Scott v The King
[2023] WASCA 14
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SCOTT -v- THE KING [2023] WASCA 14
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 5 AUGUST 2022
DELIVERED : 31 JANUARY 2023
FILE NO/S: CACR 162 of 2021
BETWEEN: DARRIN JOHN SCOTT
Appellant
AND
THE KING
Respondent
FILE NO/S: CACR 5 of 2022
BETWEEN: DARRIN JOHN SCOTT
Appellant
AND
THE KING
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 429 of 2020
Catchwords:
Criminal law - Sentencing - Application for leave to appeal against sentence - Application for leave to appeal against order fixing non‑parole period - Appellant convicted of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth) - Whether sentence of 1 year 4 months' imprisonment on count 1 was manifestly excessive - Whether total effective sentence of 4 years' imprisonment infringed first limb of totality principle - Whether a non‑parole period of 2 years 8 months was manifestly excessive
Legislation:
Proceeds of Crime Act 2002 (Cth)
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Result:
CACR 162 of 2021
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed
CACR 5 of 2022
Leave to appeal on single ground of appeal granted
Appeal dismissed
Category: D
Representation:
CACR 162 of 2021
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | E P Fitzpatrick |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (Cth) |
CACR 5 of 2022
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | E P Fitzpatrick |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Duffy v Richardson [2004] ACTSC 47
Garcia v The Queen [2013] NSWCCA 241
He v The Queen [2016] NSWCCA 220
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nguyen v The Queen [2016] NSWCCA 5
Oliveria v The Queen [2020] WASCA 32
R v Ng [2012] WASCA 180
R v Russell [2017] SASCFC 126
R v Temmingh [2005] NSWCCA 261
Soerensen v The Queen [2020] WASCA 114
Stipkovich v The Queen [2018] WASCA 63
Tang v The Queen [2020] WASCA 194
JUDGMENT OF THE COURT:
Overview
On 24 June 2021, the appellant, Darrin Scott, was convicted on his pleas of guilty of seven counts of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth). Mr Scott imported various steroids (referred to as 'anabolic or androgenic substances') of different weights and purities. On 21 October 2021, Mr Scott was sentenced to a total effective sentence of 4 years' immediate imprisonment backdated to 19 October 2021. The sentencing judge also ordered that Mr Scott be eligible for parole after serving 2 years and 8 months of that term of imprisonment.
The maximum penalty with respect to each count was 5 years' imprisonment or a fine of 1,000 penalty units (ie $210,000) or both.
Mr Scott has applied for leave to appeal against both the sentence (in appeal CACR/162/2021) and the order as to eligibility for parole (in appeal CACR/5/2022). In each appeal the application for leave to appeal has been referred to the hearing of the appeal.[1] So too has an application for an extension of time in relation to the appeal as to the non-parole period.[2]
[1] Order of Buss P made 3 February 2022 (in CACR/162/2021) WAB 4; Order of Buss P made 3 February 2022 (in CACR/5/2022) WAB 46.
[2] Order of Buss P made 3 February 2022 (in CACR/5/2022) WAB 47.
As to the appeal in relation to sentence, there are two grounds of appeal. Mr Scott contends that:
1.The sentence imposed with respect to count 1 was manifestly excessive.
2.The total effective sentence infringed the first limb of the totality principle.
There is a single ground of appeal in relation to the appeal concerning the non-parole period. Mr Scott contends that the sentencing judge imposed a non-parole period that was manifestly excessive.
For the reasons that follow the appeals must be dismissed.
Circumstances of the offending and the individual sentences
The various counts and the sentences imposed by the sentencing judge are summarised in the table at annexure A to these reasons.
In summary, Mr Scott's offending relates to 11 importations of tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901. The tier 1 goods were various steroids - anabolic or androgenic substances - of different weights and purities. The importation of such substances was prohibited without prior written permission by the Secretary to the Department administered by the Minister administering the Therapeutic Goods Act 1989 (Cth) or an authorised officer.[3] The importations occurred between 25 August 2017 and 26 July 2019. The tier 1 goods as imported totalled 5,772.7 grams in weight. This included 5,443.9 grams of testosterone with the balance being lesser quantities of dromostanolone, trenbolone and methandienone.
[3] Customs (Prohibited Imports) Regulations1956 (Cth) reg 5H sch 8 item 3C (as to counts 1 - 5), reg 5G sch 7A item 1A (as to counts 6 - 7).
The sentencing judge accepted that Mr Scott imported enough testosterone for one person for 105 years - or enough for about 150 to 200 males for a year. His Honour was unable to quantify the financial benefit that Mr Scott may have received from the enterprise. If, however, the testosterone was sold in 10 ml vials with a concentration of 4,000 milligrams, Mr Scott would have received between at least $136,097.50 and $313,024.25 (ts 66).
Broadly speaking, the offending can be broken down into three discrete periods of offending over a two-year time span. Counts 1 - 5 concern interceptions between 25 August 2017 and 14 November 2017. Mr Scott was charged in relation to that offending in 2018 and was granted bail. Count 6 concerns an interception on 28 December 2018 - while Mr Scott was on bail for counts 1 - 5. Finally, count 7 concerns five packages that were intercepted between 11 and 26 July 2019 - while Mr Scott was on bail for counts 1 - 5 and count 6.
Between 15 July 2016 and 27 June 2017, before the offending the subject of counts 1 - 7, the Australian Border Force (ABF) intercepted 11 packages of steroids relating to Mr Scott. Those 11 packages were not the subject of any charge. However, as a result of the importations the ABF attended on Mr Scott and he was issued with a seizure notice. By that notice Mr Scott was warned about the illegality of his importation activities. Accordingly, Mr Scott was, at all times, on notice that his importation activities were illegal.
Counts 1 - 5 concern five further packages sent from China or Hong Kong which were intercepted at various gateway facilities around Australia. The addressees of the packages were:
1.OH[4] - Mr Scott's de facto partner - at a Queensland post office (PO) box.
2.OH at a Western Australian PO box.
3.'M Blight' at a Western Australian PO box.
4.'M Blight' at a Western Australian PO box.
5.'M Blight' at a Western Australian PO box.
[4] A pseudonym.
The packages were falsely labelled insofar as they described their contents.
On 2 November 2017, ABF officers executed search and seizure warrants at Mr Scott's residence. Steroids were located at the premises, as were items consistent with steroid use, manufacture and distribution. The ABF also located $13,600 in cash (which Mr Scott confirmed to be savings and the proceeds of the sale of steroids). Mr Scott made admissions as to importing steroids via online purchases. Mr Scott said that he used PO boxes in Western Australia and Queensland which were automatically forwarded to another PO box in Western Australia. Mr Scott had opened the PO box in Queensland as he had been informed by an overseas supplier that more parcels were successfully delivered in Queensland. Mr Scott said that he had placed orders in different false names, including his girlfriend's name, as he thought that his name might have a 'red flag' as a number of his parcels had been intercepted in the past.
