 August 2006 and 11 September 2006.  On 29 August 2006, W was discharged from an opiate treatment program conducted through the Alcohol, Tobacco and Other Drugs Service (ATODS) at Nambour.  A clinical nurse from the ATODS spoke to the appellant about W’s imminent discharge.  The appellant indicated she was prepared to “dose” W as a community pharmacy engaged in the opiate treatment program.  The nurse said an authority and introductory letter with photo identification would be produced and sent to the pharmacy by fax prior to dosing being commenced.  She said W would present with the original documents.

1. No written instructions arrived by fax and W did not present with originals. Nonetheless, the appellant administered the drug (8 times) and gave W weekend doses to take away (twice). She thereby breached subs51(4) and (3) of the Regulation, which provide:

“51(3)     A person must not dispense, issue, prescribe, purport to                     prescribe or sell a controlled drug unless the person is, under
              this regulation, endorsed to dispense, issue, prescribe or sell
              the drug.

Maximum penalty—80 penalty units.

51(4)      A person must not administer a controlled drug to someone
              else unless the person is, under this regulation, endorsed to
              administer the drug to the other person.

Maximum penalty—80 penalty units.”

1. Without the written authority, the appellant was not authorised to administer or supply the drug (s64(1)(f)).

1. The appellant did not enter details of the transactions (each administration and sale) in a controlled drugs record. She thereby breached s87(1), which provides:

“87(1) A pharmacist, or a person who is authorised to           dispense or supply a controlled drug under the personal supervision of a pharmacist, must personally enter in the controlled drugs record, the details of each transaction for a controlled drug that is performed by the pharmacist or person.

Maximum penalty—40 penalty units.”

1. Failure to observe subs87(1) involved failure to observe subs87(2), which prescribes the time when the record is to be entered:

“87(2) The pharmacist or person must make the entry—

(a) for a transaction for the administration or supply of a controlled drug on a written instruction under a drug therapy protocol—not later than 7 days after the end of the month in which the final administration or supply of the drug on the instruction is carried out; or

(b) otherwise—

(i)   on the day of the transaction; and

(ii) if there is more than 1 transaction on a day—in the   order in which the transactions happen.

Maximum penalty—40 penalty units.”

1. The appellant was charged with, and pleaded guilty to, breaching both subsections 87(1) and 87(2) for each transaction.  There was, therefore, a real risk of her being punished twice for the same omission – once for not entering the record and again for not doing so at the required time.

1. At the relevant time, a penalty unit was $75,[4] so the maximum penalty for each of the 10 unauthorised administrations or sales was $6,000.  The maximum for each of the 20 failures to record the transactions was $3,000. 

   [4]Penalties and Sentences Act 1992 s5

1. The prosecutor submitted to the acting magistrate – and it was not contested – the breached laws were designed to allow authorities to monitor, record and strictly control the movement of controlled drugs.

1. Section 84 of the Regulation, 45 breaches of which were charged in the second complaint, relevantly provides:

“84       Dealing with paper prescriptions and certain written

instructions

(1) This section applies to a dispenser who dispenses a  

controlled  drug on a paper prescription or administers or supplies a controlled drug on a written instruction.

(2)      …

(3)      The dispenser must send the chief executive the prescription
            or written instruction—

(a)   in paper form; or
         (b)   in an approved electronic form by electronic means.

(4)       If the dispenser sends the prescription or written instruction
             under subsection (3)(a), the dispenser must—

(a)         …

(b)        …

(c)         for a written instruction—send the instruction within   14 days after carrying out the final administration or   supply of the controlled drug on the instruction.

Maximum penalty—40 penalty units.”

1. The appellant was issued with 45 separate written instructions to provide opiate dependant patients with controlled drugs. An example of a written instruction was tendered during the hearing of the appeal. It shows the appellant was authorised to supply or administer, at the appellant’s pharmacy, a named patient 90mg of methadone 31 times from 1 August 2008 to 31 August 2008. The document includes notice, in accordance with s84, that the written instruction must be sent to the chief executive within 14 days of completion of the supply/administration.

