New South Wales Supreme Court CITATION : Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 247 HEARING DATE(S) : 17, 18, 19, 24 March 2003 JUDGMENT DATE : 15 April 2003 JUDGMENT OF : Simpson J DECISION : Count 1 - fine $3,000; Count 3 - fine $2,000 CATCHWORDS : offences against Orders made pursuant to Stock Medicines Act 1989 - anabolic steroids - supply - use and record keeping - Crimes Act 1900 - Part 1A - application of criminal law extended beyond the territorial limits of NSW - determination of penalty - first prosecution under relatively new legislation - credit for pleas of guilty - costs Stock Medicines Act 1989 s46 Order No 1 of 1998 LEGISLATION CITED : Crimes Act 1900 Part 1A Supreme Court (Summary Jurisdiction) Act 1967 Veterinary Surgeons Act 1986 PARTIES : Director General NSW Department of Agriculture - Prosecutor Sven Arne Temmingh - Defendant FILE NUMBER(S) : SC 10470/02 COUNSEL : Mr MG O'Brien - Prosecutor Ms E Fullerton SC - Defendant SOLICITORS : IV Knight - Prosecutor Peter Ash & Associates - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 15 April 2003 10470/02 Director General NSW Department of Agriculture v Sven Arne Temmingh JUDGMENT 1 Her Honour: By summons dated 20 February 2002, the prosecutor, the Director General of the NSW Department of Agriculture, charged the defendant, Sven Arne Temmingh, with three offences against Orders made pursuant to the Stock Medicines Act 1989. On 18 March 2003, through his solicitor, Mr Ash, the defendant entered a plea of guilty to each of the first and third charges. The prosecutor accepted the two pleas of guilty in full satisfaction of the summons. 2 By s46 of the Stock Medicines Act, the Director General of the Department of Agriculture is empowered to make Orders concerning the supply or use of stock medicines. On 9 July 1998 the Director General made an Order, numbered 1998/1, concerning the supply and use of anabolic steroids. The Order was published in the NSW Government Gazette on 17 July 1998. 3 Clause 3 of Order 1998/1 is relevantly in the following terms: "3. Supply, use and record keeping The following prohibitions and regulations apply to injectable steroids: A. Subject to clauses 3B(ii) and 6, a veterinary surgeon must not prescribe the supply of, or supply, an injectable steroid to any person." By subclause 3C a veterinary surgeon is required to maintain a legible record, containing specified information in respect of any injectable steroids which are in his/her possession at the date of the commencement of the Order, or which subsequently come into his/her possession. The information required to be recorded includes details of the use and disposal of the steroids. 4 Exceptions to the prohibition on the supply of steroids are contained in the two clauses mentioned in subclause A. Pursuant to clause 3B(ii) a veterinary surgeon may permit a person in his/her immediate presence to inject stock with an injectable steroid. This exception allows a veterinary surgeon to supply a steroid to an assistant to undertake the actual administration of the drug to the stock. 5 By clause 6 a veterinary surgeon may dispose of an unwanted supply of injectable steroids by supplying it to another veterinary surgeon or returning it to the supplier, or otherwise dispose of it in a manner approved in writing by the relevant authorities. 6 Clause 8 of the Order is, relevantly, in the following terms: " 8. General Prohibition and Regulations in Respect of Record-keeping In this clause, "record" means any record maintained pursuant to this Order. A. … B. … C. A person must not make a false or misleading entry in a record." 7 The two counts to which the defendant pleaded guilty charged him with, respectively, contraventions of Clause 3A and Clause 8C, that is, with wilfully supplying injectable steroids, and wilfully making a false entry in a record. 8 The defendant having pleaded guilty to the two charges, an agreed statement of facts was put before me. However, in relation to one significant disputed issue of fact, oral evidence was called both by the prosecution and by the defence. In addition, the defendant gave evidence of his personal circumstances, and tendered affidavit evidence as to character. 9 The relevant facts and circumstances are as follows. 10 The defendant is registered and practises in NSW as a veterinary surgeon. From about 1996 he was engaged by a company, Domeland Pty Ltd, which operated a large horse stud in the Hunter Valley of NSW, and which, in late 1997 or early 1998, began exporting horses to China. The Chinese operation was known as "Key Hinge Pty Ltd". A trainer, Mr Kevin Connolly, who had managed the Domeland business, took up residence in China in early 2000, and assumed the management of that business. The defendant continued to be employed by Domeland. Domeland maintained records in relation to the horses. There were two groups of horses: those intended to remain in Australia, and those purchased for export to China. Each horse was given a number. The "China horses" had numbers beginning with the letter "K" 11 The prosecutor alleged that on three separate occasions the defendant unlawfully supplied steroids; on 17 September 1999, on 4 November 1999, and in December 1999. According to the statement of facts, the first transaction occurred on 17 September 1999 on which date the defendant directed a veterinary wholesaler, Cenvet Pty Ltd, to send two parcels of steroids to China for use by Key Hinge. A total of 500 bottles, containing 17 litres of steroids, was involved in this transaction. 