R v Yacoub [2006] VSCA 203

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 We joined in the orders made by the Court on 8th June 2006 for the reasons given by Eames, J.A.

2 I joined in the orders made by the Court on 8th June 2006 for the reasons given by Eames, J.A. at [3]-[19] and [30]-[42]. It is unnecessary for me to say anything about ground 2.[1]

3 The applicant sought leave to appeal against sentences imposed by a judge of the County Court on 14 June 2005 with respect to five counts to which he pleaded guilty, as follows:

On count 1, trafficking in a drug of dependence, namely testosterone, in a commercial quantity, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981, he was sentenced to 18 months' imprisonment. The maximum penalty for that offence was 25 years' imprisonment.

On count 2, trafficking in a drug of dependence, namely methandienone, contrary to s.71AC, he was sentenced to six months' imprisonment. The maximum penalty for that offence was 15 years' imprisonment.

On count 3, possession of a drug of dependence, namely boldenone, contrary to s.73, he was sentenced to three months' imprisonment (out of a maximum of 12 months' imprisonment).[2]

On count 4, possession of a drug of dependence, namely stanozol, contrary to s.73, he was sentenced to three months' imprisonment.[3]

On count 5, attempting to pervert the course of public justice, a common law offence, he was sentenced to two years' imprisonment. That offence carries a maximum of 25 years' imprisonment, by virtue of s.320 of the Crimes Act 1958.

4 The learned sentencing judge ordered that nine months of the sentence on count 1 be cumulative on the sentence imposed on count 5, producing a total effective sentence of two years and nine months' imprisonment. His Honour ordered that the applicant serve 22 months' imprisonment before being eligible for parole.

5 The application for leave to appeal was referred by a judge to a Court of five judges and on 8 June 2006 a court so constituted ordered that leave to appeal be granted, but that the appeal be dismissed. The Court advised at that time that the reasons for decision of its members would be published later. I now state my reasons for agreeing to the orders that were then made.

6 The circumstances of the offences were as follows.

7 On 14 April 2004 police officers conducted a surveillance operation against the applicant at his home address in Essendon. An Australia Post van attended the premises and delivered a large box. The applicant was arrested as he left his premises in his motor vehicle. Upon being searched police found in the front pocket of his trousers a plastic bag containing a number of tablets. In addition, they located in his motor vehicle an Express Post box in which there were a number of bottles which contained animal testosterone and hormone liquids. In addition, there were two bottles of boldebal-H, one bottle of mandrolin and one empty sustonal box. The police also found a plastic bag containing a quantity of pink tablets and another bag containing a quantity of white tablets.

8 Upon analysis of the seized items there were 7.7 kilograms of testosterone, to which count 1 relates. A quantity of 5 kilograms of testosterone, or greater, constitutes a commercial quantity of testosterone. Count 2 relates to the pink tablets, of which 2,141 were found, and which contained 252.2 grams of methandienone. Count 3 relates to boldenone, of which 30 grams was found, and count 4 related to stanazolol, of which 19.6 grams was found. When interviewed by police the applicant admitted that the testosterone had been purchased by him, for about $13,000, and he said that he expected to make $500 profit by trafficking that drug. He admitted trafficking the methandienone tablets but claimed the remaining steroids were for personal use only.

9 The circumstances of count 5 were as follows. On the day of his arrest the applicant enquired of Acting Det. Sgt. Richards as to what might be done to decrease the quantity of steroid products which would be alleged against him. On 17 May 2004 the applicant also asked Snr Const. Guerin what could be done to decrease the quantity of steroids alleged against him. In response to the latter enquiry a meeting was arranged between the applicant and Richards on 19 May 2004, at which time the applicant offered Richards $2,000 in return for police halting asset confiscation proceedings against the assets of the applicant. The applicant later increased the offer to $7,000, in return for the police not only reducing the quantity of drugs alleged against him but also halting the confiscation proceedings. At a later meeting, on 20 May, the applicant offered an additional $6,000 if the charges were entirely dropped. At that time the applicant handed an envelope containing $7,000 cash to Richards. The conversations had been recorded by police and the applicant was arrested.

