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 appellant is resentenced to a term of imprisonment of two years and six months. The appellant is to be released after serving eight months in custody, upon agreeing to enter into a recognisance to be of good behaviour for two years.
Customs Act 1901 (Cth) s 233BAA(4), s 233(1)(d), s 233(1AA); Criminal Code Act 1995 (Cth) s 11.1(1); Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 33BB; Customs Regulation 2015 (Cth) Schedule 7; Crimes Act 1914 (Cth) s 16A, referred to.
R v Choi; R v Pereira [2017] SASCFC 54, applied.

R v RUSSELL
[2017] SASCFC 126
Court of Criminal Appeal: Kelly, Nicholson and Doyle JJ
KELLY J.
Introduction

The appellant, Peter James Russell, 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 1995 (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). The nature of the goods the subject of these offences were anabolic and androgenic substances, human chorionic gonadotrophin and human growth hormone.
The maximum penalty prescribed for the importation offences is imprisonment for five years and/or a fine of $170,000 or $180,000, and for the possession offence a fine of $180,000.
On 14 February 2017 the appellant was sentenced to three years imprisonment with a recognisance order that the appellant be released after serving two years. In relation to the possession charge, the appellant was convicted without further penalty.
The appellant now seeks permission to appeal on five grounds: first, that the Judge failed to adequately discount the notional starting point for the penalty on account of the appellant’s early guilty plea; second, that he failed to consider suspension of the term of imprisonment imposed; third, that he failed to consider the imposition of a home detention sentence pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA); and fourth and fifth, that he failed to adequately take into account the appellant’s likelihood of reoffending and psychological history. At the hearing of the appeal during argument, the appellant was granted permission to add a sixth ground of appeal; that the sentence imposed was manifestly excessive in all of the circumstances.
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).
There was also evidence that there is increasing recognition of psychiatric problems and increased aggression under the influence of high doses of steroids and HGH. Those psychiatric symptoms include agitation, mania, psychosis, depression and anxiety. There is also evidence of increased aggression, sometimes known as “roid rage”.
The sentencing proceedings in the District Court
The sentencing submissions proceeded on the basis of the prosecution facts tendered for that purpose. At the hearing counsel for the appellant tendered a psychological report and associated documentation setting out the appellant’s personal background, employment and psychological and medical history.
In the court below counsel for the appellant appears to have accepted that an offender to be sentenced for Commonwealth offences does not fall to be sentenced according to the provisions of s 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA).
There were a number of mitigating circumstances ventilated before the Court during sentencing submissions. These matters included but were not confined to the matters referred to in the psychologist’s report. The appellant has no history of prior drug offending and he was not a principal in the offending. At the time of his arrest he was in the midst of a breakdown of a relationship. At the time of sentencing submissions he had a daughter aged 18 months with whom he had regular contact and supported financially.
The appellant has a history of anxiety, depression and chronic low self-esteem for which in the past he has been treated with antidepressants. The source of some of his psychological issues appears to have been sexual abuse which he was subjected to at the age of 11, and it may have ultimately been one of the reasons he became involved in using steroids and spending inordinate amounts of time at gymnasiums. The psychologist opined that the obsessional behaviour exhibited by the appellant to do with attendance at the gym and taking of steroids is consistent with the behaviour patterns amongst men who have been sexually abused.
During sentencing submissions the learned sentencing Judge was provided with a schedule which showed comparative sentences imposed throughout the Commonwealth for similar offences contrary to s 233BAA of the Customs Act 1901 (Cth).
The Judge’s reference in the sentencing remarks to a tariff in the range of 12 to 16 months appears to have come from a submission made by counsel for the appellant during sentencing submissions. That submission in turn appears to be a conclusion reached by counsel for the appellant after perusing the comparative sentencing schedule tendered at the hearing. It is doubtful whether any such conclusion ought to be drawn from a schedule like that tendered during sentencing submissions, particularly in light of the fact that all of the cases appearing on that schedule were sentences after pleas of guilty in various courts around Australia. However, nothing turns on this point and it is not necessary in the circumstances to say anything further about it.
In the sentencing remarks, after summarising the personal circumstances of the appellant, the Judge when imposing sentence stated:
I take into account his lack of prior previous convictions and the fact that he was not a principal in relation to this offending.
I accept that he is contrite and unlikely to reoffend.
I propose to fix one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act. Taking into account your contrition I order that you be imprisoned for three years reduced from three years six months. I fix a non-parole period of two years.
In relation to count 51 you'll be convicted without penalty.
I have considered all other sentencing options. I am of the view that due to the number of offences the period of time over which they occurred, the degree of involvement in the offending and the maximum penalty provided that due to those matters there is no alternative but to impose a sentence of imprisonment. That is the sentence of the court.
Discussion
During argument on the appeal counsel for the appellant focused her submissions in support of the first ground of appeal as to the inadequacy of the discount for the plea of guilty upon the failure of the sentencing Judge to identify explicitly what discount was applied in respect of the guilty plea. Counsel submitted that in referring only to the issue of contrition the sentencing Judge fell into error and consequently gave an inadequate discount for the plea of guilty.
