R v Russell - [2017] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RUSSELL
[2017] SASCFC 126
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Doyle)
21 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO POSTAL SERVICES, TELECOMMUNICATIONS AND COMPUTERS - SENTENCE - OTHER MATTERS
Appeal against sentence. The appellant was convicted on his pleas of guilty to 49 counts of importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth), one count of attempting to import tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code Act 1905 (Cth), and one count of possessing goods unlawfully imported contrary to s 233(1)(d) and s 233(1AA) of the Customs Act 1901 (Cth).
After becoming acquainted with a doctor in Pakistan via the internet, the appellant imported or attempted to import 50 separate consignments from the United Kingdom between 3 March 2015 and 15 October 2015. The goods subject of the offences were anabolic and androgenic substances, human chorionic gonadotrophin and human growth hormone. The appellant acted as a middle man for a distribution network in exchange for free or subsidised steroids for his own personal use.
The appellant was sentenced to three years imprisonment with a recognisance order that he be released after serving two years. The appellant seeks permission to appeal on five grounds: (1) that the Judge failed to adequately discount the notional starting point for the penalty on account of the appellant’s early guilty plea; (2) that he failed to consider suspending the term of imprisonment; (3) that he failed to consider ordering a home detention sentence pursuant to s 33BB of the Criminal Law Sentencing Act 1988 (SA); and (4) and (5) that he failed to adequately take into account the appellant’s likelihood of reoffending and psychological history. Permission to add a sixth ground of appeal was granted at the hearing of the appeal; that the sentence imposed was manifestly excessive in all of the circumstances.
Held per Kelly J (Nicholson J and Doyle J agreeing): allowing the appeal: The sentencing Judge erred in failing to properly consider two matters: whether it was necessary to impose an immediate custodial sentence and whether it was appropriate to order that any sentence be served on home detention pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
The sentence of the District Court Judge is set aside and the…

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.

Continue reading R v Russell

Details

AGLC: R v Russell [2017] SASCFC 126
Case: [2017] SASCFC 126
Decision Date: 21 September 2017

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R, against a sentence imposed by a single judge. The dispute arose from the appellant's importation and attempted importation of various prohibited substances, including anabolic and androgenic substances, human chorionic gonadotrophin, and human growth hormone, between March and October 2015. These substances were sent from the United Kingdom to various post office boxes and parcel lockers in Adelaide, addressed to different names. The appellant was also found in possession of a significant quantity of these prohibited substances. The appeal was heard by Kelly, Nicholson, and Doyle JJ.

The legal issues before the Court were primarily concerned with the grounds for interference with a sentencing decision and the interpretation of sentencing provisions, particularly in relation to drug import-export offences and offences involving postal and telecommunications services. The Court was required to determine whether the sentencing judge had failed to exercise their discretion appropriately, thereby providing grounds for the appellate court to intervene.

The Court's reasoning focused on the appellant's admitted role as a "middle man" in a distribution network, facilitating the importation of prohibited substances in exchange for personal use of steroids and financial reimbursement for expenses. The appellant's explanation involved an acquaintance in Pakistan who supplied the substances, with the appellant arranging for their onward delivery to addresses provided by his contact. The Court considered the nature and adverse effects of the imported substances, including anabolic steroids and human growth hormone, and the appellant's awareness of these risks. The Court's analysis of the sentencing provisions and the principles governing appeals against sentence would have informed its decision on whether the original sentence was demonstrably unjust or outside the appropriate range.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge referred the question of permission on the first five grounds to this Court for hearing and determination. Background The circumstances surrounding the offending were tendered at the sentencing hearing in a detailed prosecution statement of facts. Those facts do not appear to have been in dispute and were the basis on which sentence was imposed. Between 3 March 2015 and 15 October 2015 the appellant imported, or attempted to import, 50 separate consignments from the United Kingdom containing various quantities of anabolic and androgenic substances (steroids), human chorionic gonadotrophin and human growth hormone, all of which are listed as tier 1 goods under the Customs Regulation 2015 (Cth). All of the consignments were sent to various post office boxes or parcel lockers in and around Adelaide addressed to a variety of different names. Evidence of these aliases was found during a search of the appellant’s home address. Numerous mobile telephones linked to those false names were also located at the appellant’s home address. The total net weight of steroids imported or attempted to be imported by the appellant was approximately 2.11 kilograms. The market value of the steroids imported was estimated to be about $86,135. In addition, the appellant was found in possession of approximately 146 vials and 116 bottles or packages of the same prohibited substances. The appellant admitted that he became acquainted with a doctor in Pakistan and due to his own interest in the use of steroids was enticed to act as middle man for a distribution network in exchange for free or subsidised steroids for his own personal use. The acquaintance in Pakistan sent the appellant steroids to be on sent to addresses given to him by his Pakistani contact and the arrangement was that the appellant would be able to retain some for his own use. He would receive $50 for each parcel that he on sent and would be reimbursed for the cost of telephones and packaging which he purchased for distribution purposes. There was evidence before the Court that anabolic androgenic steroids are the generic term referring to the synthetic variants of the male sex hormone testosterone. Testosterone can also be considered an anabolic steroid. It has the same effects as other anabolic steroids, some of which produce their effects by conversion to testosterone in the body. The main effect of relevance is increased muscle growth usually accompanied by a decrease in body fat. Human growth hormone (HGH) is naturally produced within the pituitary gland of the human body but can also be manufactured synthetically in laboratories and injected. The main effect of relevance is fat loss and muscle gain as well as faster healing and increased energy levels. The adverse effects of use of steroids and HGH include virilisation such as deepening of the voice and excessive hair growth, reduced testicular size, severe acne and heart and liver damage. To avoid the undesirable side effect of testicular atrophy a practice amongst users is to also administer human chorionic gonadotrophin (HCG).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J NICHOLSON J DOYLE J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J, DOYLE J

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