12 Again taking the information from the agreed statement of facts, the second incident occurred in October 1999. On this occasion the defendant purchased from Cenvet 17.5 litres of steroids, which he himself packaged and posted to Key Hinge's office in Hong Kong. The third incident occurred in December 1999 when the defendant travelled to China, carrying with him 16 litres of steroids which he there supplied to others. 13 The value of the drugs was, in total, $35,404. 14 It was not easy to follow the evidence given by the defendant. His account of the manner in which he obtained and disposed of the drugs varied in some respects, only one of which was of any significance, from the statement of facts. He said that Mr Connolly telephoned him early in September 1999, requiring him to travel to China for the purpose of treating the horses that had already been exported. On 14 September he received from Mr Connolly a facsimile transmission containing a list of drugs he required. Only one of those was an anabolic steroid. No quantity was specified. But the defendant added that Mr Connolly subsequently telephoned him, asking him to send "a large quantity" of anabolic steroids to China. He said that he picked up the drugs requested, including ten bottles of a steroid called Stanazol (as requested by Mr Connolly), and other items and medications, which he took to China, on 19 September. 15 On his arrival in China, he used some of the steroids he had taken with him to treat the horses, which he observed to be in a poor condition. He said that he also used some of the steroids that had been sent to China by Cenvet. 16 On his return to Australia he was asked again by Mr Connolly to send more steroids, and on this occasion he posted the parcel himself. 17 Both parties agree, therefore, that, on one occasion, the defendant personally posted steroids to China, on another he caused steroids to be posted by Cenvet, and that on one occasion he transported steroids himself. The two principal areas of divergence between the prosecution account and the defendant's account concern the sequence in which the supplies occurred, and the involvement of Mr Connolly. The former is of no significance. Nor, in my opinion, and for reasons which I will give shortly, is the latter. 18 None of the persons to whom the two parcels sent by post were directed came within the exceptions to clause 3A contained in clause 3B(ii) or clause 8. 19 By his plea of guilty the defendant accepted that the supply of the steroids by post constituted the offence charged in the first count of the summons. He did not, as will be seen, accept that any offence against a law of NSW was committed by his own delivery of the steroids. It is of some significance that, although the prosecutor relies upon three instances of the supply of steroids, the defendant is charged with only one such offence. No issue was taken with this approach. 20 The defendant maintained a treatment book purporting to disclose records of his treatment with injectable steroids of certain horses at the Domeland stud. These records showed the treatment of horses identified by numbers. 21 Over a period spanning June to September 1999 the defendant's treatment book records the administration of steroid treatments, on at least 106 occasions, to horses identified by numbers which did not conform to any horses present at the Domeland stud at the time stated in the treatment book. The records applicable to the period 1 January to 6 May 1999 are false in their entirety. There are 95 false entries during this period. There were, in fact, numerous instances of the making of false entries in the record which I do not propose here to detail. It is clear that the defendant's practice in the maintenance of records was seriously deficient and consistently resulted in false entries. 22 The defendant gave evidence about his steroid register. He said that prior to November 1998 he had not maintained any steroid register. He was visited in November 1998 by Mr Lee Cook, a veterinary surgeon attached to the Agricultural and Veterinary Chemicals Section of the Department of Agriculture. Mr Cook was accompanied by Mr Ian Anderson, an inspector with the Pharmaceutical Services Branch of the NSW Department of Health. The visit was part of a programme of inspection instituted by officers of the Departments of Health and Agriculture, intended to draw the attention of veterinarians to the requirements of Order 1998/1. Priority was given to visiting veterinarians who had been identified as having a greater than average use of steroids. The defendant was one of these. 23 According to the statement of facts, the defendant undertook to put his records in order and to comply with his statutory obligations. On 16 December Mr Cook wrote a letter to the defendant confirming the details of the visit and the requirements of the Order. 24 On 1 June 1999 Mr Anderson inspected the Domeland stud. He found no register of veterinary drugs used by the defendant. He therefore wrote to the defendant reminding him of his obligation. The defendant responded on 12 June, advising that he had a steroids register at Domeland which could be inspected by arrangement. 