Mr Scott admitted to selling steroids on his own account. Initially he was a middleman between a Sydney distributor and his buyers. Subsequently, for about a year and a half, Mr Scott had been selling steroids for himself as principal. Analysis of various electronic devices revealed a list of approximately 350 past orders to buyers around Australia between November 2016 and October 2017. Mr Scott said, however, that he did not want to sell the steroids - he wanted to keep them for his personal use. Accordingly, Mr Scott had sold various cooking oils falsely as steroids.
Mr Scott was charged with the offences the subject of counts 1 - 5 and granted bail.
The offending the subject of count 6 concerned a 28 December 2018 interception - that being, relevantly, a time when Mr Scott was on bail in relation to the charges the subject of counts 1 - 5. This package was addressed to 'Damien S' at a Western Australian PO box. It too was falsely labelled as to its contents. Inquiries revealed that the PO box was registered to Mr Scott. On 17 January 2019, ABF officers executed a further search and seizure warrant at Mr Scott's residence. Steroids were located at the property in liquid form together with further items consistent with steroid use, manufacture and distribution. Two mobile phones contained SMSs, images and emails consistent with the distribution of steroids. Mr Scott was again charged and bailed.
Count 7 concerns five packages intercepted between 11 and 26 July 2019. Three of the five packages were addressed to 'BC'.[5] Two were addressed to 'BU'.[6] All were falsely labelled as to their contents. BC was questioned by ABF officers following the execution of search and seizure warrants at his residence. That questioning, and further inquiries, revealed that BC was recruited by Mr Scott to receive the steroids. BC provided Mr Scott with his address as a place for delivery of the packages. BC also provided Mr Scott with BU's name (BU being BC's partner) and the address of BU's former workplace as an address to send the packages. BC was to be paid $500 per parcel.
[5] A pseudonym.
[6] A pseudonym.
On 26 July 2019, ABF officers executed search and seizure warrants at Mr Scott's residence and premises that Mr Scott was in the process of moving to. Steroid related paraphernalia was located. Mr Scott denied ordering any recent packages from China or Hong Kong and denied paying anyone to receive packages on his behalf. However, communications between BC and Mr Scott were found on Mr Scott's mobile phone.
At no time did Mr Scott have approval to import the relevant anabolic or androgenic substances into Australia.
Personal circumstances
Mr Scott was born in April 1983. He was 34 to 36 years of age at the time of the offending and 38 years of age at the time of sentencing.
Mr Scott completed schooling to year 12. He had a happy and positive childhood although his parents separated when he was nine years old. Thereafter Mr Scott had no contact with his father. Mr Scott's mother remained supportive of him. After leaving school, Mr Scott joined the army. He completed two overseas deployments during four and a half years of service. Mr Scott's time in the army involved some traumatic experiences. Upon leaving the army Mr Scott undertook a Sports and Exercise Science degree. Mr Scott was employed on a casual basis as a physiologist at a hospital. Later Mr Scott relocated to Western Australia and worked in the security industry. Mr Scott was employed on a fulltime basis until resigning shortly before his sentencing in anticipation of the imposition of a custodial sentence.
The sentencing judge referred to Mr Scott as having had three significant relationships. He had two children from the first relationship who were 12 and 13 years of age at the time of sentencing. Those children spent school holidays with Mr Scott. Mr Scott had a seven-year-old child from his second relationship who also spent holiday time with Mr Scott. At the time of sentencing Mr Scott had been in a six-year relationship. Mr Scott and his then current partner had a five-month-old child and were expecting a new baby. Mr Scott's current and former partners remained supportive of him.
In being interviewed for a pre-sentence report, Mr Scott stated that he had stable mental health. However, the materials before the sentencing judge included a psychological report from a clinical psychologist. The psychologist opined that Mr Scott showed a number of symptoms consistent with post-traumatic stress disorder (PTSD) relating to his army deployment. The sentencing judge sentenced Mr Scott on the basis that a diagnosis of PTSD had been made. The psychologist also referred to Mr Scott developing a body dysmorphic disorder as a result of his time in the army. That disorder was associated with poor body image and a significant bullying and bastardising culture. The sentencing judge accepted that Mr Scott suffered body dysmorphia at the time of his offending.
The psychologist opined, and the sentencing judge seemingly accepted, that the combination of the PTSD and the body dysmorphia, in part, contributed to Mr Scott's offending (ts 63). However, the sentencing judge also concluded that Mr Scott's offending was not only motivated by his personal use of steroids. There was, the sentencing judge found, motivation in the form of financial reward (ts 63).
Mr Scott reported using the steroids he imported in much higher than the recommended quantities. Mr Scott used the steroids for bodybuilding. He reported taking up to 10 times the required levels of testosterone. The psychologist suspected that Mr Scott may have some minor cognitive impairment from his steroid abuse which was likely to manifest in memory deficits.
Mr Scott's use of steroids is such that it has affected his natural production of testosterone. Mr Scott has been rendered infertile. Mr Scott will have to be on a testosterone substitute for the remainder of his life as Mr Scott's body can no longer produce its own testosterone.
Sentencing disposition
Defence counsel conceded at the sentencing hearing that a term of immediate imprisonment was the only appropriate sentencing disposition. However, it was submitted on behalf of Mr Scott that an appropriate term would be one that did not exceed 3 years. This would enliven the court's power to make a recognisance release order.
In the course of referring to the material facts (ts 57 - 60), the sentencing judge observed that Mr Scott's enterprise had a 'commercial nature' (ts 59). His Honour also characterised the prosecution as having 'a strong case' against Mr Scott (ts 60, 68). The sentencing judge said that there was a 'serious business' of importation that was highly organised and premeditated (ts 69).
In terms of aggravating circumstances, the sentencing judge referred to:
1.There being 11 consignments (ts 63) over two years with three distinct periods (ts 64).
2.Mr Scott being the relevant 'principal' - importing, converting the powder into injectable form, packaging and distributing products and keeping the cash proceeds (ts 65).
3.Mr Scott proceeding to offend notwithstanding being warned by the ABF and being put on notice by the ABF regarding the illegality of the imports - and then proceeding to re-offend in respect of the offences the subject of counts 6 and 7 notwithstanding being on bail for the offences the subject of counts 1 - 5 (as to count 6) and then being again on bail for counts 1 - 6 (as to count 7) (ts 63).
4.Mr Scott's offending being motivated by financial reward - acting for commercial gain - as well as personal use (ts 63, 69).
5.The circumstance that Mr Scott went to significant lengths to avoid detection - including using multiple addresses and PO boxes registered in different names (ts 65).
6.In relation to count 7, Mr Scott recruiting BC to assist him and paying BC for that assistance (ts 65).
The offending was characterised as a premeditated, deliberate and sustained course of action to provide Mr Scott with steroids and financial gain. The sentencing judge said that Mr Scott was 'well organised' and that there was an 'ongoing course of deliberate conduct'. Mr Scott went to significant lengths to avoid detection, demonstrating that he was well aware of the illegality of his conduct (ts 65 - 66).
