Duffy v Richardson [2004] ACTSC 47 (18 June 2004)

Last Updated: 23 June 2004

GERARD AUSTIN DUFFY v MARK RICHARDSON

[2004] ACTSC 47 (18 June 2004)

SENTENCE - Magistrates Court - appeal against sentence - importation of prohibited anabolic steroid - conscious attempt to conceal substance - 223.9 grams being eleven times the permitted amount - periodic detention for 20 weekends - sentence within appropriate range.

Customs Act 1901 (Cth), s 233BAA(4)

Customs Regulations 1926, Schedule 1AA, reg 179AA

R v Brewer [2004] ACTCA 10

DPP (Cth) v El Karhani (1990) 21 NSWLR 370

R v McKeagg (unreported, District Court of Western Australia, 14 March 2003)

Sentencing Manual, Law Principles and Practice in New South Wales (Judicial Commission of NSW, Sydney, 2001).

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 14 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 18 June 2004

IN THE SUPREME COURT OF THE )

) No SCA 14 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GERARD AUSTIN DUFFY

Appellant

AND: MARK RICHARDSON

Respondent

ORDER

Judge: Connolly J

Date: 18 June 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against sentence be dismissed.

2. The Magistrate's orders be confirmed.

1. This is an appeal from a decision of a Magistrate who on 4 March 2004, following a plea of guilty to the offence of possessing a prohibited import, namely 223.9 grams of the anabolic steroid testosterone, sentenced the appellant to five months imprisonment to be served by way of 20 periods of periodic detention. The appellant appeals against the severity of the sentence. He was also charged and convicted of a Commonwealth offence going to a false Customs declaration, and an ACT offence. The penalties imposed for these offences are not subject to appeal.

2. The offence involved the importation into Australia of a quantity of the prohibited anabolic steroid testosterone. The statement of facts before the Magistrate indicated that the appellant returned to Australia from a trip abroad on 1 October 2003. The day after his return the appellant had photographs developed, and the photo development laboratory informed authorities that some of the photographs "depicted blue pills being crushed by pestle and mortar, hundreds of pink tablets and hundreds of vials" (AB 9). As a result of this information police executed a search warrant on the appellant's premises on 15 October 2003. The statement of facts states -

During the execution of the search warrant, police found that the defendant had in his possession a grey suitcase containing 7 boxed bottles of `glacier aftershave' and 1 boxed bottle of `musk aftershave'. The defendant stated during the execution of the warrant that the bottles were in fact testosterone which he personally transferred from vials into aftershave bottles. He stated that he used these substances to build up bones and muscle strength.

Also found were 2 "glad sandwich bags" that the defendant stated contained crushed pills that he also used to build muscle strength.

Further jars of clear liquid were also found; the defendant stated that they also contained testosterone.

The defendant stated to police that he had purchased the substances in Amsterdam and had brought them back into Australia by aeroplane. The defendant admitted that he knew it was illegal to import and possess steroids in Australia.

3. The substance of the appeal was the argument that the Magistrate had erred in not giving sufficient weight to the assertion from the bar table that the appellant was using the substance for a therapeutic purpose. It was stated in the sentencing submissions by his lawyer that, while it was acknowledged that the purpose for using the steroids was, as stated in the statement of facts, for muscle development, the appellant was not doing this for reasons of vanity or physical training but for pain relief for serious injuries he had suffered in a motor vehicle accident in Thailand in 2001. There was also a letter by way of a character reference from his mother that referred to the injuries, and stated that "even now he suffers from some discomfort at times" (AB17).

4. Against this, the pre-sentence report states (AB 12) -

The offender informed he is in good health and there is no mental health history. He reported a knee injury sustained in an overseas motorcycle accident approximately two years ago. He stated however he has no disability or medical concern from this injury.

5. A character reference tendered in the appellant's case from a Mr M Roesler states that (AB 13) -

[the appellant] appears to become unhealthily obsessed with the interest of the day. These interests have included motorbike racing, weight lifting, discus throwing and travel.

6. Mr Roesler asserted that the appellant would not, in his opinion, hurt another person -

As such, I believe that any substance found in Gerard's possession would have been as a result of his interest obsession and therefore for his personal use only.