25 In his evidence the defendant said that in November 1998 Messrs Cook and Anderson visited him, unannounced, at his home, wishing to question him about his use of anabolic steroids. They informed him of his obligation to maintain a steroids register. He said that he subsequently purchased a book to use as a steroid register, and proceeded to "recreate" his history of steroid use commencing July 1998. He did this by obtaining from Cenvet information about his steroid purchases, and, in the absence of any documentation of the use he had made of those steroids, he inserted into the book his own estimate of his stock on hand. He said that he had his own daily horse records, and from these he attempted a recreation of his steroid use. However, the defendant said that, although with sufficient time and effort, it would have been possible to have recreated a precise record of the steroids administered to the Domeland horses, he lacked the patience to undertake that exercise, and that the record he did create contained some (although relatively few) errors. 26 He had not maintained any treatment records for the Key Hinge horses, and had no secondary documentation to use for this purpose. He therefore "fabricated" (the word used by the defendant) the records in the steroids register in relation to those horses. He frankly said that, since the horses were to be exported, he did not think the absence of records mattered, and that maintaining a steroids register was a waste of time. Even after the visit of Messrs Cook and Anderson in November 1998, the defendant failed to maintain any record of steroid usage in relation to the Key Hinge horses. 27 By s60 of the Stock Medicines Act, proceedings for an offence against that Act may be dealt with summarily before a Local Court constituted by a magistrate sitting alone, or before this court in its summary jurisdiction. By s60(3) and s46(6) the maximum penalty which may be imposed when proceedings are brought in this court is a fine equivalent to 200 penalty units. A "penalty unit" is currently $110. The maximum penalty applicable to each offence, therefore, is a fine of $22,000. 28 I mentioned earlier a disputed issue of fact. I will deal with this briefly because, it seems to me, it arose by reason of a misunderstanding between the parties' legal representatives. Mr Connolly had been the manager of Domeland's blood stock operation during the defendant's employment. He gave evidence by video-link from Beijing. The essential dispute of fact concerned the role (if any) played by Mr Connolly in the first offence in the summons, the offence of supply. The defendant claimed that all purchases of steroids for the Chinese operation were made at the behest of Mr Connolly. Mr Connolly denied that this was so. The evidence given by the defendant was in direct collision with that given by Mr Connolly. It is not possible with any confidence to make a finding of fact in this regard. Nor, in my view, is it necessary. Even if the evidence established, as the defendant claims, that Mr Connolly instigated that offence, it seems to me to be quite irrelevant to the defendant's culpability. The defendant, as a veterinary surgeon, had the primary obligation of compliance with the Order. Acting on the instructions of a superior, particularly a superior who did not have veterinary qualifications, could provide no mitigation for him. 29 I therefore do not propose to take time attempting to resolve this issue. Further, as I have noted, it appears that the issue arose as a result of a misunderstanding between legal representatives. So far as I could ascertain, it arose because the defendant's legal representatives believed that it was the intention of the prosecution to propound "an aggravating feature", which could be defused by this evidence. What was perceived as the "aggravating feature" was a suggestion that the defendant had participated in the delivery of drugs to China for personal gain, the suggestion apparently being that the drugs were not intended for use on Key Hinge horses, but for supply in the Chinese market. There is no evidence on which I could make such a finding of fact, and the prosecution has not pressed for such a finding. Counsel for the prosecutor disclaimed any intention to rely on any "aggravating feature". 30 The only evidence of personal gain came from the defendant himself. He said that, in an earlier discussion with Mr Connolly concerning treatment to be given to the horses intended to be sent to China, Mr Connolly had said that the owner of the stud had offered him a bonus of $100 for each horse successfully taken to China and that Mr Connolly offered to share this bonus with the defendant. 31 In the same passage in his evidence, the defendant said that Mr Connolly had told him he would have to be very careful when using the steroids on the horses, and that the horses destined for China would have to be kept separate from the Domeland horses. He said that Mr Connolly told him that he would have to pay for the steroids himself and receive reimbursement in cash. 32 I find this a rather peculiar piece of evidence, suggestive of something more sinister than the account given otherwise by the defendant. It is not, however, material upon which I could make an adverse finding of fact concerning the defendant's participation in the events the subject of the charge of supply. The defendant's evidence was that his purpose in sending or taking the steroids to China was for treatment of the Key Hinge horses, and that is in fact the use to which they were put. He personally used some quantities of the drug in this way. There is nothing to contradict this account and I propose to sentence accordingly. 