R v Temmingh [2005] NSWCCA 261 (11 August 2005)

CITATION: R v Temmingh [2005] NSWCCA 261

FILE NUMBER(S):

928/2005

HEARING DATE(S): 28/06/05

JUDGMENT DATE: 11/08/2005

PARTIES:

Commonwealth Crown - Applicant

Sven Arne Temmingh - Respondent

JUDGMENT OF: Grove J Hoeben J Hall J

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

COUNSEL:

Mr RJ Bromwich - Applicant Crown

Mr M J King - Respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions - Applicant Crown

Peter Ash & Associates - Respondent

CATCHWORDS:

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

LEGISLATION CITED:

Customs Act 1901 (C'th)

Customs Prohibited Imports Regulations 1956

Stock Medicines Act 1989 (C'th)

DECISION:

Crown appeal. Appeal allowed. Respondent resentenced.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

928/2005

GROVE J

HOEBEN J

HALL J

Thursday, 11 August, 2005

REGINA v Sven Arne TEMMINGH

JUDGMENT

1 GROVE J: I agree with Hoeben J.

2 HOEBEN J:

Offences and sentence

On 28 January 2005 the respondent was sentenced by Charteris DCJ for an offence that he on 16 December 2003 did intentionally import goods, namely Nandrolone Decanoate, an anabolic substance which were tier one goods the importation of which was prohibited under the Customs Act 1901 (Commonwealth) unless the approval of a particular person, namely the secretary to the Department of Health and Ageing, or an authorised person had been obtained pursuant to regulation 5H, sub-regulation 2 of the Customs Prohibited Imports Regulations 1956 and at the time of that importation, that approval had not been obtained and that the respondent was reckless as to the fact that the said goods were tier one goods. The importation of more than 20 grams of the substance without permission is an offence under s233BAA(4) of the Customs Act. The maximum penalty for the offence is a period of imprisonment for 5 years and a maximum fine of $110,000.

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

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

Factual background

5 On 15 April 2003 the respondent was sentenced by Simpson J in respect of two offences against Orders pursuant to the Stock Medicines Act 1989 (Commonwealth). The offences were wilfully supplying a quantity of injectable steroids for which the respondent was fined $3,000 and wilfully making a false entry in a record in relation to the steroids for which the respondent was fined $2,000. At the time of sentence the respondent was in practice as a veterinary surgeon.

6 On 4 November 2003 an email was sent to the respondent from a supplier in China providing details of the product Nandrolone Decanoate. On 10 November 2003 the respondent replied to that email and ordered 5 kgs of Nandrolone Decanoate for the price of $US1900 per kilogram. The email of 10 November 2003 included instructions as follows.

“You will have to relabel Nandrolone as Creatine Monohydrate or Glucosamine HCL as before. Still too much trouble with Customs costs (charge us $20 extra tax on invoice) etc. You can send me the invoice for Nandrolone separate later. Once you have air courier for Glucosamine plus Creatine, then you can fax me the invoice and airway bill, but please be sure there is no Nandrolone mentioned anywhere!”

7 On 1 December 2003 the respondent by telegraphic transfer sent the sum of $US10,500 to the supplier. On 11 December 2003 the supplier confirmed by email that the goods had been shipped. On 16 December 2003 the goods, the subject of the charge, arrived in Sydney from China on an Air New Zealand flight. On 17 December 2003 the imported substances were subjected to a covert examination by Australian Customs Service officers. The importer of the substances was nominated as Australian Racing Pharmaceuticals Pty Limited. The respondent was a director of that company but his co-director Mr Carmichael was completely unaware of the importation and it seems clear that the importation was not on behalf of the company but on behalf of the respondent personally.

8 An analysis of the goods by the Customs Service revealed that the substance incorrectly labelled as Glucosamine had a net weight of almost 5 kgs and contained an estimated 85.8% Nandrolone Decanoate.

9 On 24 December 2003 Customs officers executed a warrant on the respondent. A seizure notice was forwarded in respect of the 5 kgs drum of Nandrolone Decanoate.

10 It was common ground that the substance Nandrolone Decanoate is used for a variety of serious medical conditions and as such has a legitimate clinical application. The substance can also be used upon animals, in particular dogs and horses, and is frequently used for that purpose. It is used in veterinary medicine for convalescence and tissue repair following injury. It can improve appetite and mood in racing horses. The taking of Nandrolone, which is a steroid, can also enhance the athletic performance of human beings but can have significant adverse effects when taken by human beings. It is for this reason that its importation and export is strictly controlled in Australia.

11 Five kilograms of Nandrolone Decanoate is a large quantity. There was expert evidence that such a quantity would equate to at least 10,000 equine doses. There was also evidence (the precise amount was disputed by the respondent) that such a quantity of Nandrolone Decanoate would have a potential resale value in Australia significantly higher than its cost of purchase being in the order of $200,000.

12 In about August 2004 the respondent was deregistered as a veterinary surgeon. The basis for that deregistration was the conviction for the offences dealt with by Simpson J and the respondent’s plea of guilty to this offence. Not surprisingly the respondent has suffered economic loss as a result of his deregistration as a veterinary surgeon.

13 The respondent entered a plea of guilty to the charge in the Local Court at an early point in time. The matter could have been dealt with in the Local Court but the Crown chose to have the matter dealt with in the District Court.

Remarks on sentence

14 His Honour reviewed the factual background to the offences, referred in detail to the competing submissions and made findings in relation to certain factual issues which were in dispute.

15 His Honour found that the respondent was very much aware that the importation of the Nandrolone Decanoate was illegal. His Honour noted that there was a degree of calculation and planning involved in that the supplier was to falsely name the substance and Australian Racing Pharmaceuticals Pty Limited was nominated as the importer of the substance.