The sentencing judge identified the following mitigating circumstances:
1.Mr Scott had pleaded guilty to all counts, saving the Commonwealth the resources of preparing for and conducting a trial. The sentencing judge said that a 'sizable discount' was appropriate for the pleas although the discount operated at different levels for the various counts given the timing at which the pleas were offered (ts 67). The sentencing judge did not identify the discount allowed in numerical terms.
2.Mr Scott had accepted responsibility for his offending (although there was a degree of 'minimisation') and there was remorse in the pleas of guilty (ts 62, 68).
3.Mr Scott had cooperated with law enforcement officers by making candid disclosures (ts 68).
4.Mr Scott had stopped using steroids and was motivated and intended to change his behaviour (ts 62, 68).
5.There was a reduced likelihood - perhaps 'to zero' - of Mr Scott re-offending in this way in the future (ts 62). Later the sentencing judge put this at a 'likely low-risk chance of re‑offending' (ts 63) or Mr Scott being 'not likely to re-offend' given the personal consequences already suffered by Mr Scott from his improper use of steroids (ts 68).
6.Mr Scott had no prior criminal record (ts 62).
7.The effect on Mr Scott's family - although this did not amount to 'exceptional hardship' (ts 68 - 69).
8.Mr Scott had consented to forfeiture orders as sought by the respondent (ts 69).
The sentencing judge said that Mr Scott's PTSD and body dysmorphia were of 'minimal relevance' despite providing some explanation for Mr Scott's offending. This was because there was a requirement that the sentencing judge impose a sentence that reflected the necessity for general deterrence. However, his Honour acknowledged that these psychological conditions were of some relevance in terms of Mr Scott's personal circumstances (ts 68).
After referring to relevant sentencing principles, in orthodox terms, and the potential adverse health consequences of the use of steroids without the care and control of properly qualified medical personnel, the sentencing judge addressed an argument that Mr Scott would not have imported as much of the tier 1 goods had the ABF not intercepted the importations. The sentencing judge rejected that contention. The sentencing judge was not satisfied that Mr Scott only kept ordering because earlier orders were not received (ts 64 - 65).
The sentencing judge stated that general deterrence was of 'paramount importance' and that specific deterrence was also required given Mr Scott's continued offending despite the ABF warning and being on bail (ts 68).
The sentencing judge was satisfied that no sentence other than immediate imprisonment was appropriate in all the circumstances of the offending. After stating the sentences to be imposed for the individual counts his Honour turned to the questions of cumulacy and concurrency. The sentencing judge considered that, given the circumstances he had mentioned, there was a requirement for some cumulation in relation to counts 6 and 7. His Honour determined that the term of imprisonment in relation to count 6 was to be cumulative on the terms in relation to counts 1 - 5 and that the term of imprisonment in relation to count 7 was to be cumulative on the terms in relation to counts 1 - 6. The sentencing judge also provided for a non-parole period of 2 years and 8 months (ts 69 -71).
Earlier, the sentencing judge had made a forfeiture order pursuant to s 48 of the Proceeds of Crimes Act 2002 (Cth) in relation to cash and items that were seized when search warrants were executed at Mr Scott's residential premises. Mr Scott consented to the forfeiture order.
The parties' submissions
Submissions on the sentence appeal
Ground 1 of the sentence appeal asserted that the sentence imposed with respect to count 1 was manifestly excessive. In support of ground 1 counsel for Mr Scott contended that it would have been appropriate for the sentencing judge to give a greater sentencing discount for counts 1 - 5 than count 6 or count 7. In particular, count 1 did not have the aggravating factors found with respect to counts 6 and 7 and had the greatest mitigation by way of the plea of guilty. Counsel submitted that the sentences imposed did not reflect that difference and the sentence imposed with respect to count 1 was, in all the circumstances, manifestly excessive.
Ground 2 of the sentence appeal asserted that the total effective sentence infringed the first limb of the totality principle. In support of ground 2 counsel for Mr Scott contended that the total effective sentence was infected by the erroneous disposition with respect to count 1. Otherwise, while accepting that the offending was serious and involved some aggravating features, counsel submitted that the total effective sentence of 4 years' imprisonment was not commensurate with the overall criminality involved in the offending having regard to the relevant circumstances including Mr Scott's personal circumstances. Counsel referred to R v Russell[7] and R v Temmingh.[8]
[7] R v Russell [2017] SASCFC 126.
[8] R v Temmingh [2005] NSWCCA 261.
The respondent submitted that the sentence imposed on count 1 was not manifestly excessive. Nor, according to the respondent, did the total effective sentence infringe the first limb of the totality principle. The respondent contended that the offending in the matter represented a very serious example of steroid importation offending. Counsel for the respondent relied on deterrence, both general and specific, as an important sentencing factor, acknowledged the various mitigating circumstances but said that they had been properly taken into account by the sentencing judge, and also referred to R v Russell and R v Temmingh.
Submissions on the non-parole order
Mr Scott contended that the sentencing judge had imposed a non-parole period that was, in all the circumstances, manifestly excessive.
Counsel for Mr Scott referred to the following factors: (1) Mr Scott had ceased to use steroids - indicating the prospect of rehabilitation; (2) Mr Scott was not likely to re-offend; (3) Mr Scott's mental condition, PTSD and body dysmorphia; and (4) Mr Scott's cooperation with the authorities in making candid disclosures. Counsel also contended that the total effective sentence was high and should be moderated by the non-parole period as ordered. It was submitted that the non-parole period of 2 years and 8 months far exceeded what was required in order to achieve justice.
The respondent relied on the same matters raised in answer to the sentence appeal and contended that the non-parole period was not manifestly excessive.
Applicable legal principles: sentencing for Commonwealth offences and appellate review of sentences for Commonwealth offences
In Soerensen v The Queen this court described the general sentencing principles applicable to Commonwealth offences[9] (including the application of the totality principle in that context)[10] and some of the principles that inform appellate review of a sentencing disposition.[11] We adopt that description without repetition. It is, however, appropriate to emphasise some aspects of these matters as follows.
[9] Soerensen v The Queen [2020] WASCA 114 [66] ‑ [95].
[10] Soerensen v The Queen [71] - [73], [80] - [83].
[11] Soerensen v The Queen [74] - [79].
The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act 1914 (Cth). Among other things:
1.By s 16A(1), in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
2.By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.
Subject to limited statutory exceptions, s 16A requires an instinctive synthesis of the relevant and known considerations.
Section 16A of the Crimes Act accommodates the application of common law sentencing principles. For example, the totality principle is accommodated in s 16A even though it is not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed.[12]
[12] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [25].
On countless recent occasions, without seeing the need to recite authority given that the propositions are so well established, this court has stated to the effect that:
1.Sentencing is a discretionary exercise. That discretion is of fundamental importance. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. An appellate court can intervene only if the appellant demonstrates either an express or implied material error.
2.Express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.
3.In determining whether a sentence for an individual offence is manifestly excessive, the sentence should be viewed in light of: (a) the maximum penalty for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and (d) the offender's personal circumstances.