1. The prosecutor told the acting magistrate the prosecution did not assert the written instructions were not properly held, but, again submitted the offences were serious because they involved breaches of a regulation designed to enable the chief executive to monitor the administration of controlled drugs throughout the State.

1. Each penalty unit then being $75, the appellant was liable to a fine of $3,000 for each of the 45 offences.

1. On 2 and 16 October 2008, authorised officers attended the appellant’s pharmacy.  She freely admitted she had not sent the August and September written instructions.  She made efforts, after the first intervention, to send the completed written instructions. It was accepted that, sometime after the intervention, the appellant sent the written instructions to the chief executive.

Submissions of the parties before the acting magistrate.

1. Among other things, the prosecutor submitted:

(a)the opioid treatment program aimed to decrease the risks associated with drug use for the individual and the community.  Treatment is commonly provided through community pharmacies, where patients attend and consume the drug on the premises.  Pharmacists who request to participate in the program must comply with strict protocols reflecting the obligations set out in the Regulation.

(b) the appellant was a professional person with specific and serious

 

obligations under the body of regulations under which she operates;

(c) even if she were tricked by an apparent oral instruction to administer the

 

drug to W (as the appellant’s Counsel submitted), the appellant had an

 

“overarching obligation … to obtain a written instruction within 24

 

hours”. 

1. The last submission was said to be founded in s97. That section places a duty on a dentist, doctor, nurse practitioner or physician’s assistant who gives an authorised person an oral instruction to administer or supply a controlled drug to put the instruction into writing within 24 hours after giving the instruction. The section places a duty on a pharmacist who received the oral instruction to report the failure to put the oral instruction into writing within 48 hours of becoming aware of the contravention.[5]

   [5] An oral instruction may be given in an emergency: s81

1. The appellant’s counsel told the acting magistrate that, unknown to the appellant, W was discharged from the program.  The appellant received a telephone call from a male person purporting to be a doctor telling her W would be attending and “We will send the paperwork in due course”.  Such, it was submitted, was common practice.  The appellant’s liability arose because she continued to dispense the controlled drug without pursuing the written instruction.  The appellant did, however, after dispensing for 10 days, contact the ATODS.  It was then discovered there had never been an oral instruction from a doctor.  The appellant then stopped dispensing the controlled drug to W.

1. Counsel told the acting magistrate the appellant had changed her practice, taking measures to ensure compliance with the Regulation.  So, it was submitted, the principle of personal deterrence was not relevant in sentencing the appellant.

1. The appellant’s failure to send written instructions arose, counsel told the acting magistrate, when she was moving pharmacies, such that “she was effectively operating two pharmacies, one of which was required to be the dispensing pharmacy, the other one of which was in fact a shop front where the people came.  She had to go to and fro.  She worked alone.  It was stressful and busy.”  The appellant fell behind in her record keeping.

The acting magistrate’s reasons.

1. The acting magistrate took into account all that had been said on the appellant’s behalf including, favourably to the appellant, that her actions “caused the investigation to be undertaken”.  His Honour properly considered the need to deter others from breaching the Regulation, given its purpose of ensuring the appropriate monitoring and regulation of controlled drugs.

1. In setting a single fine for the 30 offences on the first complaint, the acting magistrate recalled the prosecutor’s submission that a penalty of about 10% of the maximum should be imposed.  The fine of $9,000 reflected the appellant’s counsel submission that “this is a group of offences and ….. I should look at this in its total context.”

1. The prosecutor had submitted the total fine for the 45 offences on the second complaint should be $13,500 ($300 per charge).  The acting magistrate, fixing a single fine at $10,125, again alluded to the totality argument of the appellant’s counsel.

The arguments on appeal.

1. The appellant asserts two errors in the sentencing exercise. The first is that by fixing the fine for all of the charges on the first complaint, the appellant has necessarily been punished twice for the one omission, namely, failing to enter the details of the transactions in the controlled drugs record. I have already referred to this risk. It is reasonably clear the acting magistrate did intend the fine to comprehend all 30 offences, perhaps influenced by the prosecutor’s submission that the requirements in subs87(1) and (2) “are discrete obligations”.

