Chief Executive Officer of Customs v Odesnik [2010] QMC 3

MAGISTRATES COURTS OF QUEENSLAND CITATION: Chief Executive Officer of Customs v Odesnik [2010] QMC 3 PARTIES: CHIEF EXECUTIVE OFFICER OF CUSTOMS (complainant) v WAYNE ODESNIK (defendant) FILE NO/S: MAG1546/10(4) DIVISION: Magistrates Court PROCEEDING: Complaint – Sentence ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 25 March 2010 DELIVERED AT: Brisbane HEARING DATE: 11 March 2010 MAGISTRATE: Lee G ORDER: Sentence – fine $8000 – conviction recorded – costs $1142.80 CATCHWORDS: CRIMINAL LAW – COMMONWEALTH OFFENCE - importation of Human Growth Hormone by professional athlete – appropriate sentence – section 19B Crimes Act 1914 or a fine with conviction recorded – two step process in considering exercising discretion under section 19B Crimes Act 1914 Crimes Act 1914 (Cth), s 16A, s 19B Customs Act 1901 (Cth), s 233(1)(b), s 233(1AA)(b), s 233(1AB)(b) Customs Legislation Amendment (Criminal Sanctions and other Measures) Act (Cth) 2000 Customs (Prohibited Imports) Regulations 1956 (Cth), r 5G, Schedule 7A(item 3) -- 1 of 21 -- 2 Penalties and Sentences Act 1992 (Qld), s 12 Cobiac v Liddy (1969) 119 CLR 257, cited Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 192 ALR 92; (2001) 122 A Crim R 568, applied Commissioner of Taxation v Doudle [2005] SASC 442, cited Cummins v Duck [2009] ACTSC 20, cited Lanham v Brake (1983) 34 SASR 578, cited Matta v Australian Competition & Consumer Commission [2000] FCA 729, cited Morrison v Behrooz [2005] SASC 142; 155 A Crim R 110, cited R v Abdullahi Mohamed Abdi [1994] QCA 402, cited R v Hooper [2008] QCA 308, cited R v Watene (1988) 94 FLR 234, cited COUNSEL: C Zeilinga for the complainant J Godbolt for the defendant SOLICITORS: Australian Government Solicitor for the complainant Gleeson Lawyers for the defendant [1] Wayne Odesnik, a professional international tennis player, pleaded guilty through his counsel in his absence to a charge under section 233(1)(b) of the Customs Act 1901 (Cth) (“the Act”) of importing into Australia a prohibited substance, namely, a Human Growth Hormone by the name of Somatropin1. On 11 March 2010 I heard submissions from the legal representatives2 of both parties on sentence and reserved my decision. These are my reasons for judgement on sentence. [2] By complaint issued 6 January 2010 Mr Odesnik was charged in the following terms: On 2 January 2010, at Brisbane in the State of Queensland, Wayne Odesnik did, contrary to section 233(1)(b) of [the Act] …and regulations 5G of the Customs (Prohibited 1 With a brand name of “Serostim”; 2 Mr C. Zeilinga of the Australian Government Solicitor’s office for the Complainant; Mr J. Godbolt of Counsel instructed by Gleeson Lawyers for Mr Odesnik; -- 2 of 21 -- 3 Imports) Regulations 1956 (Cth) …import into Australia, prohibited imports without permission, namely: 8 vials of Growth Hormones. [3] Subsection 233(1)(b) of the Act prescribes the conduct which, by virtue of subsections 233(1AA)(b) & (1AB), constitutes an offence of strict liability3. Subsection 233(1)(b) provides: 233 Smuggling and unlawful importation and exportation (1) A person shall not: (a) ….. (b) import any prohibited imports; or (c) ……. (d) ……. [4] Prohibited imports are goods which are prohibited by virtue of section 50 of the Act and regulations made there under and in particular the Customs (Prohibited Imports) Regulations 1956 (Cth): see regulation 5G and Schedule 7A (Item 3). There is no dispute in this case that the 8 vials of Human Growth Hormone (Somatropin (called Serostim)) Mr Odesnik imported into Australia were prohibited imports within the meaning of section 233(1)(b). Each vial contained 6 mg. [5] By the combined effect of a number of provisions in the Act the maximum penalty for this offence dealt with summarily is presently $22,0004. Imprisonment is not an option for an offence under section 233(1)(b). I am told that the maximum penalty was increased from $5,000 to $20,000 on 26 May 2000 and on 10 October 2002 it was increased to $22,0005. It should be noted that, unless expressly excluded by specific legislation, the general sentencing options available under the Crimes Act 1914 (Cth) apply to commonwealth offences. So, for example, an order releasing an offender without recording a conviction under section 19B of the Crimes Act 1914 remains open in a case such as this. [6] The attraction for agitating a sentence on the basis of section 19B of the Crimes Act 1914 (Cth) is that a conviction is not recorded. Unlike for offences under State of Queensland legislation where the court has a discretion whether or not to record a conviction under section 12 of the 3 For definition of “strict liability” see section 6.1 Criminal Code (Cth); 4 Sections 233(1AA)(b), 233AB(2) and 245(4) of the Act; For summary proceedings, any penalty exceeding 200 penalty units is waived; Penalty unit value is $110 – see section 4AA(1) Crimes Act 1914 (Cth); 5 Paragraphs 10 to 14 of “Outline of Submissions” of complainant – exhibit 5; -- 3 of 21 -- 4 Penalties and Sentences Act 1992 (Qld) for a fine, there is no such discretion under the Crimes Act 1914 (Cth). A conviction must be recorded on the imposition of a fine for a commonwealth offence. [7] It is contended for Mr Odesnik that he be released under section 19B of the Crimes Act 1914 without the recording of a conviction. This is opposed by the complainant and it is submitted that the appropriate