10 The learned sentencing judge accepted that the steroids which were seized were for use by individuals, including the applicant himself, to assist in bodybuilding. His Honour concluded the it was not possible to estimate with precision the ultimate street value of the steroids which were being trafficked. His Honour found, however, that whilst the drugs cost $13,000 they might have been sold in smaller batches for a total return of up to $90,000. That finding was based on evidence provided by Dr Anthony Millgate, Scientific Advisor to the Australian Sports Drug Agency, in a letter dated 27 May 2005 which, without objection, was tendered by the prosecutor. Defence counsel conceded below that whilst the applicant had claimed to police (and maintained on the plea) that the profit he anticipated from his expenditure of $13,000 was a mere $500, the return could be as much as $90,000, were steroids of that quantity to have been sold in single vials.

11 Ground 1 of the grounds of appeal asserts that the judge failed to take into account sufficiently or at all the effect of restraining orders made with respect to the applicant's property pursuant to s.18 of the Confiscation Act 1997. Ground 2 of the grounds of appeal complains that the judge failed to sufficiently distinguish steroids from other drugs of dependence. Ground 3 complains that the sentencing judge erred in his assessment of the seriousness of the offending on count 5. Ground 4 asserts that the individual sentences, the total effective sentence, and the non-parole period, were manifestly excessive.

Ground 1

12 In the course of submissions on sentence the applicant's counsel said that the applicant had been served with restraining orders as to his property, which notified him that the offence under count 1 was an automatic forfeiture offence under the _Confiscation Ac_t 1997.[4] Subject to a successful application brought to exclude some or all of the property from the order, his plea of guilty meant that all of the assets of the applicant which had been the subject of a restraining order could be forfeited. Counsel submitted to the judge that after 25 years of hard work the applicant had accumulated assets worth in excess of $1 million, including two properties, owned jointly with his wife, and those properties were exposed to forfeiture. Counsel urged the judge to have regard to the fact that the offending had brought with it those massive consequences, unless, at a later time, the applicant convinced a judge that the full effect of the Confiscation Act should not apply.

13 The prosecutor responded to what he said had been defence counsel's reference "to the fact that property has been restrained and is subject to automatic forfeiture". He submitted that by virtue of s.5(2A)(e) of the Sentencing Act 1991 his Honour must not have regard "to any property forfeited under an automatic forfeiture or pecuniary penalty order" made under the Confiscation Act. He added:

"In other words, if property had been forfeited already under it, then your Honour could, if Your Honour was satisfied under (ab) that it was lawfully obtained, but those are matters that are still to be aired before the Court at some later time, and therefore Your Honour should not have regard to the fact that ..."

14 The prosecutor was then interrupted by his Honour saying that he did not understand that counsel had asked for the Confiscation Act to be taken into account, save by way of explanation for the applicant's reaction in seeking to bribe the police. The prosecutor said that counsel for the applicant had invited the judge to find that the property had been lawfully obtained, thus, so the prosecutor believed, counsel was laying a foundation for asking the judge to take the confiscation into account.

15 Section 5(2A) of the Sentencing Act 1991 relevantly provides that:

"(2A) In sentencing an offender a court-----

---

(ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property--

(i) that was used in, or in connection with, the commission of the offence;

(ii) that was intended to be used in, or in connection with, the commission of the offence;

(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

---

(e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act."

16 It may well be that the prosecutor was drawing a distinction between taking forfeiture into account - where forfeiture had already occurred - and the situation where, although the assets were restrained, no forfeiture had yet occurred. Mr Coghlan submitted that that was what the prosecutor intended, and that he was correct in what he told the judge. Even so, the statement made by the prosecutor implied that the fact that the assets were at risk of forfeiture was not of any relevance, at all, in sentencing, and it seems clear that his Honour understood the submission in that way.

17 It remains the fact, however, that the prosecutor did not advise the judge that the mere fact that the property was at risk of forfeiture was relevant to sentencing, as

indeed it was: see R. v. Do;[5] DPP v. Phillips[6] and R. v. Roy Le and Thang Nguyen.[7] Indeed, although the judge had referred to R. v. Do during submissions - in which that proposition was stated - he did so only as to the discrete question of the appropriateness of weighing the relative seriousness of trafficking in different drugs. He was not referred to the discussion by Buchanan, J.A. in that case as to the relevance and appropriateness of having regard to the potential forfeiture of assets. Thus, the extent of the risk of forfeiture of some or all of the restrained assets and, consequently, the weight that ought be given to the risk of forfeiture were neither addressed in submissions to the judge by either counsel, nor by the judge during submissions, or in his sentencing remarks.

