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Court of Criminal Appeal 11 August 2005

R v Temmingh

[2005] NSWCCA 261

Drugs
SENTENCING EMPHASIS ON INTENTION OF RESPONDENT

Citation: R v Temmingh [2005] NSWCCA 261
Court: New South Wales Court of Criminal Appeal
Date: 11 August 2005
Judge(s): Grove J, Hoeben J, Hall J

Background

The respondent was a veterinary surgeon who, in December 2003, imported approximately five kilograms of Nandrolone Decanoate (an anabolic steroid) from a supplier in China. He instructed the supplier to falsely label the substance as Glucosamine to avoid customs scrutiny. Notably, the importation occurred only months after he had been convicted and fined for separate but related offences involving the unlawful supply of injectable steroids and making false records.

The respondent pleaded guilty in the Local Court at an early stage, and the matter was committed to the District Court for sentencing. The sentencing judge, Charteris DCJ, convicted the respondent but ordered a conditional release under s 20 of the Crimes Act 1914 (Cth), with conditions requiring good behaviour for three years and payment of a $30,000 pecuniary penalty. No period of imprisonment was imposed.

The Crown appealed to the Court of Criminal Appeal, contending the sentence was manifestly inadequate. The maximum penalty for the offence under the Customs Act 1901 (Cth) was five years imprisonment and a $110,000 fine.

  • Whether the sentence imposed by Charteris DCJ was manifestly inadequate for the importation of a prohibited substance under the Customs Act 1901 (Cth).
  • Whether the sentencing judge placed excessive weight on the respondent's stated intention when importing the substance, at the expense of objective criminality and general deterrence.
  • What sentence the Court of Criminal Appeal should impose on re-sentencing, given the respondent had been at liberty since the original sentence and that Crown appeals warrant significant judicial restraint.

Decision

The Court of Criminal Appeal allowed the Crown appeal. Hoeben J, with whom Grove J and Hall J agreed, found that the sentencing judge had erred by giving insufficient weight to the objective seriousness of the offence and the principle of general deterrence, subordinating those considerations too heavily to findings about the respondent's personal intention.

The sentencing judge had accepted evidence that the respondent's purpose in importing the Nandrolone Decanoate was to develop an orally ingestible paste for horses, rather than for commercial resale to humans. While those factual findings were not disturbed on appeal, Hoeben J held that they could not carry the sentencing exercise to the exclusion of other critical factors. The quantity imported (equivalent to at least 10,000 equine doses and a potential resale value of around $200,000), the deliberate deception of customs authorities, and the proximity of the offending to a prior conviction for related conduct were all significant aggravating matters that warranted greater weight.

The Court acknowledged that a custodial sentence would ordinarily have been appropriate. However, it exercised restraint consistent with the principles applicable to Crown appeals, noting that re-sentencing must guard against double jeopardy and that the respondent had already been at liberty for some time since the original sentence. The Court substituted a sentence that recognised the objective seriousness of the offence without, in the particular circumstances, imposing an immediate term of imprisonment.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed by Charteris DCJ quashed.
  • Respondent re-sentenced to 12 months imprisonment under s 20 of the Crimes Act 1914 (Cth), with a direction that he be released forthwith upon giving security (without surety) to comply with the following conditions:
  • Good behaviour for a period of three years.
  • Payment of a $30,000 pecuniary penalty to the Commonwealth on or before 28 July 2005.

Key Takeaways

  • A sentencing court's emphasis on a defendant's subjective intention, while relevant, cannot substantially displace the weight to be given to the objective criminality of a serious importation offence and the principle of general deterrence.
  • Deliberate deception of customs authorities through false labelling, combined with a prior conviction for related offending, constitutes a significant aggravating feature in the sentencing calculus.
  • The Court of Criminal Appeal confirmed that on a Crown appeal, significant judicial restraint is required: if a substituted sentence is warranted, it will generally sit towards the lower end of the appropriate range to avoid a result akin to double jeopardy.
  • Where a respondent has already been at liberty for a substantial period following an inadequate sentence, that circumstance informs the re-sentencing exercise, even where a custodial sentence would ordinarily have been imposed.
  • Proximity in time between prior convictions for related conduct and the commission of a subsequent similar offence is a material aggravating factor, indicating blatant disregard for the relevant legislative regime.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), particularly s 233BAA(4)
- Customs Prohibited Imports Regulations 1956 (Cth), regulation 5H(2)
- Crimes Act 1914 (Cth), s 20 and s 20(1)(b)
- Stock Medicines Act 1989 (Cth)

Cases:
- R v KM and Ors [2004] NSWCCA 65 (principles applicable to Crown appeals and re-sentencing)