penalty is a fine in the range of $7,000 to $12,000 with a conviction recorded. The alternative submission for Mr Odesnik is that if a fine is imposed, then it should be significantly lower than that i.e. less than $3,000 based on a decision last year of a New South Wales Magistrate regarding actor Sylvester Stallone. [8] Section 19B of the Crimes Act 1914 (Cth) relevantly provides: 19B Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order:………… [9] After finding a charge proved, once satisfied that the requirements in section 19B(1)(a) & (b) have been met, the orders a court may make under section 19B range from dismissing the charge completely (s 19B(1)(c)), to discharging the person without proceeding to conviction upon that -- 4 of 21 -- 5 person giving a security by way of recognisance upon a range of conditions including to be of good behaviour for a period not exceeding 3 years, paying reparation, compensation or costs within a prescribed time, and probation for a maximum of 2 years (s 19B(1)(d)(i), (ii) & (iii)). Background [10] Mr Odesnik, aged 24 years, was born in South Africa and moved to the United States of America with his parents when he was 3 years old. He is a citizen of the United States. Mr Odesnik has played tennis since the age of 7 years and became a professional tennis player in 2004. His gross earnings in a recent year was $222,109 (US) which, it was submitted, is not much after taking into account expenses. It was submitted he is not a “high flyer” with an entourage like the more high profile players higher in the rankings. I’m told he is ranked just outside the top 100 in the world. [11] On 2 January 2001 Mr Odesnik arrived at the Brisbane International Airport on board a QANTAS flight from the United States of America. His two pieces of luggage did not accompany him but they arrived in Brisbane on 4 January 2010. His luggage had also come from the United States of America. Among the items in one piece of luggage customs officers found one box containing 7 vials of Serostim (6 mg) and a small styrofoam box containing 1 vial of Serostim (6 mg)6. The contents of the 8 vials comprised Somatropin which is a Human Growth Hormone. The trade name of Somatropin is Serostim. [12] Apparently, Mr Odesnik came to Australia to compete, and in fact did compete, in two international tennis tournaments, namely the Brisbane International (2 to 10 January 2010) and the Australian Open (17 to 31 January 2010). Submissions and Discussion [13] The complainant provided an outline of how the prohibited imports were discovered. Mr Odesnik’s two luggage bags arrived at Brisbane on 4 January 2010. Customs officers located all 6 Exhibits 1 & 2 – photos of box and the 8 vials; -- 5 of 21 -- 6 8 vials of the Human Growth Hormone in one bag which had also contained an array of other items: see exhibit 4 (photo of bag contents). [14] Customs officers attended the unit accommodation where Mr Odesnik was staying in Brisbane to question him. Mr Odesnik told Customs officers a number of times that he had sustained a “career ending injury” and these vials were prescribed to him by a doctor in the United States but had not intended to use them until approved by the tennis bodies. He thought he would get a Therapeutic Use Exemption under the Anti-Doping Program (“ADP”)7. More will be said about the ADP later. Mr Odesnik said he could tell the Customs officers the name of the doctor when he gets a copy of the prescription. The prescription and the doctor’s name were never provided. However, through his lawyers, Mr Odesnik subsequently informed customs that he had purchased them over the internet which means that they were not prescribed by a doctor. I note that the name of the doctor with whom he said he had “discussed” this with was not provided. It is further noted by the complainant that the dispensing sticker on the box containing the 7 vials had been torn off. This is clearly evident from exhibit 1 (photo of the box “Serostim”). [15] On the other hand Mr Odesnik’s version of events was that he suffered an injury with a slow recovery. He consulted a doctor about it and the subject of using Human Growth Hormones was raised i.e. he only had “discussions” with that doctor about the use of Human Growth Hormones. He was not saying the doctor actually prescribed Human Growth Hormone as he told the Customs officers on numerous occasions. The vials of Serostim found in his possession were bought by him off the internet. No details were given as to the identity of this doctor and indeed, no details were provided by his legal representatives in his absence as to the nature of this so called “career ending injury” and no medical evidence was adduced in support thereof. In an important matter such as this and the consequences that would flow for a professional international tennis player in these circumstances, one would have thought that provision of this information (if it exists) to be critical in support of his contention that he obtained these vials of Serostim for a genuine medical reason in treating a “career ending injury”. 