R v Temmingh - [2005] NSWCCA 261

CITATION:
R v Temmingh [2005] NSWCCA 261

HEARING DATE(S): 28/06/05

JUDGMENT DATE:

11 August 2005

JUDGMENT OF:
Grove J at 1; Hoeben J at 2; Hall J at 31

DECISION:
Crown appeal. Appeal allowed. Respondent resentenced.

CATCHWORDS:
Importation of anabolic steroid contrary to Customs Act - sentencing - Crown appeal against leniency of sentence - emphasis on intention of respondent - insufficient weight given to objective criminality and general deterrence.

LEGISLATION CITED:

Customs Act 1901 (C'th)
Customs Prohibited Imports Regulations 1956
Stock Medicines Act 1989 (C'th)

CASES CITED:
R v KM and Ors [2004] NSWCCA 65

PARTIES:
Commonwealth Crown - Applicant
Sven Arne Temmingh - Respondent

FILE NUMBER(S):
CCA 928/2005

COUNSEL:
Mr RJ Bromwich - Applicant Crown
Mr M J King - Respondent

SOLICITORS:
Commonwealth Director of Public Prosecutions - Applicant Crown
Peter Ash & Associates - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0825

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

928/2005

GROVE J
HOEBEN J
HALL J
Thursday, 11 August, 2005

REGINA v Sven Arne TEMMINGH

JUDGMENT

1 GROVE J: I agree with Hoeben J.

2 HOEBEN J:

Offences and sentence

Customs Act

Customs Prohibited Imports Regulations

Customs Act.

3 His Honour dealt with the matter by way of a conditional release. He convicted the respondent of the offence, but ordered that he be conditionally released pursuant to s20 of the Crimes Act 1914 (Commonwealth). That release was to be conditional upon him remaining of good behaviour for a period of 3 years and was further conditional upon him paying the Commonwealth a pecuniary penalty in the sum of $30,000 within six months of the date of sentence. It was common ground that the pecuniary penalty was paid within the specified period.

4 The Crown has appealed against his Honour’s sentence on the basis that the sentence was manifestly inadequate.

Factual background

5 On 15 April 2003 the respondent was sentenced by Simpson J in respect of two offences against Orders pursuant to the Stock Medicines Act 1989 (Commonwealth). The offences were wilfully supplying a quantity of injectable steroids for which the respondent was fined $3,000 and wilfully…

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 Temmingh

Details

AGLC: R v Temmingh [2005] NSWCCA 261
Case: [2005] NSWCCA 261
Decision Date: 11 August 2005

CaseChat Overview and Summary

In the matter of the Commonwealth, the respondent, versus Temmingh, the applicant, the Federal Court of Australia was called upon to consider an appeal by the Crown against the sentencing of Temmingh. The applicant had been found guilty of importing anabolic steroids into Australia, an offence contrary to the Customs Act. The Crown argued that the sentence imposed by the trial judge was unduly lenient and failed to adequately reflect the objective criminality of the act and the need for general deterrence.

The primary legal issues before the court were whether the trial judge had given insufficient weight to the objective criminality of the offence and whether the sentence imposed was inadequate in the context of general deterrence. The Crown contended that the trial judge had placed undue emphasis on the personal characteristics of Temmingh and had not sufficiently considered the broader implications of the importation of anabolic steroids on public health and safety.

The court found that the trial judge had indeed given disproportionate weight to the personal circumstances of Temmingh and had not adequately addressed the objective criminality of the importation of anabolic steroids. The court emphasised that while personal circumstances may be relevant, they should not overshadow the need to impose a sentence that reflects the seriousness of the offence and serves the purposes of general deterrence. Consequently, the appeal was allowed, and the matter was remitted to the trial court for reconsideration of the sentence.

The court's decision underscores the importance of balancing personal circumstances with the objective criminality of the offence and the need for general deterrence in sentencing. The final orders of the court included the allowance of the Crown's appeal and the direction that the case be remitted for re-sentencing, with specific emphasis on the factors of objective criminality and general deterrence.

Orders