7. The Magistrate accepted that the importation was for the appellant's own use and not for purposes of sale or supply. However, in relation to the assertion that it was for therapeutic purposes, she said (AB 5) -

... it's been put to me that the defendant imported the testosterone to use as a means of self-medicating or self-treating the injury that I have no doubt he has suffered. As to whether that, in the context of this offence, is a mitigating factor that's been adequately made out, I am not certain of and I can't accordingly make definite findings in that regard.

8. It seems to me that, to the extent that self-medication would be a genuine mitigating factor for this offence, the Magistrate cannot be said to have fallen into error by saying that the mitigating factor had not been adequately made out. Such a factor must be established on the balance of probabilities by the appellant, and the only material going to genuine self-medication is the assertion from the bar table and the statement from his mother that he had an injury which still gives him problems. Against that, the pre-sentence report asserts that "he has no disability or medical condition from this injury", and Mr Roesler's reference, which the appellant tendered, asserts that the possession was "as a result of his interest obsession", which presumably goes to weight lifting and discus throwing, and is a statement which is quite inconsistent with the assertion that it is for some therapeutic purpose connected with an injury. There was no report from any treating medical practitioner indicating that the use of testosterone would be of any validity by way of a treatment for his old motorcycle injury. I am of the view that the Magistrate did not err in concluding that the therapeutic use matter had not been adequately made out. To the extent that she said she "could not be certain" I do not take this to be applying a wrong test. I am satisfied on the material before her that she could not have been satisfied, on the balance of probabilities, that there was a therapeutic use for the testosterone.

9. In the absence of any direct medical evidence as to the therapeutic benefit of the substance, it seems to me that had the learned Magistrate accepted the submission that self-medication of this substance was a mitigating factor, she would have fallen into the error identified by the author of Sentencing Manual, Law Principles and Practice in New South Wales (Judicial Commission of NSW, Sydney, 2001). Mr Potas states at 351 that -

Assumptions made by trial judges in relation to the nature of drugs and the psychiatric effects of drug abuse, made in the absence of expert evidence, are indicative of an error of approach. Accordingly, care should be taken by the sentencing judge to ensure that his or her own personal views, or even those obtained from judicial experiences, do not intrude into reasons for sentencing: Mason (Stuart William) [2000] NSWCCA 82 per Abadee J at [21]-[24].

10. It seems to me that it is not for a sentencing judge or magistrate, in the absence of expert evidence, to accept as a mitigating factor a submission that a prohibited import has a legitimate therapeutic use.

11. Even if there had been such evidence, however, Mr White, for the respondent, made the point that the very purpose of this legislation is to prohibit the importation, without the approval of the Secretary of the Department of Health, of certain substances many of which may have, under appropriate control, legitimate therapeutic use. The very purpose of the Act is to prohibit uncontrolled importation and self-medication. Where Parliament has evinced such an intention, it seems to me that a sentencing judge or magistrate would fall into error in negating the intention of Parliament and creating a defence of self-medication.

12. It seems to me that it follows that the respondent is correct in his further submission that, even if there was evidence that self-medication was the purpose, this does not go to mitigation in the context of this offence. The appellant was charged and pleaded guilty to being in possession of a prohibited import contrary to s 233BAA(4) of the Customs Act 1901 (Cth) which provides:

(4) A person is guilty of an offence against this subsection if:

(a) the person intentionally imported goods; and

(b) the goods were tier 1 goods and the person was reckless as to that fact; and

(c) their importation:

(i) was probited under this Act absolutely; or

(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.

13. The maximum penalty for a breach of this section is a fine not exceeding $100,000 or imprisonment for 5 years, or both.

14. Tier 1 goods are set out pursuant to regulation 179AA of the Customs Regulations 1926 in Schedule 1AA. They include a range of substances, many of which are commonly available in lawful medications available either on prescription or even, in very limited quantities, over the counter at a pharmacy. An example of such a tier 1 substance is pseudoephedrine, which is both a commonly used ingredient in various over the counter cold and flu medications and a precursor drug to the manufacture of the illicit drug known as speed. For most of the products listed in Schedule 1AA it could be said that a person might be using them for self-medication. As Mr White submitted, the purpose of the Parliament in prohibiting the import of these substances is precisely to prohibit self-medication. Parliament has decided that if these substances are to be accessed by members of the community, they are only to be accessed lawfully by way of prescription or other lawful sale, and not by illicit import. It is not appropriate for the Court to second guess Parliament.