7 Exhibit 7 – “Tennis Anti-Doping Program 2010” published by “International Tennis Federation” came into effect 1 January 2010 (A.5); Chapter “E” of the ADP is entitled “Therapeutic Use Exemptions; -- 6 of 21 -- 7 [16] Further, the existence of this “career ending injury” seems incongruent with his assertion that while he needed treatment for that injury, he intended not using the vials of Serostim until approved presumably by obtaining a Therapeutic Use Exemption under the ADP, and yet he competed in the Brisbane International and Australian Open tournaments in January 2010 just shortly after they were found in his luggage upon arrival in Australia on 4 January 2010. Mr Odesnik said he had no intention of using the Serostim until it was approved. As previously noted, it is the sole responsibility of each player to be acquainted with all requirements of the ADP and to know what constitutes an anti-doping rule violation8 which includes possession of a prohibited substance. The procedures for applying for a Therapeutic Use Exemption are in Chapter E of the ADP. In short, the player must apply to a Therapeutic Use Exemption Committee (TUEC) in accordance with the procedures in Article 8 of the International Standard for Therapeutic Use Exemptions (ISTUE)9 and that a player is not to assume his application will be granted: see clauses E.3 & E.4 of the ADP. The application to a TUEC constituted by at least three physicians under Article 6.1 ISTUE is to be in the approved form10 accompanied by a comprehensive medical history and other information as required no less than 30 days before approval is needed: see Articles 8.3, 8.4 & 8.9 of ISTUE. The application must include a statement by a qualified physician attesting to the necessity of the prohibited substance in the treatment of the athlete and to state why an alternative form of permitted treatment cannot or could not be used: see Article 8.11 of ISTUE. This brief synopsis of the ADP demonstrates that a player must provide detailed and carefully prepared information for a TUE application. Despite having these vials of Serostim in his possession on 4 January 2010, Mr Odesnik said he had intended at some stage to seek approval before using them. No information was provided to this court in support of a TUE application whether such application had in fact been made or simply material in preparation thereof. It was submitted by his counsel on his behalf that he would definitely not succeed in any TUE application under the ADP. Of course this might explain why documentary evidence of a TUE application was not provided to this court. However, in the same breath Mr Odesnik says, despite having them in his possession which is itself an anti doping rule violation, he was contemplating the seeking of approval to use them at some unknown point for an undisclosed “career ending injury”. He had the opportunity of 8 Clause B.3 in Chapter B of the ADP; 9 Contained in Appendix 3 of the ADP entitled “International Standards For Therapeutic Use Exemptions”; 10 Annexure 1 of Appendix 3 “ISTUE”; -- 7 of 21 -- 8 providing these important details which would have been relevant in support of his explanation as to why he had them in his possession, even though mere possession is itself an anti doping rule violation. Mr Odesnik’s counsel was specifically asked during the hearing as to whether there was any objective evidence to support this “career ending injury” and the response was that he could only rely on “instructions” from Mr Odesnik. In my view, Mr Odesnik’s explanation is not convincing. [17] On the evidence provided to me by both parties, I do not accept that Mr Odesnik obtained these vials for the “career ending injury” he mentioned to the Customs officers and which was referred to in submissions made on his behalf. I accept the Custom’s officers’ version of their conversions with Mr Odesnik when these matters were discussed and that what Mr Odesnik told them that the vials were prescribed by a doctor was incorrect. [18] I note that Dr Stuart Miller, the International Tennis Federation Anti-Doping Manager of the ADP who is based in London was informed of these proceedings on or about 14 January 2010 by Mr Odesnik’s legal representatives and that he awaits the outcome of these proceedings. [19] The exercise of the discretion in section 19B of the Crimes Act 1914 has been extensively considered in the leading case of Commissioner of Taxation v. Baffsky 192 ALR 92; (2001) 48 ATR 7611 in following the approach taken by the High Court in Cobiac v. Liddy (1969) 119 C.L.R. 257 which considered similar provisions in South Australian legislation. Spigelman C.J. who wrote the leading judgement in Baffsky with whom the other members of the court agreed said at 80 of the ATR: Section 19B(1)(b) itself consists of 2 stages. First is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and /or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it „is inexpedient to inflict any punishment‟ or to reach the other conclusions for which the paragraph provides. [20] Spigelman C.J. went on to say that the court was required to take into account those factors in section 16A of the Crimes Act 1914 in determining the second stage as to whether it is inexpedient to inflict any punishment etc as per section 19B(1)(b). This approach has been 11 Court of Criminal Appeal in New South Wales; -- 8 of 21 -- 9 applied in many subsequent sentencing decisions: for example Cummins v. Duck, a decision of the Supreme Court of the Australian Capital Territory12 12 March 2009 per Refshauge J. on appeal from a Magistrate, R. v. Hooper [2008] Q.C.A. 30813; Commissioner of Taxation v. Doudle [2005] SASC 442. [21] Subsection 16A of the Crimes Act 1914 relevantly provides: 16A Matters to which court to have regard when passing sentence