1. Arguably, to punish the appellant for each failure offends CriminalCode s16, which relevantly provides:

   
   
   

(a)“A person cannot be twice punished whether under the provisions of the Code or under the provisions of any other law for the same act or omission …”.

1. Even if this discloses error in the exercise of sentencing discretion such as to enliven the discretion afresh in the appellate court,[6] I would not allow the appeal on this basis.  The appellant’s offending had two aspects.  She wrongly dispensed a controlled drug 10 times and she compounded those breaches by failing to record the transactions.  The requirement to keep a controlled drugs record is a distinct requirement under the Regulation (s86).  It does not depend on there having been a proper dispensing of a controlled drug pursuant to a written instruction. 

   [6]House v The King (1936) 55 CLR 499 at 505

1. Taking into account the legislative purposes for the strict regime set out in the Regulation - as referred to by the acting magistrate and uncontested by the appellant’s counsel at first instance and on appeal - I consider a single fine of $9,000 to entirely appropriate for the first complaint.  The appellant had no authority to dispense the controlled drug to W.  Quite separately, the appellant failed to record the transactions.  Such a fine takes into account the circumstances of the offending and of the appellant.  It also, one hopes, will deter others with authority under the Regulation from failing to take great care in its administration.

1. The appellant’s second argument is that the acting magistrate failed “to have full and proper regard to the appellant’s actions in notifying the authorities, thereby bringing the prosecution upon her.”[7]

   [7] Counsel on appeal referred to AB v The Queen (1999) 198 CLR 111

1. Defence counsel submitted to the acting magistrate that the appellant’s inquiry regarding W led to her being investigated and charged.  Several things may be said about that.  First, the appellant had a duty under the Regulation to make the inquiry and to do so much earlier[8].  Second, the respondents’ counsel, on appeal, did not concede the investigation was so triggered, and suggested in his outline that evidence should be led on the point.  Third, the acting magistrate expressly took the point on board in the appellant’s favour, as I have set out above.  Fourth, it is far from clear the appellant intended, by her inquiry, to disclose and confess to unlawful conduct.  I am not persuaded this argument is made out.

   [8] see discussion above regarding s97

1. The Regulation sets out a detailed and strict regime for the manufacture, prescription and dispensing of, among other things, controlled drugs.  The great care that is required by all who play a role in the supply of controlled drugs to persons who need them and the detailed recording of the movement of the drugs support the submissions made by the prosecutor to the acting magistrate.[9]  Severe penalties are set for breaches of the Regulation.  In setting the penalty in a particular case, a court will have strong regard to the principle of general deterrence.

   [9] See [25] above

1. The fine imposed on the first complaint should stand.

1. I have reached a different view about the fine imposed on the second complaint.  The crucial difference in the offending is that in the one case the appellant dispensed a controlled drug without authority; in the second, having lawfully dispensed a controlled drug, she failed to send the written instruction to the chief executive.  The state of the appellant’s pharmacy business at the relevant time carries more significance when assessing the gravity of the offences on the second complaint.

1. The appellant, perhaps because of the relatively disorganised state of her business, neglected her duties under the Regulation.  It was appropriate that the acting magistrate impose substantial penalties.  I am persuaded, however, that the penalty imposed on the second complaint was manifestly excessive taking into account the appellant’s good professional record until the time of these offences; the circumstances prevailing at the time of the breaches, namely the temporary period of disorganisation involved in moving between pharmacies; the appellant’s efforts, albeit after detection, to honour her obligations to send the 45 written instructions to the chief executive; and the appellant’s demonstrated rehabilitation in amending her practices to ensure compliance with the Regulation in future. 

1. Taken with the fine of $9,000 for the first complaint, the fine of $10,125 for the second complaint made the whole disposition manifestly excessive.  The principle of the deterrence of others would be sufficiently honoured by a fine on the second complaint of $6,000.  Although the second complaint alleged 45 breaches, the nature of the breach (a systemic omission) does not call for the same level of punishment as the breaches alleged in the first complaint.

1. I make the following orders:

1.              Allow the appeal;

2.Vary the orders of the acting magistrate of 15 February 2008 only by substituting a fine of $6,000 for the fine ordered of $10,125.

1. I will hear the parties as to costs.