4.The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
5.The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
6.When an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.
7.Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.
8.A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
9.If, in a particular case where manifest excessiveness or inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive or inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the adequacy or inadequacy of a sentence.
10.Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy or inadequacy of the total effective sentence imposed at first instance.
The grounds advanced by Mr Scott allege implied error. Accordingly, Mr Scott must demonstrate that the sentencing outcome was not open to the sentencing judge in the proper exercise of his Honour's discretion. That applies equally to Mr Scott's challenge by ground 1 (as to the alleged excessiveness of the 1 year and 4 months' sentence on count 1); the challenge by ground 2 (as to the alleged excessiveness of the 4 years' total effective sentence); and the challenge by the single ground of appeal in CACR/5/2022 (as to the alleged excessiveness of the 2 years and 8 months' non-parole period). In all cases it must be shown that the exercise of the sentencing judge's discretion resulted in an outcome that was unreasonable or plainly unjust.
In considering the standards of sentencing customarily observed with respect to a federal offence, it is necessary for this court to have regard to the relevant range of sentences established across all Australian States and Territories for offending of that type.[13] In dealing with appeals against sentences passed on federal offenders it is necessary for there to be consistency of decisions throughout Australia.[14] Consistency is achieved by the proper application of the relevant statutory provisions having proper regard to what has been done in other cases, and why it was done, and the work of the intermediate courts of appeal.[15]
[13] Tang v The Queen [2020] WASCA 194 [106].
[14] Hili v The Queen [57].
[15] Hili v The Queen [18], [56].
Disposition - Sentence Appeal (CACR/162/2021)
Ground 1: Is the sentence as to count 1 manifestly excessive?
The statutory purpose of s 233BAA(4) is to prohibit the importation, without requisite approval, of certain substances many of which have legitimate therapeutic uses under appropriate control. For example, as the sentencing judge noted, testosterone can be prescribed for medical use. The Act prohibits uncontrolled importation so as to prevent uncontrolled self-medication within the community. The medical and other issues suffered by Mr Scott as a result of his use of imported steroids serve as a practical example of the dangers to the public of uncontrolled importation and self-medication. In this respect the sentencing judge made an unchallenged finding that there can be significant physical and psychological adverse health effects to those who consume steroids without the care and control of properly qualified medical practitioners.
As with dangerous illicit drugs of addiction, the major sentencing considerations for an offence of prohibited intentional importation of tier 1 goods are general and personal deterrence. The other sentencing considerations generally accepted to be applicable to dangerous illicit drugs of addiction are also relevant in the present context:
The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[16]
[16] R v Ng [2012] WASCA 180 [34].
There is no complaint as to the sentencing judge's identification of the major sentencing considerations. Nor does Mr Scott complain about the sentencing judge's identification of and reference to the s 16A(2) matters as were relevant and known to the court. Those matters included the matters prescribed by s 16A(2)(a) (nature and circumstances of the offending); s 16A(2)(c) (Mr Scott's course of conduct); s 16A(2)(f) (Mr Scott's contrition); s 16A(2)(g) (the plea of guilty); s 16A(2)(h) (Mr Scott's cooperation by making candid disclosures); s 16A(2)(j) (personal deterrence); s 16A(2)(ja) (general deterrence); s 16A(2)(k) (the need to ensure adequate punishment); s 16A(2)(m) (Mr Scott's personal circumstances including his PTSD, body dysmorphia and otherwise prior good character); s 16A(2)(n) (the prospect of rehabilitation - this including Mr Scott having ceased to use steroids and being unlikely to re-offend given the adverse health and other consequences of his steroid use); and s 16A(2)(p) (the probable effect that the sentence would have on Mr Scott's family and dependants). The sentencing judge also referred to Mr Scott's consent to the forfeiture order.[17] These matters have been canvassed in earlier sections of these reasons and need not be repeated.
[17] A matter which may be taken into account in passing sentence: Proceeds of Crime Act 2002 (Cth) s 320(a).
Count 1 was a relatively serious example of an offence of its type in contravention of s 233BAA(4) of the Customs Act.
The offending the subject of count 1 involved a substantial amount of testosterone enanthate (1,018.7 grams) together with lesser quantities of dromostanolone propionate (99.5 grams) and trenbolone enanthate (199.6 grams). The offending occurred after 11 earlier packages containing steroids had been intercepted and Mr Scott had been formally warned by the ABF that his activities were illegal. Mr Scott took steps to avoid detection of the offending. As well as his personal steroid use, Mr Scott was conducting a commercial enterprise, as principal, importing the tier 1 goods, converting powder into injectable form, packaging the resulting product and ultimately distributing the products for monetary reward. The business was sizable. Mr Scott fulfilled some 350 orders between November 2016 and October 2017. Most of the orders were to repeat buyers. The sentencing judge correctly characterised Mr Scott's activities as involving a serious business of prohibited intentional importation. The offending was premeditated, well organised and part of an ongoing course of deliberate unlawful conduct.
There are relatively few comparable cases involving sentencing for a contravention of s 233BAA(4) of the Customs Act. The parties referred to R v Russell and R v Temmingh. Intermediate appellate courts[18] have also considered sentences in relation to offending contrary to s 233BAA(4) of the Customs Act in R v Pha,[19] Garcia v The Queen,[20] Nguyen v R[21] and He v R.[22]
[18] There are also single judge appeals against Magistrates Court decisions. See eg Duffy v Richardson [2004] ACTSC 47. It is, however, appropriate to limit consideration to the work of the intermediate appellate courts: Hili v The Queen [18], [56] - [57].
[19] R v Pha [2004] NSWCCA 445.
[20] Garcia v The Queen [2013] NSWCCA 241.
[21] Nguyen v The Queen [2016] NSWCCA 5.
[22] He v The Queen [2016] NSWCCA 220.
R v Pha is of no assistance. There an offender was sentenced to 5 years and 3 months' imprisonment for importing a trafficable quantity of MDMA and 3 months' imprisonment for importing anabolic steroids without approval contrary to s 233BAA(4) of the Customs Act. The sentence for the importation of the tier 1 goods was already served by the time the appeal was heard. The Court of Criminal Appeal in New South Wales said nothing of substance as to that aspect of the offender's sentence.
R v Temmingh was a Crown appeal. The offender, then a veterinary surgeon, intentionally imported 5 kgs of nandrolone decanoate, an anabolic substance being a tier 1 good. The sentencing judge ordered the offender's release conditional on a 3 year good behaviour order and payment of a $30,000 pecuniary penalty. The sentencing judge rejected a contention that the offender imported the substance for the purpose of commercial resale. Rather, his motivation was the development of a new treatment for horses. There was no evidence that the offender intended to use the substance on human beings. However, the offending followed earlier federal offences in relation to the supply of injectable steroids.
The sentencing judge allowed a 25% discount for an early plea of guilty.