etc. (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or 12 Cummins v. Duck, SCA 9 of 2008, BC200901424; [2009] ACTSC 20; 13 Mackenzie AJA wrote the leading judgment with which the other members of the Court of Appeal agreed; -- 9 of 21 -- 10 (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence— that fact; (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person‟s family or dependants. [22] As noted in Baffsky, the professional status of an offender falls within the generic concept of “antecedents”, a word which is in s 19B(1)(b)(i) and s 16A(2)(m). Spigelman C.J. at paragraphs 35 & 38 respectively said: Furthermore, the effect of a conviction on the offender is a material consideration when exercising the s 19B discretion. It arises both with respect to personal deterrence under s 16A(2)(k). It arises generally on the test of “inexpediency”. The fact that a person is subject to additional adverse consequences by reason of the recording of a conviction is a relevant consideration in the exercise of the statutory discretion. [23] I note in Baffsky that the section 19B discretion was exercised in favour of the taxpayer who was a barrister. In that case the Commissioner of Taxation had caused the taxpayer to become bankrupt about 3 or 4 months prior to the issue of the summons. However, there were a range of other factors considered by the court for the purposes of section 19B in addition to the professional status of barrister and the consequences of a conviction for a barrister. -- 10 of 21 -- 11 [24] In considering the first stage in exercising the section 19B discretion, reliance was placed for Mr Odesnik on section 19B(1)(i) - “character, antecedents, age, health or mental condition ...”. Reliance was not placed on the other grounds in section 19B(1)(ii) & (iii) – the offence was trivial and the offence was committed in extenuating circumstances respectively. In any event, had those grounds been relied on, I would agree with the complainant’s submissions that this offence is not trivial and that this offence was not committed in extenuating circumstances. [25] Submissions in support of discharging Mr Odesnik under section 19B focussed at first on a detailed analysis of the ADP. In short, the submission was that, regardless of whether a conviction is recorded or not, Mr Odesnik will definitely be banned from playing at professional level for a maximum of 2 years and a minimum of 1 year. That is a certainty. It is also certain that he will not be granted a retrospective Therapeutic Use Exemption under the ADP provisions. Clause C.6 “Possession of Prohibited Substances etc..” in Chapter C “Anti-Doping Rule Violations” of the ADP is to the effect that possession by a player of a prohibited substance “is an anti-doping rule violation” unless there is a Therapeutic Exemption. Mr Odesnik, it was submitted, is simply ineligible under the ADP for a Therapeutic Exemption. Reference was then made to clause K.7.4 “Methods of Establishing Facts and Presumptions” in Chapter K of the ADP “Proceedings Before an Anti-Doping Tribunal” which provides: K.7.4 The facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction that is not the subject of a pending appeal shall be irrebuttable evidence against the Participant to whom the decision pertained of those facts unless that Participant establishes that the decision violated principles of natural justice. [26] The submission follows that the consequence of Mr Odesnik being banned from playing for 1 to 2 years as a result of an ADP violation is inevitable (clauses M.2 & M.4 of the ADP) regardless of the outcome of these proceedings but that this consequence is a material factor to be taken into account in the sentencing exercise. Reported cases relied on by the complainant to the effect that the relevant professional body should be left to determine what consequences should follow from the recording of a conviction simply do not apply because the consequences here are clear and certain whereas in those cases, the outcome is not clear. The case relied on by the complainant in this respect is R. v. Abdullahi Mohamed Abdi [1994] QCA 402 per McPherson J.A14: see also 14 Paragraph 9 of the complainant’s submissions on section 19B; -- 11 of 21 -- 12 Matta v. Australian Competition & Consumer Commission [2000] FCA 729 (19 May 2000) per French & Kiefel JJ. as they then were and Merkel J. [27] It was submitted for Mr Odesnik that he is a young man without any criminal history and regarding his “antecedents” his status as a professional international tennis player should be treated in a similar fashion to that of a barrister as was the case in Commissioner of Taxation v. Baffsky 192 ALR 92; (2001) 48 ATR 76. Further, he had provided some co-operation with the authorities by having his lawyers disclose that he purchased these vials of Serostim off the internet and that they were not obtained by prescription from a doctor. [28] On the other hand, in opposing the exercise of the section 19B discretion, the complainant outlined the ADP provisions in some detail15 and submitted in less certain terms than submissions for Mr Odesnik that proceedings under the ADP “may” occur16. The decision of the International Tennis Federation (ITP) to initiate anti doping rule violation proceedings is not contingent upon the recording of a conviction. That last point appears not to be an issue. [29] The complainant submits that “character” is a factor to consider