Initially counsel for the appellant sought to gain support for that argument by reference to the provisions of the South Australian Criminal Law (Sentencing) Act 1988.Had the appellant’s offending been contrary to State law, the guilty plea would have attracted a discount of up to 30 per cent. However, eventually Mrs Shaw QC conceded that this Court is bound by the decision of this Court in R v Choi; R v Pereira.[1] As the Court in Choi pointed out, the scale of discounts for guilty pleas under s 10B of the Criminal Law (Sentencing) Act 1988 (SA) does not apply to sentences for Commonwealth offences. Instead for Commonwealth offences, the Court has a general discretion and there is no rigid formula which applies in relation to sentencing.
[1] [2017] SASCFC 54.
The issue then for this Court to consider is whether in all of the circumstances the Judge did in fact give any or any adequate discount for the plea of guilty.
Given the brevity of the Judge’s remarks when explaining to the appellant the sentence he was imposing and why, this has not been an easy matter to discern. An additional complication arises out of the fact that the Judge used the language of contrition when announcing the reduction. Pursuant to s 16A of the Crimes Act 1914 (Cth) contrition is a separate and distinct matter to be taken into account in addition to a plea of guilty.
However, I do not find it necessary to reach any final conclusion about this ground of appeal as I have concluded that the sentencing discretion has miscarried for other reasons.
The personal circumstances of the appellant were such that in combination they raised for consideration whether the discretion to order immediate or early release on recognisance, or alternatively to permit the appellant to serve the sentence on home detention, was appropriate. Submissions to that effect were made to the sentencing Judge.
It appears from the sentencing remarks that his Honour dealt with those submissions in a compendious way when announcing why it was that he considered there was no alternative but “to impose a sentence of imprisonment”. Although it is not entirely clear, by those remarks I understand his Honour to have been referring to the imposition of an immediate custodial sentence as opposed to a suspended sentence or a sentence to be served on home detention.
In reaching that conclusion, the Judge appears to have proceeded on the basis that he was bound to impose a term of imprisonment by virtue of the number of offences and the period of time over which they were committed. It is true that the appellant’s offending was in a more serious category by virtue of those features, however it is a quite striking feature of the comparative sentencing schedule tendered during submissions that many cases similar to that of the appellant led to sentences where immediate recognisance release orders were made. It also appears from that schedule that in sentencing, courts have tended to make some distinction between penalties which are imposed for importation of illicit drugs and precursors such as ephedrine and pseudoephedrine compared to importations which involve anabolic and androgenic substances. It is cases in that latter category which appear to more frequently attract orders for immediate release.
Here there were a number of factors in the circumstances of the appellant which raised for real consideration whether an immediate or early release on recognisance, or an order that the sentence be served on home detention, might be appropriate.
The Judge accepted that the appellant had no prior drug related convictions, was contrite and that it was unlikely that he would offend again. The psychological report detailed the appellant’s prior history of sexual abuse and the psychological difficulties he had suffered as a consequence, which included at one stage in his twenties being placed on a mental health care plan during a depressive episode.
In all of the circumstances it is not clear from the Judge’s remarks why there was necessarily no other alternative but to impose a term of immediate imprisonment. Indeed, it is my view that the Judge’s failure to reflect the factors that I have mentioned in either an immediate or early release on recognisance, or an order that the sentence be served on home detention, has resulted in a sentence that is manifestly excessive.
In view of my conclusion that there has been an error in the exercise of the sentencing discretion, I do not find it necessary to determine the remaining grounds of appeal because in these circumstances it is the duty of this Court to exercise the sentencing discretion afresh.
In doing so I make it clear that I have had regard to each and every one of the matters set out in s 16A(1) and s 16A(2) of the Crimes Act 1914 (Cth) insofar as they are relevant to the appellant.
In deference to the argument put by the Commonwealth Director of Public Prosecutions upon appeal, I make it clear that in my view, in exercising the discretion to discount the sentence of imprisonment by virtue of the guilty plea, this Court is not bound by the Criminal Law (Sentencing) Act 1988 (SA). The discount to be applied is discretionary and there is no rigid formula which applies.
Taking into account all of the circumstances which I have referred to previously, I consider that the appellant is an excellent candidate for rehabilitation.
I would start with a notional head sentence of three years imprisonment for counts 1 to 50. After allowing a discount for the pleas of guilty I would impose one sentence for those counts of two years and six months imprisonment. For count 51, I would, like the Judge, convict the appellant without further penalty. I would order that the appellant be released after serving eight months in custody, upon agreeing to enter into a recognisance to be of good behaviour for two years. I would backdate the sentence to commence on 14 February 2017 which was the date the appellant was taken into custody.
NICHOLSON J. I agree with the orders proposed by Kelly J and with her Honour’s reasons.
DOYLE J. I also agree with the orders proposed by Kelly J and with her Honour’s reasons.