The Court of Criminal Appeal in New South Wales allowed the appeal on the ground that the sentence was manifestly inadequate. It was said that the leniency of the sentence failed to have due regard to the objective criminality of the offence and the principle of general deterrence.[23] The offender was resentenced to 12 months' imprisonment, but it was directed that he be released forthwith on giving security that he would be of good behaviour for 3 years and pay a pecuniary penalty of $30,000. In providing for that sentence the court applied a principle that in resentencing on appeal following an inadequate sentence the sentence 'will generally be less than that which should have been imposed and towards the lower end of the available range'.[24] The court was also mindful that as the offender had been at liberty since his sentence a custodial sentence should not be undertaken lightly. While the offender was to be resentenced to acknowledge the objective seriousness of the offending it was not appropriate, in the particular circumstances, to impose a custodial sentence.[25]
[23] R v Temmingh [26].
[24] R v Temmingh [27].
[25] R v Temmingh [28] - [29].
The order for conditional release is explained by the latter considerations. So far as there was otherwise a sentence of 12 months' imprisonment that should be understood as being lenient and towards the lower end of the available range. Once that is appreciated, and due regard is had as to the early pleas of guilty and similarities as to Mr Scott's prior warning and Mr Temmingh's prior offending, the outcome in R v Temmingh is broadly consistent with the sentence of 1 year and 4 months' imprisonment on count 1. While there was a larger importation in R v Temmingh the circumstances of Mr Scott's offending were more serious in that the tier 1 goods as imported by Mr Scott were intended for human use as part of a relatively sophisticated commercial enterprise that Mr Scott was conducting as principal.
In Garcia v The Queen the offender imported two suitcases containing pseudoephedrine - the first contained 20.6 kg (with a purity of 68 - 72%) and the second contained 21.1 kg (with a purity of 67 - 73%). Pseudoephedrine in these quantities and purities is a precursor which can produce a practical yield of substantial quantities of methylamphetamine hydrochloride. The offender pleaded guilty and provided assistance to law enforcement authorities, receiving a combined discount against sentence of 45%. The offender was a courier acting on the promise of substantial monetary reward. The offender was sentenced to 2 years and 6 months' imprisonment to be released on recognisance after serving 18 months and entering into a good behaviour order for a period of 12 months. An appeal against sentence on the ground that it was manifestly excessive was dismissed.
Nguyen v The Queen also involved pseudoephedrine. The offender was convicted after trial of importing two packages weighing 3.605 kg with a purity of 62 - 68%. The offender was sentenced to 2 years and 6 months imprisonment to be released on recognisance after serving 1 year and 6 months. While the offender was sentenced on an erroneous basis, the appeal was dismissed. The Court of Criminal Appeal in New South Wales was of the view that no other sentence was warranted.
In He v The Queen the offender imported 4.122 kg of pure ephedrine worth an estimated $288,540 - $453,420. He was also sentenced for possession of a further 340 grams of ephedrine. The offender was more than a mere courier but not a principal. He pleaded guilty and received a discount of 25% on account of the plea. At first instance the importation offence attracted a sentence of 3 years' imprisonment with the offender to be released on recognisance after serving 2 years. On appeal it was found that there were various errors on the part of the primary court. The Court of Criminal Appeal in New South Wales resentenced. The substituted sentence on the importation offence was 2 years and 6 months' imprisonment.
Little assistance can be derived from Garcia v The Queen, Nguyen v The Queen or He v The Queen. Beyond those cases being concerned with offences of prohibited intentional importation of tier 1 goods there are few comparable features with the present case. In each case the culpability of the offender was greater than Mr Scott's culpability in relation to the offending the subject of count 1. But so too the sentences imposed on the offenders were greater than the sentence imposed on Mr Scott in relation to the offending the subject of count 1.
R v Russell is a decision of the Full Court of the Supreme Court of South Australia. The offender was convicted of 49 counts of importing tier 1 goods, one count of attempting to import tier 1 goods and one count of possessing goods unlawfully imported. The goods were anabolic or androgenic substances,[26] human chorionic gonadotrophin[27] and human growth hormone.[28] The importations took place over a seven-month period between March and October 2015. The total net weight of the steroids imported or attempted to be imported was approximately 2.11 kg. The market value of the steroids was estimated to be about $86,135. The offender acted as a middleman for a distribution network in exchange for free or subsidised steroids for his personal use.
[26] Described as being a synthetic variant of the male sex hormone testosterone with the effect of increased muscle growth and decreased body fat.
[27] Described as having the effect of avoiding testicular atrophy (an undesirable side effect of the use of steroids and human growth hormone).
[28] Described as having the effect of muscle gain and fat loss as well as faster healing and increased energy levels.
The offender was sentenced to a total effective sentence of 3 years imprisonment with a recognisance order that he be released after serving 2 years.
An appeal was allowed on the ground that the sentencing judge erred in failing to properly consider two matters. This was held to have resulted in a sentence that was manifestly excessive. The offender was found to be an excellent candidate for rehabilitation. The Full Court resentenced the offender to a total effective sentence of 2 years and 6 months' imprisonment with the offender to be released after 8 months after entering into a recognisance to be of good behaviour. The Full Court started with a notional head sentence of 3 years' imprisonment but reduced the sentence to 2 years and 6 months' imprisonment in recognition of the offender's pleas of guilty.
At the appeal hearing, Mr Scott's counsel sought to make something of an observation by Kelly J (as her Honour then was) in R v Russell.[29] By reference to a sentencing schedule Kelly J stated that courts have tended to make 'some distinction' between penalties imposed for importations of illicit drugs and precursors such as ephedrine and pseudoephedrine compared to importations which involve anabolic and androgenic substances (the latter category appearing to more frequently attract an order for immediate release).[30] The sentencing schedule referred to was not reproduced in the decision. Nor, in this appeal, has there been any attempt to identify intermediate appellate decisions which demonstrate the basis for the suggested distinction. In that respect, as previously noted, there are very few intermediate appellate cases dealing with a sentence for an offence against s 233BAA(4) of the Customs Act.
[29] Appeal ts 7 - 8.
[30] R v Russell [30].
The distinction is readily understandable if, by 'illicit drugs' and 'precursors', reference was being made to 'border controlled drugs' and 'border controlled precursors' under div 307 of the Criminal Code Act 1995 (Cth).[31] The maximum penalties for importation offences in relation to such substances are substantially more than the 5 years' imprisonment or fine of 1,000 penalty units (or both) for an offence of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act.[32] The maximum penalty for the different offences provides a basis for a distinction of the kind observed by Kelly J. The maximum penalty for an offence, taken and balanced with all other relevant factors, provides a yardstick.[33]
[31] Noting, in this respect, that at the time of the appellant's offending and presently ephedrine and pseudoephedrine are both a 'border controlled precursor' and 'tier 1 goods': Criminal Code Regulations 2002 (Cth) reg 5F items 3, 13; Criminal Code Regulations 2019 (Cth) reg 16 items 3, 13; Customs Regulations 2015 (Cth) reg 130(1) sch 7 pt 1 items 4 and 18.