under stage one. It was submitted that Mr Odesnik, a professional international tennis player, was fully aware of wrongdoing. It is part of the job. He was required to be aware of the ADP: see clause B.3 ADP in exhibit 7. While the ADP only came into effect on 1 January 2010, it is not disputed that a very similar scheme existed before that. The label on the box of 7 vials of Serostim was removed and he had lied to customs in the first instance about the vials being prescribed by a doctor. Having Serostim in his possession without permission “gives [rise] to unfairness to all the other professional athletes [who] are competing”17. It was submitted that there is a strong need for deterrent penalties. The only reason Mr Odesnik came to Australia in January 2010 was to compete in two international tennis tournaments. The community would expect a conviction be recorded. [30] I accept the complainant’s submissions as to stage one. In my view, even though no criminal history has been alleged in these proceedings and that Mr Odesnik is a relatively young man, he 15 Paragraphs 18, 19 & 20 of the complainant’s submissions on section 19B; 16 Paragraph 19 of the complainant’s submissions on section 19B; 17 Paragraph 22 of the complainant’s submissions on section 19B; -- 12 of 21 -- 13 is a professional international tennis player who must have been acutely aware of the sensitivities of obtaining prohibited substances. I agree with the complainant’s submissions that he tried to cover up the situation by telling the custom’s officers on several occasions that the vials had been prescribed by a doctor when in fact they had not. This is supported by the torn off label on the box containing 7 vials of Serostim. He rendered token co-operation by subsequently instructing his lawyers to advise the complainant that he had obtained the vials over the internet. He still did not provide the name of the doctor with whom he said he discussed this. [31] In my view, I find the first Baffsky step not satisfied under s 19B(1)(b)(i) – “character and antecedents etc”. Given that the other grounds of triviality and extenuating circumstances in section 19B(1)(b) were not relied on, this would be sufficient to preclude the exercise of the section 19B discretion. However, I will also consider and make findings in respect of stage two in the event that I am wrong in respect of stage one. [32] For stage two, the next step is to consider whether it is inexpedient to inflict no punishment or only a nominal punishment on Mr Odesnic having regard to a wide range of factors including those in section 16A(2) cited above. . [33] Similar submissions for Mr Odesnik were made for stage two as those made for stage one. I will not repeat them all suffice to say that all factors in section 16A(2) of the Crimes Act 1914 (Cth) must be balanced in arriving at the appropriate sentence. Because Mr Odesnik is a young professional international tennis player with no previous criminal history, and the certain consequences that will follow under the ADP, it would be inexpedient to inflict only a nominal punishment on him under section 19B. [34] The complainant focussed submissions on the importance of legislative policy: Tylka v. Hardman, an unreported decision of the Supreme Court of Western Australia (BC 9301562). Reference was made to the “Tough on Drugs in Sport Strategy” which was introduced in May 1999 just prior to the Sydney Olympics with consequent legislative amendments to include Human Growth Hormones as a banned substance in customs -- 13 of 21 -- 14 legislation18. As previously noted, the maximum penalty for an offence under section 233(1)(b) dealt with summarily was significantly increased from $5,000 to $20,000 by the Customs Legislation Amendment (Criminal Sanctions and other Measures) Act 2000. I agree that the legislative regime under customs legislation is a necessary consideration when considering exercising the section 19B discretion. In examining the legislative scheme of the Migration Act 1958 in the context of an unlawful escape from an immigration reception centre in Morrison v. Behrooz 155 A Crim R 11019, at [65] Gray J. on appeal from a Magistrate said: The legislative scheme of the Migration Act was a necessary consideration when determining whether to exercise the discretion conferred by s 19B of the Crimes Act. As observed in Commissioner of Taxation v. Baffsky, it is appropriate to have regard to the significance of the conduct regulated by the statute creating the offence when determining whether it is inexpedient to impose punishment ….20 [35] Gray J, then cites a passage from Baffsky21 indorsing judicial statements by Cox J. in Lanham v. Brake (1983) 34 SASR 578 at 584 regarding the Quarantine Act 1908 (C’th) that considerations of deterrence must predominate and relevant considerations include the seriousness of the offence, its prevalence and the obvious difficulty of detecting breaches in circumstances where every piece of luggage cannot be searched at the time of disembarkation by all passengers. As a general proposition I respectfully agree with those remarks and with their applicability to the customs legislative scheme. [36] While it is important to bear in mind the legislative policy in laws creating criminal offences for the purposes of sentencing, this must be balanced against the range of other factors outlined in section 16A(2) of the Crimes Act 1914. That is, considerations of deterrence