15. The learned Magistrate in her reasons adverted to this in addressing the question of general deterrence. She said (AB 5) -

In my view, in particular the - I'm not sure whether I said this before, but the offence of possession of a prohibited import is a very serious matter, one that carries a maximum penalty of five years imprisonment. It's clearly a matter that the legislature has decided that a message needs to be given to the community that this sort of behaviour is not appropriate and will not be tolerated, especially in the context that there are legal means of going about - if indeed the testosterone was for a genuine medical purpose, there are legal means of going about obtaining it.

16. It seems to me that this is correct, and that in sentencing a person for the possession of the prohibited tier 1 import, which in most cases is some form of pharmaceutical or therapeutic product, the mere fact that the person may possess the product with the intention of self-medicating does not of itself amount to a factor in mitigation. True it is that the upper end of the penalty scale would be reserved for the more serious type of offence where the person possessed the product for the purposes of sale or supply to another. But mere possession for medical self-use is a matter which the Parliament has expressly sought to prohibit. The Magistrate would, it seems to me, have erred if she had formed a view, which is in effect the view being urged on me in this appeal, that a finding that a person had in their possession a prohibited tier 1 substance for the purpose of self-medication for some injury is of itself a significant mitigating factor requiring a lower end penalty.

17. This offence involved the importation of some 223.9 grams of the prohibited anabolic steroid testosterone, a substance that appears as a tier 1 goods in Schedule 1AA. For many such goods there is a "critical quantity" set out in the schedule. This relates to those substances where it is only an offence to import more than a certain amount unless permission is obtained from the Secretary of the Department of Health and Ageing. In the case of anabolic steroids, which include testosterone, that critical quantity is 20 grams. The amount involved here was some 11 times the permissible amount. In sentencing submissions, the appellant's lawyer said that the quantity of steroids was such that he would use them for a period of two years, which again indicates that this was a substantial quantity of substance.

18. Sentencing submissions were made before her Worship on 19 February 2004. She there indicated that she had concerns about the importation charge, and said, "it would be appropriate that Mr Duffy be assessed for alternatives to imprisonment", and she adjourned the matter to obtain a pre-sentence report. In doing this, it seems to me, she clearly flagged that the importation matter was serious and that she was considering the imposition of periodic detention or community service.

19. In her reasons for sentence the learned Magistrate accepts that the substance was for personal use, but she made the observation, fairly it seems to me, that this involved a fairly sophisticated illicit importation, with the substances transferred into bottles of aftershave lotion. The appellant knew the importation was illicit, and took steps to conceal the importation, which was in fact not detected at the customs barrier and only came to light because of the photographs. The learned Magistrate said that (AB 5) -

because of the type of offence that it is, unfortunately for Mr Duffy, my view is that general deterrence must play a significant role in the sentence that's imposed.

20. Although general deterrence does not appear in s 16A(2) of the Crimes Act 1914 (Cth) among the list of factors that are relevant to sentencing federal offenders, appellate courts have long recognised that general deterrence is an appropriate factor to take into account in respect of Commonwealth offences: see R v Brewer [2004] ACTCA 10; DPP (Cth) v El Karhani (1990) 21 NSWLR 370. In his submissions on this appeal, Mr White has set out a number of recent sentencing decisions where courts dealing with the offence of importation of tier 1 goods have stressed the importance of general deterrence. An example are the remarks of Western Australian District Court Judge Wisbey in R v McKeagg (unreported, 14 March 2003) where his Honour said at 6 -

Breaching the provisions of the Customs Act puts at risk the objects of that legislation and requires a sentence that will act as a deterrent not only to you but to others who might choose to behave in a similar manner.

21. It seems to me that her Worship was not in error in adopting the view she did in relation to the need for general deterrence for this type of offence, where the Parliament has ruled that importation of this type of substance without approval is an offence carrying a maximum penalty of five years imprisonment.

22. In all the circumstances of this case, accepting the appellant's prior good character and early plea of guilty, it seems to me that the Magistrate's approach of avoiding full-time incarceration, and opting rather for five months of periodic detention, was an appropriate use of the sentencing discretion.

23. The appeal against sentence should be dismissed and the Magistrate's orders confirmed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 18 June 2004

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: pappas, j. - attorney

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 3 June 2004

Date of judgment 18 June 2004