[32] For example: (1) as to the importation of a 'border controlled drug' the maximum penalty ranges from 10 years' imprisonment or 2,000 penalty units or both to life or 7,500 penalty units or both depending on the quantity of the substance; and (2) as to the importation of a 'border controlled precursor' the maximum penalty ranges from 7 years' imprisonment or 1,400 penalty units or both to 25 years' imprisonment or 5,000 penalty units or both depending on the quantity of the substance. See Criminal Code Act s 307.1 - s 307.3 and s 307.11 - s 307.13.
[33] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
Ultimately, nothing turns on whether there is any distinction as identified by Kelly J. R v Russell is not a case where the prohibited intentional importation of anabolic and androgenic substances contrary to s 233BAA(4) of the Customs Act resulted in an order for immediate release. Rather, the offending resulted in a term of imprisonment of 2 years and 6 months.
There are difficulties in comparing the circumstances of the offending in R v Russell with the circumstances of the offending in relation to count 1. In R v Russell there were numerous counts, over seven months, where smaller amounts were imported but in total there was some 1.6 times the anabolic or androgenic substances the subject of count 1. The offender in R v Russell was a middleman rather than the principal. Once these differences are taken into account, and the two sentences are viewed in their fuller context, the sentence imposed in relation to count 1 is broadly consistent with the sentencing outcome in R v Russell.
In contending that the sentence imposed in relation to count 1 was manifestly excessive the focus of Mr Scott's complaint was that the sentence for count 1 should have reflected Mr Scott's alleged lesser culpability for that offending as against the offending the subject of counts 6 and 7.
It is true that, comparing the offending the subject of counts 1, 6 and 7, the latter two counts had additional aggravating features in that they were committed while Mr Scott was on bail. But in the whole of the circumstances applying to the various offences this is not a basis for any material disparity in terms of sentencing outcomes. The offending the subject of count 1 occurred after Mr Scott received the warning from the ABF in relation to the 11 intercepted packages for which he was never charged. There was thus a like aggravating factor in terms of manifest disregard for the law that applied to count 1. However, counsel for Mr Scott is correct to state that, all other matters being equal, there ought to have been a higher discount for the plea of guilty in relation to count 1 than the pleas of guilty in relation to counts 6 and 7. Mr Scott offered to plead guilty to counts 1 - 5 at an earlier time and only determined to plead guilty to all counts about two months before the date listed for trial. The sentencing judge was cognisant of the timing issue. His Honour stated that the discount for the pleas of guilty operated at different levels for the different counts.[34] The precise effect cannot be discerned from the sentencing remarks as the sentencing judge did not state a percentage discount. The difference is, however, likely to have been moderated by his Honour's unchallenged finding that there was a strong case against Mr Scott.
[34] ts 68.
While, in respect of a discount for the plea of guilty, there is a basis for differentiating between count 1, on the one hand, and counts 6 and 7, on the other, the argument that the sentence imposed for count 1 is manifestly excessive by reference to the sentences imposed for counts 6 and 7 is misconceived.
It is wrong to focus on two aspects of the circumstances of the offending the subject of the various counts and suggest that one of a series of individual sentences is manifestly excessive because it does not reflect a particular difference. The correct approach has been identified earlier (see [48.3] above). The basis for Mr Scott's complaint under the rubric of ground 1 is not grounded in principle. Nor, in our view, is there a proper basis for the contention that the sentence for count 1 does not reflect the different circumstances that pertain to that offending as against the sentences and circumstances that pertain to the offending the subject of counts 6 and 7. The sentence the subject of count 6 is lower (8 months' imprisonment) but concerns a significantly lesser quantity of tier 1 goods. The sentence the subject of count 7 is higher (2 years' imprisonment) but concerns a significantly higher quantity of tier 1 goods and multiple importations. Once these factors are taken into account, together with the differential timing of the pleas of guilty, we are satisfied that there is no material disparity in sentencing outcomes such as might bespeak material excessiveness as to the sentence imposed in respect of count 1.
The maximum penalty for the offending the subject of count 1 was 5 years' imprisonment or a fine of $210,000 or both. For the reasons previously given the offending was a relatively serious example of an offence of prohibited intentional importation of tier 1 goods in contravention of s 233BAA(4) of the Customs Act. The sentence of 1 year and 4 months' imprisonment was broadly consistent with the sentencing outcomes in the limited cases with comparable features to the offending the subject of count 1. In terms of mitigating circumstances the most significant factor was Mr Scott's early plea of guilty. We are satisfied that this was properly taken into account in arriving at the sentence of 1 year and 4 months' imprisonment. Otherwise, while Mr Scott's personal circumstances were relevant, the matters personal to Mr Scott were of lesser weight in terms of mitigation. In any case those personal circumstances were subsidiary considerations. The major sentencing considerations were general and personal deterrence.
We are satisfied that the sentence of 1 year and 4 months' imprisonment for count 1 is of a severity that is appropriate in all the circumstances of the offence. The sentence is not unreasonable or plainly unjust so as to signify that a substantial wrong has occurred or there has been some misapplication of principle. To the contrary the sentence was within the range of a sound exercise of the sentencing discretion when viewed from the perspective of the maximum penalty and after taking into account all relevant facts and circumstances and all relevant sentencing factors. We would not imply or infer error from the sentencing outcome.
Ground 1 is without merit and should be dismissed.
Ground 2: Does the total effective sentence infringe the first limb of the totality principle?
Mr Scott's initial argument in support of ground 2 relied on him succeeding on ground 1. Mr Scott has not established that the sentence imposed in relation to count 1 was manifestly excessive. Accordingly, the submission that the total effective sentence is infected by an erroneous disposition with respect to count 1 must fail.
In the alternative, counsel for Mr Scott submitted that the total effective sentence infringed the first limb of the totality principle in any event. In contending that the total effective sentence was not commensurate with the overall criminality and personal circumstances of Mr Scott, counsel relied on five matters:
1.While accepting that the offending involved large quantities of steroids, it was said that Mr Scott's repeated importation attempts arose, at least in some way, out of a failure to receive packages ordered online due to ABF interception.
2.The importations were not purely commercial in that there was a personal aspect.
3.Mr Scott ceased the use of steroids of his own volition.
4.Mr Scott has suffered a deleterious effect on his physical health as a result of his use of the steroids - a punishment he will carry for life.
5.The impact of Mr Scott's mental health in the form of his PTSD and body dysmorphia.
The first matter was rejected by the sentencing judge (see [34] above). That factual finding is unchallenged on appeal and is dispositive of this contention. As to the second matter, while there was undoubtedly a personal aspect to Mr Scott's use of the tier 1 goods, that does not undermine the aggravating circumstance that Mr Scott was conducting a relatively sophisticated commercial enterprise as principal. Mr Scott was supplying the steroids to his buyers with the potentially harmful consequences within the community that the statutory prohibition is intended to avoid. The sentencing judge took the third and fourth matters into account. So too the sentencing judge took the fifth matter into account but said that, while it provided some explanation for Mr Scott's offending, it was of minimal relevance. That was undoubtedly correct. At best Mr Scott's PTSD and body dysmorphia were a partial explanation for the prohibited intentional importations for Mr Scott's personal use. The intended use in Mr Scott's commercial enterprise is another matter. Mr Scott's mental health conditions did not contribute to this aspect of his offending. The sentencing judge made a finding, unchallenged on appeal, that Mr Scott's offending was motivated not only by his personal use but so as to obtain financial reward. General deterrence remained a major sentencing consideration.