and what is an adequate punishment, while important, ought not to be given undue weight so as to skew consideration away from other factors that may apply to a particular defendant when considering the application of section 19B. After all, as McKenzie AJA in R. v. Hooper [2008] QCA 308 at [27] and [31] said, each case must be looked at in its own particular context. There, his honour compared and contrasted some authorities considering offences under different commonwealth 18 Paragraphs 25 to 36 of the complainant’s submissions on section 19B; exhibit 8 is a media release dated 13 May 1999 by then Minister for Sport, Jackie Kelly “National Strategy Gets Tough on Drugs in Sport”; exhibit 9 “Tough on Drugs in Sport”, Australia’s Anti-Drugs in Sport Strategy 1999 – 2000 and beyond; 19 [2005] SASC 142; 20 See also [23] at page 118 in Morrison v. Behrooz; 21 Commissioner of Taxation v. Baffsky (2001) 122 A Crim R 568 at [94] – [96]; -- 14 of 21 -- 15 legislation. That case resulted in the exercise of the section 19B discretion for an offence under section 474.17(1) of the Criminal Code Act 1995 (Cth) of using a carriage service in a way that reasonable persons would regard as being menacing with a maximum penalty of three years imprisonment22. While the offence in that case is not a customs offence, in my respectful view, the statements of principle apply here. [37] For the purposes of subsection 16A(2)(a) of the Crimes Act 1914 the circumstances of the offence in this case have already been outlined. Mr Odesnik is a professional international tennis player who arrived in Australia on 2 January 2010 to compete in two international tennis tournaments in January 2010. On 4 January 2010 his luggage arrived which was found to contain the offending vials of Serostim. He had an obligation under the ADP to be aware of anti doping rule violations including the possession of the vials. Mr Odesnik is an elite athlete who should have been well aware of the sensitivities in having possession of the vials without first obtaining appropriate approvals. When speaking with customs officers Mr Odesnik in my view tried to cover up his possession of these vials on the basis that he had a career ending injury and that a doctor had prescribed the vials of Serostim to him. As previously mentioned, this turned out to be incorrect. While he subsequently offered information through his lawyers that he bought them off the internet, in my view that is a token level of co-operation only. Again, as previously outlined, I found Mr Odesnik’s explanation for his possession of the vials to be unsatisfactory to say the least. No objective evidence has been placed before me other than conveyance of his “instructions” to his lawyers for me to be satisfied that he in fact had sustained a “career ending injury”. In my view, the nature and circumstances of this offence strongly militate against the exercise of the section 19B discretion. I accept the complainant’s submissions in this respect. [38] The subject matter in paragraphs 16A(2)(b), (c), (d), (e), (fa), (n) & (p) of the Crimes Act 1914 do not appear to be relevant in this case. In any event, no particular feature encompassing these issues was specifically raised in submissions. In respect of rehabilitation in paragraph (n), there is no suggestion that there is a need for that here. 22 Sending text messages by mobile phone; -- 15 of 21 -- 16 [39] As to paragraphs 16A(f), (g) & (h), I take into account that Mr Odesnik has pleaded guilty to this offence and that this provides some evidence of contrition although there is no other factor pointing to contrition apart from the fact that he subsequently instructed his lawyers to inform the complainant that he bought the vials off the internet. It is clear that Mr Odesnik initially did not co-operate fully with customs officers by telling them that he had a prescription for the vials when he didn’t. [40] Paragraph 16A(2)(j) deals with the deterrent effect the sentence may have on Mr Odesnik. This provision is concerned with personal deterrence as opposed to general deterrence but, as previously outlined, is an important consideration in sentencing. Given that Mr Odesnik is a professional international tennis player who ought to have known better and for reasons previously outlined my view is that personal deterrence is an important factor in this case which militates against the exercise of the section 19B discretion. While he may well be banned from playing for at least one year under the ADP, personal deterrence remains important in the event he returns to the international tennis circuit. It seems that this will be likely given the submission on his behalf that tennis has been his whole life and that he does not have other qualifications. [41] While paragraph 16A(2)(j) does not deal with general deterrence as opposed to personal deterrence, it is clear on the authorities that general deterrence is also a matter to be considered. The legislative scheme in relation to an offence under section 233(1)(b) of the Act makes it clear that the importation of Human Growth Hormones is a serious matter and is contrary to the policy and purpose of the Act. Increasing the maximum penalty in 2000 from $5,000 to $20,000 reflected Parliament’s intention to treat offending of this nature as a serious matter and that the increased penalty was to reflect the need for general deterrence: see Morrison v. Behrooz 155 A Crim R 110 at 129 