16 His Honour specifically rejected the submission by the Crown that the respondent had imported the substance for the purposes of commercial resale. In that regard his Honour accepted the evidence of Angela Burke, who was called in the respondent’s case. The effect of her evidence was that in conversations with the respondent he had made it clear to her that his intention when importing the Nandrolone Decanoate was to develop a paste which could be orally ingested by horses. If he were successful, this would be a significant advance in how the substance was administered. At that time Nandrolone Decanoate could only be administered by injection. The problem with that process was that the substance would remain in the horse’s system for some months, thereby preventing the horse from racing during that period.

17 His Honour also found that there was no evidence that the respondent intended to use the Nandrolone Decanoate on human beings although there would always be a risk that the substance could have fallen into the wrong hands.

18 A matter which his Honour took into account was that the respondent had for many years practised in the United States where the approach of the regulatory authorities to the use of anabolic steroids in thoroughbred horses was much more lenient and non-interventionist than the regime in Australia.

19 His Honour had regard to the cost of the substance which had been lost to the respondent. He had regard to the effects of his loss of registration as a veterinary surgeon, to which this offence had in part contributed. His Honour allowed a 25% discount for the early plea of guilty. In those circumstances his Honour was of the opinion that despite the seriousness of the offence it did not “demand a gaol sentence”. The requirement for general and personal deterrence would be adequately met by a significant financial penalty, particularly when taken with the loss of registration and the cost of the imported substance.

Appeal

20 It was the submission of the Crown that his Honour’s sentencing discretion had miscarried in that he focused almost entirely upon the respondent’s intention when importing the Nandrolone Decanoate. Having satisfied himself that the respondent did not intend the importation for human consumption, the resulting sentence was manifestly inadequate. In particular his Honour had failed to have regard to the size of the importation (two hundred times the allowable limit), had failed to have regard to the respondent having re-offended within such a short time after being sentenced by Simpson J for steroid related offences and failed to have adequate regard to the element of planning and deception involved in the importation. The requirement for both general and specific deterrence required that his Honour impose a custodial sentence.

21 In addition the Crown submitted that his Honour had erred in the following respects: He had taken into account a wholly irrelevant consideration, ie the more lenient approach to steroid use in the United States and had incorrectly characterised the function which he was required to perform as sentencing judge “I am not satisfied that a period of imprisonment is mandatory in this matter.” (ROS 13.9)

Consideration

22 In relation to the specific errors referred to by the Crown, I agree that the more lenient regime for steroid use in the United States was a wholly irrelevant consideration and to the extent that his Honour gave any weight to it he was in error. The respondent was well aware of the different approach in Australia. Nevertheless, although his Honour referred to that matter, it seems to have played little part in his overall approach.

23 If the sentence “I am not satisfied that a period of imprisonment is mandatory in this matter” had stood alone without explanation, it would have involved error. Such, however, was not the case. His Honour explained his use of that sentence later in his remarks (ROS 14.4):

“The Commonwealth Crimes Act requires me to impose a period of imprisonment only if no reasonable alternative is available or words to that effect. I do not consider that this is a case which demands as I have said a gaol sentence.”

In that context his Honour’s use of that sentence did not involve error.

24 The question of the respondent’s intention in relation to the importation was clearly a matter of considerable importance. It was open to his Honour on the evidence before him particularly that of Ms Burke, to find as he did that the importation was intended for experimentation purposes so that it could be better administered to horses and that it was not intended for human consumption. No error in his Honour’s approach to that question has been demonstrated.

25 There is considerable force, however, in the submission that by focusing on this issue his Honour failed to have adequate regard to matters such as general deterrence and the objective seriousness of the offence. The importation was a very large one. Planning and deception were involved. The proximity in time between the importation and the sentence imposed by Simpson J for a similar but not identical offence indicates a blatant disregard for the legislation in this area and is a significant aggravating factor.

26 Although his Honour referred to these matters, they were significantly subordinated to the issue of the respondent’s intention when importing the Nandrolone. In doing so I am of the opinion that his Honour did fall into error. The leniency of the sentence sends out an entirely wrong message to persons contemplating similar large importations and fails to have due regard to the objective criminality of the offence and the principle of general deterrence. In those circumstances the Crown submission that the sentence was manifestly inadequate is made good.

Decision

27 In my opinion, his Honour should have imposed a custodial sentence. Nevertheless this is an appeal by the Crown and as such significant restraint has to be exercised by the Court before intervening. The Court must be astute to avoid a result, which may be in the nature of double jeopardy. If the Court does substitute its own sentence for an inadequate sentence, that sentence will generally be less than that which should have been imposed and towards the lower end of the available range (R v KM and Ors [2004] NSWCCA 65 at [33]).

28 In this case I am also mindful of the fact that the sentence in this matter was handed down on 28 January 2005 and that the respondent has been at liberty since that date. In such circumstances re-sentencing so as to impose a custodial penalty should not be undertaken lightly.

29 In the particular circumstances of this case I am of the opinion that the respondent should be re-sentenced so as to acknowledge the objective seriousness of the offence but that at this point in time it is not appropriate to impose on the respondent a custodial sentence.

30 The orders which I propose are:

(1) Appeal allowed.

(2) The sentence imposed by Charteris DCJ is quashed. In lieu thereof the respondent is convicted under s20 of the Crimes Act 1914 (Commonwealth) and is sentenced to 12 months imprisonment. Pursuant to s20(1)(b) of the Act, I direct that he be released forthwith upon his giving security without surety that he will comply with the following conditions:

(i) He will be of good behaviour for a period of 3 years.

(ii) That he will pay to the Commonwealth a pecuniary penalty of $30,000 on or before 28 July 2005.

31 HALL J: I agree with Hoeben J.

**********

LAST UPDATED: 15/08/2005