R v Temmingh [2005] NSWCCA 261

New South Wales Court of Criminal Appeal

CITATION: R v Temmingh [2005] NSWCCA 261

HEARING DATE(S): 28/06/05

JUDGMENT DATE: 11 August 2005

JUDGMENT OF: Grove J at 1; Hoeben J at 2; Hall J at 31

DECISION: Crown appeal. Appeal allowed. Respondent resentenced.

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.

Customs Act 1901 (C'th) LEGISLATION CITED: Customs Prohibited Imports Regulations 1956 Stock Medicines Act 1989 (C'th)

CASES CITED: R v KM and Ors [2004] NSWCCA 65

Commonwealth Crown - Applicant PARTIES: Sven Arne Temmingh - Respondent

FILE NUMBER(S): CCA 928/2005

Mr RJ Bromwich - Applicant Crown COUNSEL: Mr M J King - Respondent

Commonwealth Director of Public Prosecutions - Applicant Crown SOLICITORS: Peter Ash & Associates - Respondent

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

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.