Counts 6 and 7 constituted separate and distinct offending to the offending the subject of counts 1 - 5. The offending the subject of counts 6 and 7 involved significant additional criminality - all the more so given that these offences occurred at a time well after the offending the subject of counts 1 - 5 while Mr Scott was on bail for his other offending. Moreover, the quantities involved in count 7 are substantial. Count 7 also involved multiple prohibited importations which were charged as a single count. This offending was aggravated by Mr Scott having recruited BC to receive the steroids. In the circumstances a degree of accumulation was open and, in our view, appropriate. Counsel for Mr Scott did not appear to contend otherwise.[35] The real question is whether the total effective sentence of 4 years' imprisonment bears a proper relationship to the overall criminality involved in the offending comprised in counts 1 - 7, viewed in its entirety, having regard to all relevant circumstances, including those referable to Mr Scott personally, and the total effective sentences imposed in comparable cases.
[35] Appeal ts 10 - 11.
In all the circumstances we are satisfied that the total effective sentence of 4 years' imprisonment was within the range open on a proper exercise of the sentencing discretion.
We are of that opinion having taken into account: (1) the maximum penalty for the offences; (2) the objective circumstances of the offending as a whole as recounted earlier in these reasons; (3) the total effective sentences imposed in prior cases with some features comparable to Mr Scott's offending - in particular the sentencing outcomes in R v Temmingh and R v Russell. In that regard we are satisfied that, viewed as a whole, Mr Scott's offending the subject of counts 1 - 7 required a total effective sentence of a severity that was substantially greater than that imposed in R v Temmingh or R v Russell. We have already observed that the offending the subject of count 1 was a relatively serious example of an offence of this kind. The offending the subject of count 7 was an even more serious example of such offending. And each of counts 3, 4 and 5 involved over 500 grams of testosterone enanthate meaning that, while lesser offending than that comprised in count 1, these offences were still to be characterised as serious; (4) the place which Mr Scott's overall criminal conduct occupies on the scale of seriousness of offences of this kind; (5) the significance of general and personal deterrence and the need for community protection in respect of offending of this type; (6) Mr Scott's pleas of guilty; (7) Mr Scott's contrition and cooperation; (8) Mr Scott's prospects of rehabilitation; (9) Mr Scott's personal antecedents and circumstances; and (10) all other relevant sentencing matters as referred to in these reasons.
The total effective sentence of 4 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors, including the total effective sentences imposed in comparable cases. It was appropriate, in order to properly mark Mr Scott's overall criminality, to order the accumulation of the sentences for counts 6 and 7 with the sentence for count 1, the sentences for counts 2 - 5 to be served concurrently. In all the circumstances it was reasonably open to the sentencing judge to do so.
The total effective sentence was within the range reasonably open to the sentencing judge on a proper exercise of the sentencing discretion. Error should not be implied or inferred from the sentencing outcome in relation to the total effective sentence. The first limb of the totality principle was not infringed.
While we would grant leave to appeal on ground 2, the ground must be dismissed.
Disposition - Non-Parole Period (CACR/5/2022)
In Oliveira v The Queen[36] this court summarised the general principles governing the setting of non-parole periods for federal offences by reference to the court's reasons in Stipkovich v The Queen.[37] We adopt those passages from Oliveira and Stipkovich. It is not necessary to repeat them in full. It is, however, convenient to re‑state the following while acknowledging that the relevant citations are found in Oliveira and Stipkovich.
[36] Oliveria v The Queen [2020] WASCA 32 [48] - [55].
[37] Stipkovich v The Queen [2018] WASCA 63 [29] ‑ [35].
As to setting the non-parole period:
1.The Crimes Act creates a separate and exhaustive regime for fixing non‑parole periods for sentences of imprisonment for federal offences.
2.Generally, with specified exceptions, the court must fix a single non‑parole period when sentencing for a federal offence and when imposing a sentence exceeding 3 years' imprisonment upon a person not already serving a federal sentence.
3.The fixing of a non‑parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.
4.The length of the non‑parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence.
5.When fixing the non‑parole period, the court must consider all of the circumstances of the case, including the matters listed in s 16A(1) and (2) of the Crimes Act. However:
[T]he weight to be attached to those factors, and the manner in which they are relevant, will differ due to the different purposes underlying each function. Sentencing factors counting against mitigation may increase both the length of the head sentence and the proportion that the non‑parole period bears to the head sentence. The converse is true of factors in favour of mitigation.[38] (citations omitted)
6.The discretion to fix the non‑parole period is not constrained by a requirement that the non-parole period should bear a particular relationship with the head sentence.
[38] Oliveria v The Queen [52].
Factors identified as material to the determination of the appropriate ratio for a non-parole period include: (1) the length of the head sentence and its position in the permissible range; (2) the seriousness of the offence; (3) the prospects of rehabilitation; and (4) the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence.[39]
[39] Oliveria v The Queen [53].
As to the last point, it is worth repeating what was said by this court in Soerensen v The Queen:
It is necessary that both the head sentence and any non-parole period reflect the deterrent and punitive effects of a sentence for a serious offence. See, generally, Director of Public Prosecutions (Cth) v Gregory. An unduly short non-parole period for a serious offence may, depending upon the facts and circumstances of the particular case, tend to undermine the sentencing considerations of personal and general deterrence. See, generally, Director of Public Prosecutions v Bulfin.[40] (citations omitted)
[40] Soerensen v The Queen [94].
The discretionary character of the decision to fix the length of the non-parole period is fundamental to appellate review. As with an appeal against sentence, an appellate court can only interfere if the appellant demonstrates either an express or implied material error. In the present appeal Mr Scott relies on implied error, contending that the non-parole period was manifestly excessive. As has been seen in the context of ground 1, implied error arises where the end result is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
In Lam v The Queen McLure P (Buss & Newnes JJA agreeing) explained the process for determining whether a non-parole period is manifestly excessive:
In determining whether a non-parole period is manifestly excessive (or inadequate) this court applies the same test it applies to head sentences, modified to take into account any statutory minimum or maximum. In particular, the court has regard to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the antecedents of the offender. Whether it be a challenge to the head sentence or a non-parole period, the standards customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence.[41] (citations omitted)
[41] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [49].