33 Another issue, raised in written submissions prepared on behalf of the defendant, needs to be addressed. It is necessary to backtrack a little. The defendant pleaded guilty to a single charge of supplying steroids. The particularisation of the events giving rise to the charge, involved, as I have set out, three separate incidents. Two of these involved supply by post, by or at the direction of the defendant. The third involved the supply by the defendant himself, by transporting the steroids to China and there delivering them. On behalf of the defendant it was submitted that, on those facts, the whole of that last-mentioned transaction (supply) took place outside NSW and was not amenable to the law of NSW. The purchase and possession of the steroids in NSW by the defendant (as a veterinary surgeon) was not unlawful. The offence against clause 3A is not committed until the veterinary surgeon either prescribes for supply, or supplies, an injectable steroid to another person. The supply of the drugs taken by the defendant to China took place entirely in that country. Order 3A does not extend to creating an offence of conduct which wholly takes place beyond the territorial boundaries of NSW. That transaction should therefore be disregarded for the purpose of sentencing. 34 Counsel did not refer to the provisions of Part 1A of the Crimes Act 1900, and I have heard no argument as to the effect of that legislation. However, it seems to me that there is substance in the defendant's submission. 35 By s10A(2) of the Crimes Act, the application of the criminal law of NSW is extended beyond the territorial limits of NSW: "… if there is the nexus required by this Part between the State and the offence." 36 By s10C(2), a geographical nexus exists between NSW and an offence where, if the offence is committed wholly outside NSW, the offence "has an effect" in NSW. By s10B(2), the place in which an offence is committed is the place in which the physical elements of the offence occur. For the purposes of the present case, the physical elements of the offence (in relation to the steroids taken by the defendant to China) occurred on any occasion when the defendant supplied steroids to another person, not being a veterinarian, or his assistant. That was in China. 37 By s10B(3), the place in which an offence has an effect includes any place whose peace, order or good government is threatened by the offence, and any place in which the offence would have an effect, or would cause such a threat, if carried out. 38 By s10D(2), Part 1A applies to an offence committed wholly outside NSW only if it is an offence which is also an offence in that place (s10D(2)(a)) or, if it is not an offence in the place where it is committed, the trier of fact is satisfied that the offence constitutes: "(b)… such a threat to the peace, order or good government of [NSW] that the offence warrants criminal punishment in [NSW]." 39 I accept that the act of supplying the drug on the occasion the defendant himself carried it to China, was committed wholly outside NSW. 40 The construction of s10B(3) is not easy. However, I am not satisfied that, where the supply of steroids takes place in another country, the offence has an effect in NSW. Nor am I (within the meaning of s10D(2)(b)) satisfied that the supply of steroids in another country constitutes such a threat to the peace, order or good government of NSW that it warrants criminal punishment in this state. Certainly, there was no evidence to that effect. For the purposes of s10D(2)(a), there is no evidence that the supply of steroids was an offence in China. 41 Accordingly, I accept that the third incident upon which the Crown relied should be excluded from consideration for sentencing purposes. I propose to sentence on the basis that the defendant twice contravened clause 3A of Order 1998/1, on the two occasions on which he posted, or caused to be posted, steroids. 42 On the subjective side, the defendant gave some evidence concerning his background and personal circumstances. He graduated in Veterinary Science in 1977 and thereafter worked in England and the United States before returning to Australia in 1996 and taking up his employment with Domeland. On 14 December 1999 his employment was terminated by Mr Connolly. Again, there are differing versions of how and why this occurred. Mr Connolly said it was because he discovered that the defendant had been purchasing anabolic steroids on Domeland's account. The defendant said that it was because Mr Connolly and his employer, Mr Cheng, feared that the Chinese authorities would discover the use of steroids and resolved to have the defendant take the responsibility. 43 The defendant also said that he had not been paid three months' salary owing to him, that he had expended his own funds financing a trip to China at Mr Connolly's request, and had purchased with his own funds the steroids on behalf of Domeland. He had not been reimbursed for any of this expenditure. He said that he is out of pocket by about thirty or forty thousand dollars. 