18 Indeed, the prosecutor said that he had made his statement as to the effect of s.5(2A) in order to clarify that defence counsel was not contending that the judge might have regard to that factor, at all, when sentencing on count 1. I presume that it was in response to an acknowledgment, then made by defence counsel, that the prosecutor then said that "We all seem to be ad idem about that". Thus, defence counsel did not himself expressly contend that his Honour was entitled to have regard to the risk of forfeiture, when considering sentence. It is not surprising, therefore, that in his sentencing remarks the judge did not have any regard to the risk of forfeiture, save that he accepted that the applicant's discovery that he might lose his assets under the Confiscation Act provided the context in which he made his bribery attempts. The learned judge otherwise made no reference to the potential forfeiture when addressing sentence.

19 Notwithstanding the fact that defence counsel did not refer his Honour to relevant authority on this question, and also failed to explicitly submit that the risk of forfeiture should be taken into account for sentence (indeed, he appears to have expressly disavowed any such submission), I have concluded that the judge sentenced under a misapprehension as to the relevant law and was in error in failing to have regard to what, in the context of this case, was plainly a relevant factor in sentencing. Given the relatively small profits which the applicant contended he stood to gain by the trafficking in steroids, even limited forfeiture of his own interest in some of the restrained property might well be regarded as a significant additional penalty. That is not to say that when weighed together with all other relevant sentencing considerations the sentence imposed by his Honour should necessarily have been less than the 18 month's imprisonment which he imposed. For reasons that I will later develop, although the sentencing discretion was re-opened by virtue of the error exposed under this ground, I did not consider that it was appropriate to impose a lesser sentence on count 1.

Ground 2

20 Under this ground the applicant complained that in fixing sentence under each of counts 1, 2, 3 and 4 the learned judge failed to sufficiently distinguish steroids from other drugs of dependence. As earlier noted, count 1 was an offence under s.71AA, relating to trafficking in a commercial quantity of a steroid, count 2 was an offence concerning trafficking in a steroid contrary to s.71AC, and counts 3 and 4 were offences under s.73, relating to possession for personal use of two different steroids.[8]

21 Defence counsel submitted to his Honour that trafficking in steroids should not be equated with "trafficking in hard drugs of addiction, such as heroin or cocaine". His Honour stated, frankly, that he had only the limited knowledge of a well informed layman concerning steroids. He referred to the letter from Dr Millgate, as to the use and effect of steroids. His Honour noted that Dr Millgate said that the reported side effects of steroids included liver damage, benign and malignant tumours, decreased fertility, increased sexual desire and increased frequency of erectile dysfunction, and atrophy of the testes, in males. Furthermore, his Honour noted the evidence that the administration of anabolic steroids can affect behaviour by increasing aggression levels. There are also associated risks with the use of injecting material, such as the transmission of HIV and hepatitis. In females, steroid use can lead to growth retardation of the female foetus, in a pregnant female, and hypertrophy of the clitoris. Both males and females can experience increased acne, hair loss, withdrawal of the frontal hairline, male baldness, voice effects, increased facial hair growth, male muscularity and coarsening of the skin. Another problem associated with the use of anabolic steroids is the increase of multiple drug abuse. Many users taking anabolic steroids will try many other drugs to attempt to counterbalance the adverse side effects of the anabolic steroids.

22 His Honour held that there was no evidence before him to suggest that the drugs were addictive, nor that they had any psychological or social effects other than that which he had stated. He said there was no material before him to implicate steroid use in general criminal behaviour, such as was often associated with "hard drugs of dependence".

23 His Honour noted that he had not been referred to any cases from superior courts in which trafficking in steroids had been in issue. His Honour noted R. v. Do,[9] and accepted that the court in that case had disapproved the practice of sentencing judges seeking to place drugs within a hierarchy of heavy, medium or soft drugs. His Honour held that on the material before him he was prepared to accept that whilst steroids had a deleterious effect on individuals their impact was not as severe as the use of hard drugs such as heroin, cocaine and methamphetamines. His Honour continued:

"Nevertheless, Parliament has clearly deemed it appropriate to proscribe trafficking in steroids as harmful to society and set a maximum penalty of 25 years' imprisonment for trafficking in a commercial quantity of such drugs. As stated, I accept, however, on the material before me, that this trafficking in steroids is not as severe as trafficking in hard drugs such as heroin, because there is not the normal or accepted snowball effect of criminal behaviour, such as addiction to hard drugs, crimes of violence on soft targets, and offences of dishonesty. I am, in the circumstances, prepared to sensibly moderate the sentences on counts 1 and 2 because the drug of dependence is steroids."