We have already addressed the matters specified in s 16A(2) of the Crimes Act as are relevant to the present case and known to the court. In that respect the disposition of the single ground of appeal in appeal CACR/5/2022 is to be understood in the context of what has been stated previously in these reasons. The s 16A(2) matters of particular significance to the non-parole period are Mr Scott's contrition (s 16A(2)(f)), the pleas of guilty (s 16A(2)(g)), Mr Scott's cooperation in making candid disclosures (s 16A(2)(h)), personal deterrence (s 16A(2)(j)), general deterrence (s 16A(2)(ja)) and the prospect of Mr Scott's rehabilitation (s 16A(2)(n)). It will be appreciated that a number of the earlier matters feed into the prospect of Mr Scott's rehabilitation. In this respect, as counsel for Mr Scott emphasised, the sentencing judge found that Mr Scott was not likely to re-offend[42] and there was the prospect of rehabilitation.[43]
[42] ts 62, 63, 68.
[43] ts 68.
The parties did not address the court on the standards of sentencing customarily imposed in terms of fixing a non-parole period for offences of the kind committed by Mr Scott. That is unsurprising where, as has been seen, there are limited comparable cases - and what cases there are have next to no discussion as to the fixing of a non-parole period or the making of a recognisance release order and the fixing of a pre-release period. The guidance provided by the cases is minimal. No sentencing pattern has emerged.
The findings that Mr Scott was not likely to re-offend, and there was the prospect of rehabilitation, cannot be shorn from the objective circumstances of Mr Scott's offending. Mr Scott continued to re-offend over a protracted period. He committed the offences the subject of counts 1 - 5 between August 2017 and November 2017 despite receiving prior warning in respect of the interceptions that occurred between July 2016 and June 2017. The offence the subject of count 6 was committed in December 2018 despite being on bail for the offending the subject of counts 1 - 5. Mr Scott then further re-offended in July 2019 by the five prohibited intentional importations the subject of count 7. That further re-offending occurred despite Mr Scott having received the warning and then being charged and bailed on two occasions.
In the circumstances, while it must be accepted that Mr Scott was not likely to re-offend and there was the prospect of rehabilitation, personal deterrence remained a major sentencing consideration. It was a factor to be given significant weight in the exercise of the discretion to fix the non-parole period.
Mr Scott's non-parole period of 2 years and 8 months is undoubtedly high. That is particularly so given the findings made as to Mr Scott not being likely to re-offend and the prospect of rehabilitation. In the end, however, we have concluded that the non-parole period does not reach, although it approaches, a length which could properly be characterised as unreasonable or plainly unjust. If the non-parole period had been any longer, the position may well have been different.
We have reached this conclusion taking into account and weighing the relevant facts and circumstances and the principles relating to the making of an order fixing a non-parole period. The factual matters and circumstances, as are relevant and known to the court, have been referred to previously and need not be repeated. In the present case there is a need to balance the objective seriousness of the offending, and the need for general and personnel deterrence, with Mr Scott's generally favourable antecedents and the findings that Mr Scott was not likely to re-offend and there was the prospect of rehabilitation. It is also necessary to recall that, while the length of the non‑parole period should be the minimum time that justice requires that the offender must serve having regard to all the circumstances of the offence, the court must nevertheless ensure that the sentence reflects the criminality involved and fulfils the sentencing considerations of personal and general deterrence. Taking all these matters into account, the order fixing a non-parole period of 2 years and 8 months, while high, is not unreasonable or plainly unjust so as to signify that a substantial wrong has occurred or there has been some misapplication of principle. The non-parole period of 2 years and 8 months is not manifestly excessive. Error cannot be inferred from the sentencing outcome.
The single ground of appeal the subject of appeal CACR/5/2022 (the appeal in relation to the order as to eligibility for parole) had a reasonable prospect of succeeding. There should be leave to appeal on that ground. However, the ground must be dismissed.
Conclusion and orders
Mr Scott requires an extension of time in relation to the appeal as to the order for eligibility for parole. The extension should be granted. Mr Scott foreshadowed an intention to challenge the order fixing the non-parole period when filing the application for leave to appeal in relation to sentence. However, there was an inadvertent failure to formally apply for leave to appeal against the order fixing the non‑parole period within the time prescribed by the rules. That omission was not attributable to Mr Scott.
In the appeal against sentence (CACR/162/2021) there should be leave to appeal on ground 2. However, ground 2 fails. Leave to appeal on ground 1 should be refused. It follows that the appeal must be dismissed.
In the appeal against the order fixing the non-parole period (CACR/5/2022) there should be leave to appeal on the single ground of appeal. However, as that ground fails, the appeal must be dismissed.
Accordingly, the orders to give effect to these reasons are:
1.In appeal CACR/162/2021 (the appeal against sentence):
(a)Leave to appeal on ground 1 is refused.
(b)The appellant has leave to appeal on ground 2.
(c)The appeal is dismissed.
2.In appeal CACR/5/2022 (the appeal against the order fixing the non-parole period):
(a)The time for the appellant to apply for leave to appeal is extended to 27 January 2022.
(b)The appellant has leave to appeal on the single ground of appeal.
(c)The appeal is dismissed.
Annexure 'A': Summary of the Counts and Sentences
| Count | Date of Interception | Description | Sentence | Concurrent/ Cumulative |
| 1. | 25 Aug 2017 | 1,317.8 grams of anabolic or androgenic substances (AAS) comprising: · 1,018.7 grams of testosterone enanthate (78.5% purity); · 99.5 grams of dromostanolone propionate (92% purity); and · 199.6 grams of trenbolone enanthate (93.3% purity). | 1 year 4 months | Head sentence |
| 2. | 13 Sep 2017 | 209 grams of AAS being testosterone enanthate (84.2% purity). | 4 months | Concurrent with count 1 |
| 3. | 02 Oct 2017 | 509.2 grams of AAS being 10 sachets of testosterone enanthate (56.3% - 100% purity). | 6 months | Concurrent with count 1 |
| 4. | 02 Oct 2017 | 512.4 grams of AAS being testosterone enanthate (73.9% purity). | 6 months | Concurrent with count 1 |
| 5. | 14 Nov 2017 | 500.4 grams of AAS being testosterone enanthate (74.9% purity). | 6 months | Concurrent with count 1 |
| 6. | 28 Dec 2018 | 197.4 grams of AAS being testosterone enanthate (97.7% purity). | 8 months | Cumulative on count 1 |
| 7. | 11 Jul 2019 - 26 Jul 2019 | Five packages containing a total of 2,526.5 grams of AAS comprising: · a package intercepted on 11 July 2019 containing 499 grams of testosterone cypionate (91.6% purity) and 200.2 grams of testosterone propionate (98.3% purity); · a package intercepted on 12 July 2019 containing 199.5 grams of testosterone propionate (98.8% purity); · a package intercepted on 15 July 2019 containing 500.2 grams of testosterone cypionate (86.9% purity); · a package intercepted on 24 July 2019 containing 299.7 grams of testosterone propionate (100% purity) and 29.7 grams of methandienone (89.9% purity); and · a package intercepted on 26 July 2019 containing 798.2 grams of testosterone enanthate (undeterminable purity). | 2 years | Cumulative on counts 1 and 6 |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Vaughan
31 JANUARY 2023
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