for similar comments in relation to the Migration Act 1958. Having said that, Gray J. in Morrison exercised the section 19B discretion in favour of the defendant who unlawfully escaped from an immigration detention centre. The defendant there was mentally ill, had attempted suicide and was the subject of a guardianship order. [42] In the present case, general deterrence is an important factor in sentencing Mr Odesnik who is an elite athlete coming into this country in possession of a prohibited substance, Serostim. Not only is it an offence under section 233(1)(b) of the Act, it is an anti doping rule violation under the -- 16 of 21 -- 17 ADP. He must have been aware of this. If not, given his professional status as an international tennis player, he should have been aware of it. In my view, this is a case that calls for strong general deterrence so that other elite athletes, who are considering similar activities, will think twice before doing so. [43] Paragraph 16A(2)(k) of the Crimes Act 1914 deals with what is an adequate punishment. My ultimate view is that, after balancing all factors for and against Mr Odesnik, that the appropriate punishment is a fine with a conviction recorded. [44] The next group of factors to consider are in paragraph 16A(2)(m), namely, “character, antecedents, age, means and physical or mental condition of the person”. Mr Odesnik is 24 years of age and had been playing professional tennis on the international circuit since about 2004. I was not told whether he is married or whether he has dependants although I suspect that if he had, that would have been mentioned. He has played tennis all his life and, unlike his parents and brother, has no other profession or skill. No criminal convictions are alleged in this case. It has been submitted on his behalf that he will definitely be banned from playing tennis under the ADP for at least one year up to two years and that this should be taken into account. On the other hand, the complainant submits that this is not a sure certainty because proceedings must be commenced and a procedure followed under the ADP. In either case, it appears to me that Mr Odesnik is certainly exposed to the sanctions in the ADP and, to an extent, this is a matter to be taken into account in sentencing Mr Odesnik. In my view, even accepting that he will suffer the ADP sanctions, this does not convince me to exercise the section 19B discretion after balancing all considerations. [45] After considering the factors outlined above, in terms of section 19B(1)(b) of the Crimes Act 1914 I am not of the opinion that it is inexpedient to inflict any punishment or only a nominal punishment on Mr Odesnik. Nor am I of the opinion that he be released on probation. I decline to exercise the discretion under section 19B of the Crimes Act 1914. [46] The question remains as to what is an appropriate sentence in this case. The complainant submits a fine in the range of $7,000 to $12,000 and relies on a schedule of comparative -- 17 of 21 -- 18 sentences imposed by Queensland courts on other occasions23. It was submitted for the complainant that this case is more serious than the cases in the schedule primarily because Mr Odesnik is a professional international tennis player who came to Australia to compete in two international tennis tournaments and the offending vials were in his possession without approval. [47] On the other hand it was submitted for Mr Odesnik that the fine should be in the order of no more than $3,000 based on a 2009 decision of a Magistrate in New South Wales in respect of actor, Sylvester Stallone who was fined $2,975 and ordered to pay $8,200 costs for importation of a Human Growth Hormone and another substance which he tried to conceal. The judgement or transcript of the sentence in that case was not provided. Reliance was placed on print media reports parts of which were referred to from the bar table during submissions. The level of fine in that case seems very low compared with the range of penalties in the comparative schedule imposed by courts in Queensland. In considering decisions from other jurisdictions the complainant referred to the New South Wales Court of Appeal decision of R. v. Watene (1988) 94 FLR 234 at 236 per Roden J.24: There was a reference to a matter in Victoria, where, in its special circumstances, and no doubt in accordance with general sentencing patterns in that State, a sentence of eight years‟ imprisonment was accompanied by a minimum term of six years. Whilst it is, no doubt, a desirable goal to achieve uniformity of sentencing patterns in all States, particularly with regard to federal offences, it is very difficult for this Court in my view to have regard to what is done elsewhere, when a clear pattern in New South Wales emerges. …. [48] I note however, that those comments were not adopted by another member of the court, Carruthers J. who at 237 was of a contrary opinion to the effect that full weight should be given to the Victorian Court of Criminal Appeal decision particularly for commonwealth offences. [49] I think this issue can be resolved in this way. In that case, the New South Wales Court of Appeal probably had the benefit of the full judgement of the Victorian Criminal Court of Appeal. I do not have the benefit of the transcript or reasons for judgement in the Sylvester Stallone matter to understand the full basis for that decision. Therefore, in my view it would be dangerous for