24 Mr Priest submitted that the severity of the sentence of 18 months' imprisonment that was imposed on count 1 demonstrated that although the judge had not treated steroids as falling within the category of hard drugs such as heroin, cocaine and methamphetamine, he must have regarded it as a drug of equivalent seriousness to that of cannabis. Such a conclusion, Mr Priest submitted, was not open to be drawn, in the absence of evidence. In their written submission counsel for the applicant submitted that it was the experience of the courts that steroids do not appear to be attended by the same social evils as cannabis.

25 In R. v. Pidoto & O'Dea,[10] two appeals which were heard together with the present appeal, the Court held that the trafficking offences under s.71, 71AA and 71AC all had the common element that the drug in question was a drug of dependence, and that in structuring the offence provisions Parliament adopted a hierarchy which was not based on the relative harmfulness of different drugs of dependence but on the quantity of the drug trafficked. The Court concluded that in sentencing an offender for an offence under s.71AA (and it would be equally so with respect to an offence under s.71AC) there was no scope for the sentencing judge to consider the harmfulness of the drug which is the subject of the charge, that being an irrelevant consideration.[11]

26 In light of the conclusion of the Court in Pidoto & O'Dea it is apparent that in his sentencing remarks, the learned sentencing judge fell into error by having regard to the harmfulness of steroids. The complaint made under appeal ground 2 in the present case, however, was not that the judge had regard, at all, to the relative harmfulness of steroids but that in doing so he treated the drug as more harmful than it was, or, at least, had acted without evidence as to the social, physical and psychological harmfulness of the drug.

27 Although counsel presented the appeal under ground 2 on what has now been shown by the decision in Pidoto & O'Dea to be an incorrect assumption - namely, that a comparison of harmfulness of different drugs was an appropriate sentencing approach - the ground could not have succeeded even if the assumption had been correct. In my view, although his Honour inappropriately had regard to what he considered to be the harmfulness of steroids, he did not rank the seriousness of steroid trafficking by reference to the relative seriousness of cannabis trafficking, which was the contention advanced in argument under this ground. That argument was founded on a general proposition that a sentence of 18 month's imprisonment was of the order that courts might be expected to impose for trafficking in a commercial quantity of cannabis. However, in my opinion, such an offence, especially for a person with prior convictions - including a drug conviction (as was the case here) - would generally result in a more substantial head sentence than 18 months' imprisonment. In any event, even if there have been instances where sentences in that order had been imposed for commercial level cannabis trafficking, it does not follow that a similar sentence was inappropriate or outside the range for the offence on count 1. A similar observation may be made with respect to the sentence of six month's imprisonment for trafficking, simpliciter, under count 2, had the drug been cannabis.

28 In the result, although his Honour did make an assessment of the harmfulness of steroids that assessment could only have been to the benefit of the applicant. As the Court has made clear in Pidoto & O'Dea,[12] it is the act of trafficking for profit that attracts the penalty under both s.71AA and s.71AC, and it is the amount of profit which the trafficker stood to make, not the degree of harm which the trafficking was likely to cause, that determined the seriousness of any offence under the sections. All things being equal, the applicant's offences under counts 1 and 2 were no less serious because they involved trafficking in steroids, than they would have been had the drug of dependence been cannabis. On a fair reading of his sentencing remarks, the judge responded favourably to the contentions of defence counsel as to the seriousness with which he would view the trafficking in steroids and, as earlier discussed, the fact that the drugs were steroids, and not "harder" drugs caused a reduction in his sentences, not an increase.

29 Thus, although the approach to sentencing adopted by the judge was not consistent with the principles discussed in Pidoto & O'Dea his erroneous approach did not disadvantage the applicant, and the complaint made in the terms of ground 2, predicated as it is on an erroneous understanding of the appropriate sentencing approach which ought to have been adopted, was without merit.

Grounds 3 and 4

30 These grounds may be taken together, although ground 3 focussed attention on the sentence on count 5, the attempted bribery count.

