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Supreme Court 15 April 2003

Director General NSW Department of Agriculture v Temmingh

[2003] NSWSC 247

Drugs
ANABOLIC STEROIDS SUPPLY USE AND RECORD KEEPING CRIMES ACT 1900 PART 1A DETERMINATION OF PENALTY

Citation: Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 247
Court: Supreme Court of New South Wales, Common Law Division
Date: 15 April 2003
Judge(s): Simpson J

Background

The defendant was a registered NSW veterinary surgeon engaged by a horse stud company operating in the Hunter Valley. From late 1997, the company began exporting horses to China, and the defendant continued providing veterinary services in connection with that operation.

In September and October 1999, the defendant arranged for two large consignments of injectable anabolic steroids to be sent to China by post, one dispatched through a veterinary wholesaler and one posted personally. He also transported steroids himself on a separate trip to China. The total value of the steroids supplied across all three incidents was approximately $35,404.

The Director General of the NSW Department of Agriculture charged the defendant with three offences under Orders made pursuant to the Stock Medicines Act 1989. The defendant ultimately pleaded guilty to two of the three counts: unlawfully supplying injectable steroids (Count 1) and making false or misleading entries in his veterinary treatment records (Count 3).

  • Whether the supply of steroids by post to China constituted an offence against NSW law, including whether NSW criminal law could apply to conduct occurring outside the State's territorial limits
  • Whether the defendant's personal transportation of steroids to China and their administration there constituted an offence under NSW law
  • How penalties should be determined for what was apparently the first prosecution under this relatively recent regulatory regime
  • What credit, if any, should be given for pleas of guilty
  • Whether costs should be ordered against the defendant under the Supreme Court (Summary Jurisdiction) Act 1967
  • Whether a certificate of conviction was required to be sent to the Veterinary Surgeons Investigating Committee under the Veterinary Surgeons Act 1986

Decision

Simpson J accepted the guilty pleas to Counts 1 and 3, with the prosecutor treating those pleas as satisfying the entire summons. An agreed statement of facts was placed before the court, although oral evidence was also called on one disputed factual issue. The defendant's account of events differed from the agreed facts in some respects, but the court found those differences were not material to the sentencing outcome.

On the territorial reach of NSW law, the court considered the application of Part 1A of the Crimes Act 1900, which extends NSW criminal law beyond the State's borders in certain circumstances. The defendant did not contest that the postal supplies constituted offences, but he did dispute that his personal delivery of steroids in China involved any breach of NSW law. The court's reasoning on this point ultimately did not affect the penalty, since the defendant was sentenced only in relation to the two counts to which he pleaded guilty.

In assessing penalty, Simpson J took into account that this was the first prosecution under the relevant Orders, that the regulatory scheme was relatively new, and that the defendant had no prior criminal history. The court also considered the objective seriousness of the conduct, including the large quantities of steroids involved and the falsification of treatment records. A 20% discount was applied to reflect the pleas of guilty, notwithstanding some suggestion by the prosecutor that the pleas came late in proceedings.

The court deferred formal entry of conviction and sentence to allow the prosecutor an opportunity to place evidence before the court on the appropriate quantum of costs, as nothing had been put forward on that question at the time of judgment.

Orders Made

  • Count 1 (unlawful supply of injectable steroids): fine of $3,000
  • Count 3 (false or misleading entries in records): fine of $2,000
  • Costs order foreshadowed but deferred pending further submissions on quantum
  • Formal conviction and sentence deferred accordingly
  • Direction for the Chief Executive Officer of the court to prepare and furnish a certificate of conviction to the Veterinary Surgeons Investigating Committee under the Veterinary Surgeons Act 1986

Key Takeaways

  • Under Order No 1 of 1998 made pursuant to the Stock Medicines Act 1989, a veterinary surgeon is prohibited from supplying injectable anabolic steroids except in narrowly defined circumstances, and is required to maintain accurate records of all steroids in their possession.
  • The Supreme Court confirmed that dispatching steroids by post from NSW to an overseas destination can constitute an offence against NSW law, with Part 1A of the Crimes Act 1900 operating to extend the reach of the State's criminal law beyond its territorial limits.
  • In sentencing for a first prosecution under recently enacted regulatory legislation, the relative novelty of the scheme is a relevant consideration in determining appropriate penalties.
  • A 20% discount on penalty was applied to reflect pleas of guilty, even where the timing of those pleas was not entirely uncontested.
  • Where a court convicts a registered veterinary surgeon of a relevant offence, s 26 of the Veterinary Surgeons Act 1986 requires the court to cause a certificate of conviction to be furnished to the Veterinary Surgeons Investigating Committee.

Legislation and Cases Referenced

Legislation:
- Stock Medicines Act 1989 (NSW), s 46
- Order No 1 of 1998 (made under the Stock Medicines Act 1989), Clauses 3A, 3B, 6, and 8C
- Crimes Act 1900 (NSW), Part 1A
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 14
- Veterinary Surgeons Act 1986 (NSW), ss 24 and 26

Cases cited: No cases were identified in the text provided.