44 The defendant is now self-employed, in partnership as the Director of an organisation called the Sydney Racing Laboratory, which has establishments in Sydney, Melbourne and on the Gold Coast. This is a veterinary pathology business, and is said to be highly successful. There was no other evidence as to the defendant's present financial position, or his capacity to pay a fine. He continues to practise as a veterinary surgeon in what he describes as a limited capacity because of the demands upon his time made by his work in the laboratories. He has used steroids in his work since December 1999, and there is no suggestion that this was other than lawful, and he claims to have maintained appropriate records in that regard. 45 Character evidence in affidavit form was put before me. This consisted of evidence from a Mr Gerald Rose, a veterinary surgeon who has known the defendant for twenty-five years and considers himself a close personal friend; the defendant's partner in the laboratory business, Craig Carmichael, a scientific analyst who first met the defendant when he took up employment, in fact replacing Mr Carmichael, at Domeland; and Mr Colin McDowell, a harness racing owner who has also known the defendant for twenty-five years and who has retained the defendant as a veterinarian when he has been in Australia. 46 These three gentlemen speak with one voice, attesting to the high character and honesty of the defendant and his devotion to his work. Both Mr Rose and Mr McDowell explicitly acknowledged that the defendant has poor record keeping skills and little interest in that aspect of his work. 47 The determination of a penalty is difficult. I was told that this is the first prosecution brought under what is still relatively new legislation and there is, therefore, no precedent for guidance. The quantities of steroids involved were large, even excluding those which the defendant personally transported to China. The absence of suitable records is also serious, particularly as the defendant had been advised by Messrs Anderson and Cook of the legislative requirements. Nothing was put before me to explain the mischief intended to be cured by the introduction of Order 1998/1, but it is not difficult to conclude that what was intended was to strike a balance between the legitimate use of steroids by veterinarians and the control of the dissemination of the drug into the community. Strict compliance with the obligations so imposed is necessary in the public interest. 48 The defendant was frank when interviewed by the Departmental officers. He acknowledged that Cenvet had sent steroids to China on his behalf and that he had himself taken some, some of which he said he left with an identified person who was not a veterinary surgeon. He was also frank, both in his interviews with Messrs Cook and Anderson, as he was in his evidence, with respect to his defective record keeping. 49 The defendant is entitled to credit for his pleas of guilty. Even this matter was not entirely uncontroversial, it being suggested on behalf of the prosecutor that his plea had come at a very late stage. In response to that, the defendant's legal representative stated that negotiations in relation to a plea of guilty had commenced some time earlier. This was not disputed. I propose to discount the penalties I impose by approximately 20% to take account of the pleas of guilty. 50 Bearing in mind that the defendant is to be sentenced only in relation to the two instances of supplying the steroids, and having regard to the objective and subjective circumstances I have recounted, I have concluded that the appropriate penalty in relation to the first offence, the offence against clause 3A, is a fine of $3,000. In relation to the offence of making false or misleading entries in his records, I have come to the view that the appropriate penalty is a fine of $2,000. 51 Counsel for the prosecutor raised two additional matters. He sought an order, pursuant to the Supreme Court (Summary Jurisdiction) Act 1967, that the defendant pay the costs of the prosecution. S14 of that Act empowers a court which convicts any person of an offence punishable in the summary jurisdiction of the court to pay such costs as to the court seem just and reasonable. By sub-s(2) the court is required to specify, in the conviction, the amount so ordered to be paid. 52 I am satisfied that an order should be made in this case. However, nothing was put before me by which I could make any assessment of the amount of costs which is "just and reasonable" and should be specified in the conviction. 53 In order to enable the prosecutor to place appropriate material before me, should he wish to do so, I will defer any further proceedings on the conclusions I have reached. For this reason I will not proceed, at this stage, to conviction or sentence. 54 Finally, counsel for the prosecutor drew my attention to s26 of the Veterinary Surgeons Act 1986, which requires, where a person is convicted in NSW of an offence (other than a prescribed offence) and the court before which the person is convicted has reasonable grounds to believe that the person is a registered veterinary surgeon, the court to cause a certificate of conviction to be furnished to the Veterinary Surgeons Investigating Committee, constituted pursuant to s24 of the Veterinary Surgeons Act. I propose to direct the Chief Executive Officer of the court to prepare and furnish the necessary certificate of conviction. ********** Last Modified: 04/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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