Simmonds v Bureau of Customs No. Scciv-01-462

[2001] SASC 306

SIMMONDS v BUREAU OF CUSTOMS
[2001] SASC 306

Magistrates Appeal

1. Wicks J This is an appeal from a decision of a magistrate given on 25 January 2001 in the Adelaide Magistrates Court. The defendant was charged with two counts of importing a prohibited import contrary to s 233(1)(b) of the Customs Act 1901 and one count of making a false statement to a customs officer contrary to s 234(1)(d) of the Customs Act 1901. The defendant was convicted upon each of the three charges and by way of sentence, the learned Magistrate imposed a fine of $700 in respect of the first two charges and a fine of $100 for the third charge.

2. The notice of appeal filed on 7 March 2001 states that the appeal related to sentence only.  The grounds of appeal however indicate that the appeal also relates to conviction.  The grounds of appeal are as follows:

   "1.That the learned magistrate erred in failing to exercise his discretion under s 19(B) of the Commonwealth Crimes Act to proceed against the appellant without recording a conviction with respect of each offence.

   2.That the learned magistrate failed to give appropriate weight to the following factors:-

   (1)the youth of the appellant;

   (2)the appellant’s previous good character;

   (3)    the extenuating circumstances surrounding the appellant’s offending;

   (4)    the potentially severe consequences a conviction would have on the appellant’s ability to travel overseas and seek employment overseas;

   (5) the fact that the prosecution did not oppose the appellant’s application that the matter be disposed of without conviction pursuant to s 19(B) of the Crimes Act."

   Specifically, the first offence related to the importation of one soft air pistol which is a prohibited import.  Similarly, the second offence concerned the importation of a prohibited import, namely 400 tablets of Ephedrine. The third offence involved the making of a false statement to a customs officer.

3. The appellant had been holidaying in Bali where he developed what is commonly referred to as “Bali belly”.  He obtained three packets of Ephedrine from a seven day supermarket on the advice of a fellow traveller.  He was advised that Ephedrine acted as a stimulant which countered the symptoms of “Bali belly”.

4. At another time, during his holiday, the appellant also purchased a soft air pistol.  The appellant freely acknowledged packing the unused tablets and the air pistol in his luggage for his return to Australia.  Whilst on the flight, he filled out the required customs form.  He considered whether to disclose the tablets and air pistol contained within his luggage.  However, he decided not to take that course.  The learned Magistrate considered this a reckless attitude to adopt.

5. As to the imported items themselves, it was submitted on behalf of the appellant that a number of his fellow university students who were travelling together had each purchased soft air pistols as recreational items.  These pistols do not cause harm to any person to whom the pistol might be aimed, except damage to an eye.  As to the Ephedrine, the quantity found in the defendant’s possession caused the learned Magistrate to consider the possibility of mis-use regardless of the proper intentions of the defendant.  Ephedrine is capable of conversion into amphetamines when made to react with other substances.  The learned Magistrate noted that there were some 400 Ephedrine tablets involved.

6. At the hearing of the complaint, counsel for the appellant made a submission that the learned Magistrate should refrain from recording a conviction against the appellant, and apply s 19B of the Crimes Act 1914. Counsel for the respondent, the Bureau of Customs, neither opposed nor consented to that application.

7. At the time of the commission of the offence, the appellant was aged 21 years.  He resided with his parents and he was in his final year studying for a degree in computer science at the University of South Australia.  In addition to his studies, the appellant had a part-time job with TNT Pty Ltd as a dock hand where he loaded and unloaded trucks.

8. In the course of submissions on sentence, counsel for the appellant urged the learned Magistrate not to record a conviction against the appellant pursuant to s 19B(1)(b) of the Crimes Act 1914.  He submitted to the learned Magistrate that the appellant was on the verge of obtaining tertiary qualifications which would qualify him for employment in a field of computer science and information technology.  Counsel informed the learned Magistrate that the appellant was young and ambitious, and that he had aspirations eventually to gain work experience overseas in either the United Kingdom or the United States.  It was put to the learned Magistrate that a conviction for the customs offences would affect the appellant’s ability to obtain entry visas, and that the punishment of a conviction in these circumstances would be harsh and disproportionate to the gravity of the offences committed.

9. Counsel for the appellant submitted also that his client had an unblemished character.  He also took account of extenuating circumstances which are referred to earlier in the reasons.

10. The question of whether this matter should be disposed of without recording a conviction was the subject of some discussion between the learned Magistrate and counsel for the appellant.  In the course of that discussion, the decision of Lanham v Brake [1983] 34 SASR 578 was discussed but in the end, the learned Magistrate rejected the appellant’s application and proceeded to record convictions on all charges.

11. It is true that the learned Magistrate placed some weight on Lanham v Brake.  The important distinctions were, however, that in Lanham v Brake the defendant was a mature adult and a legal practitioner aged 56.  In the present case, the appellant was 21 years of age.  In Lanham’s case the defendant imported fruit and there was evidence before the court that such importation had the potential to devastate the horticultural industry in this State.  The learned Magistrate’s findings went beyond issues discussed in Lanham v Brake.

12. The penalty under consideration in this matter involves the exercise of judicial discretion.  It has been held in many cases that an appellate court is not entitled to substitute its own discretion for that of a magistrate in the court below unless an error in the exercise of that discretion can be detected: Mullet v Gabrielle [1989] 52 SASR 330 at p 333 and MacAudio and Acoustical Consultants Pty Ltd (In Liq) v Eddy [1999] SASC 433 at par 6. For this purpose there will be such an error where matters which should have been taken into account were not taken into account or where matters which should not have been taken into account were taken into account. An appellate court is not at liberty to exercise its discretion in preference to that of a magistrate in the court below unless and until the magistrate’s discretion is shown to have been flawed in its exercise.

13. In the circumstances, I am of opinion that the learned Magistrate has given careful consideration to the penalties imposed in this case.  If I were to place myself in the position of the learned Magistrate and consider the matter afresh, I might have come to a different conclusion as to whether or not a conviction should be recorded.  That is beside the point.  I can only intervene where a matter of discretion is involved if it can be demonstrated that there has been a miscarriage in the exercise of the discretion of such a magnitude that an appeal court should properly intervene.  In my view I should not intervene in this matter.

14. For the reasons given above I dismiss this appeal.