me to place much reliance on the outcome of the Sylvester Stallone case particularly where there 23 Exhibit 11; 24 Constituted by Roden, Carruthers & Mathews JJ.; -- 18 of 21 -- 19 emerges in the schedule of comparatives in exhibit 11 a reasonable pattern of sentencing decisions in Queensland courts. I will therefore be guided by the range of fines in the schedule. [50] In Mr Odesnik’s case, there is one importation of eight 6mg vials of Human Growth Hormone Serostim to be administered by way of subcutaneous injection25. The cases in the schedule include cases where there have been multiple importations of various prohibited substances in a variety of circumstances. For example, in Groves there were five importations of steroids for personal use for an injury. On 20 November 2008 he was fined $7,500 and conviction recorded. In Milne, there were 4 importations through the post consisting of 55 sachets of prohibited substances as well as 25 bottles of Ephedrine. He too was said to be recovering from an injury. On 16 September 2008 he was fined $7,500 and conviction recorded. Other cases involved the importation of tablets such as Dwyer in which a fine of $10,000 was imposed for 456 tablets. In Brauner, on 11 March 2008 a fine of $6,000 was imposed for importation of 440 Diazepam tablets over three occasions. [51] In Austin, on 24 January 2008 a fine of $6,000 was imposed for importation of Human Growth Hormone by post on six occasions. A section 19B submission was rejected. The court accepted he had a medical condition and that a doctor had prescribed the substance in Australia for that condition. Due to the high cost of the Human Growth Hormone in Australia, he imported it himself at a much lower cost. [52] Also relevant in this case is Draper, where a fine of $6,000 was imposed on 24 January 2008 for importation of 20 vials of Human Growth Hormone which the court accepted was prescribed by a doctor for his depression. He too said he imported the substance from overseas because of the high cost in Australia. Draper was the sole bread winner for his wife and child. [53] There is one case in the schedule, Collins, where the section 19B discretion was exercised on 26 March 2009. She had imported 2,210 tablets (sedatives) over 11 separate occasions by ordering them over the internet. Collins had been a police officer on stress leave and was being discharged from the service on medical grounds. Medical reports 25 Exhibit 1 – photo of box of the 7 vials stating, inter alia, “For subcutaneous injection”; -- 19 of 21 -- 20 were tendered in that case to support her contention that she suffered from a medical condition. Further, she had two children aged 3 and 11 years one of whom had attempted suicide. [54] It is not intended to refer to each and every case in the schedule suffice it to say that the fines range from $4,000 to $10,000. Acknowledging this to be a somewhat special case, I do not think that the range of fine extends to $12,000 as the complainant submits. [55] The cases in the schedule range in the number, quantity and type of prohibited import as well as the number of acts of importation some of which were by post. In Mr Odesnik’s case, he imported eight 6mg vials of Serostim in one act of importation whereas in other cases in the schedule the quantity of substance and the number of acts of importation are greater. At first blush one may consider Mr Odesnik’s importation to be less serious than the other cases because of the quantity of substance in only one act of importation. In fact this was submitted on his behalf. On the other hand the complainant submits that Mr Odesnik is a professional international tennis player who must have known of the sensitivities in the anti doping violation rules at least. This places him in a different category to the other cases. The issue of anti doping violation rules is part and parcel of his job as a professional tennis player. It was submitted for Mr Odesnik that in Collins, she was a police officer who ought to have known better. She was sentenced on the basis of section 19B. In Collins the court accepted that she had a medical condition the existence of which was supported by medical reports tendered to the court and also supported by an ongoing Workers Compensation claim. That is not the case for Mr Odesnik. I do not accept that Mr Odesnik falls within the same category as Collins. The topic of anti doping rule violations would be inextricably connected with his role as a professional tennis player. [56] In my view, the appropriate penalty for Mr Odesnik is a fine of $8,000 with a conviction recorded. This strikes a balance between the number of vials imported in one act of importation on the one hand and the fact that he is a professional international tennis player who would be aware of sensitivities about anti doping violation rules on the other. Further, he was not co- operative with customs officers at first and sought to explain it by saying he had a prescription from a doctor for a “career ending injury” which was later found to be incorrect. [57] The complainant seeks costs in the amount of $1,142.80. This is not in contention. -- 20 of 21 -- 21 [58] Therefore, I order as follows: Mr Odesnik is convicted and fined $8,000, six months to pay in default 140 days imprisonment. Mr Odesnik to pay the complainant’s costs fixed at $1,142.80, six months to pay in default 18 days imprisonment. A conviction is recorded. -- 21 of 21 --