31 The applicant was aged 40 years when sentenced, and had five young children, the eldest 10 years of age. He had been involved in body building since the mid-eighties and had competed in body building competitions for many years. He commenced use of steroids in that context. He told police that he helped out a few friends who asked him to get steroids for them. The judge accepted that he was genuinely remorseful, came from a good family and had worked hard, regularly and successfully in family businesses since leaving school at the age of 13 years. A number of character witnesses gave impressive evidence on his behalf.

32 The judge viewed the applicant's prospects of rehabilitation as "reasonable", but noted that the applicant admitted ten prior convictions, or findings of guilt, between 1984 and 2000, from seven court appearances. His convictions included three counts of assault. The last appearance, in 2000, was for possession of a drug of dependence, a steroid, which charge was adjourned without conviction.

33 The learned sentencing judge accepted that the drugs to which counts 3 and 4 related were for personal use only, and were not related to trafficking. On counts 1 and 2, however, the applicant admitted that he was a drug trafficker: on count 1, admitting that he was a trafficker in a commercial quantity of a drug of dependence.

34 As to the complaint that the sentence of 18 months' imprisonment on count 1 was manifestly excessive it is to be noted that defence counsel had himself acknowledged that a sentence of 12 months' imprisonment would be within range, albeit, that he submitted it should be served by way of an intensive correction order. Having regard to the fact (subject to what I later say as to maximum penalties) that the maximum penalty for the offence was 25 years' imprisonment, it is difficult to see how a sentence of 18 months' imprisonment for an offence that involved trafficking in one and a half times the commercial quantity of a drug of dependence could constitute the sentence manifestly excessive, and, in my opinion, it was not.

35 It was accepted below, and again before us, that the most serious of the offences was that on count 5. Defence counsel acknowledged that imprisonment was inevitable, but submitted that it was appropriate that the sentence be wholly suspended.

36 His Honour rightly said that the offence of attempting to pervert the course of justice struck at the very heart of the system of justice. The maximum penalty for the offence is 25 years' imprisonment but, as Callaway, J.A. held in DPP v. Aydin and Kirsch,[13] that must be kept in perspective, it being the penalty reserved for the worst cases. As Callaway, J.A. observed, whilst a sentencing judge should steer by the maximum penalty, he or she should not aim at the maximum penalty.

37 The circumstances of offences of attempting to pervert the course of justice may vary greatly and, whilst acknowledging the seriousness of the offence generally, each case must be assessed on its own facts. His Honour accepted that it was only upon learning that his property was at risk of forfeiture under the Confiscation Act that the applicant resolved to offer a bribe to police. Whilst alarm as to that prospect might explain his foolish decision, the attempt to bribe the police officers was calculated, repeated (indeed, the size of the proffered bribe escalated), and seriously intended. In my opinion, the sentence imposed by his Honour was well within range, and the decision to make the sentences on counts 2, 3 and 4 wholly concurrent, was merciful, especially so in the case of count 2.

38 Complaint was made as to the sentences being manifestly excessive on each count, and also by virtue of the total effective sentence and the non-parole period, but I reject the contention that any of the sentences or the non-parole period was manifestly excessive. I did not uphold grounds 3 and 4.

39 I concluded, however, that specific sentencing error tainted the sentence on count 1 and since that was the opinion of the other members of the Court the sentencing discretion was re-opened and the Court was required to determine for itself the appropriate sentences to impose.

40 Save for disregarding the potential impact of the Confiscation Act and wrongly taking into account the harmfulness of steroids, the learned sentencing judge had regard to all relevant mitigating and aggravating factors in this case. Insofar as he had regard to the harmfulness of steroid trafficking that consideration was to the benefit of the applicant, and in putting to one side the question of comparative harmfulness of the drug in question, for the purpose of re-sentencing, I do not consider that the trafficking in this case was any less serious than the judge apparently thought it to be.

41 Upon weighing those factors for myself, and then taking into account the additional factor of the potential forfeiture of assets, I would still not have imposed different sentences to those imposed below, on any of the counts. Furthermore, I would not have made any different order as to cumulation to that made by his Honour. The order as to cumulation was moderate and balanced, and the non-parole period, too, was appropriate.

42 In the result, therefore, in the exercise of my own discretion upon re-sentencing I concluded that I would not vary any of the sentencing orders made by the judge. In the result, I agreed that the appropriate orders were that the application for leave to appeal be granted but the appeal be dismissed.

[1] See R. v. Pidoto and O'Dea [2006] VSCA 185.

[2] The judge accepted that the drugs involved were for personal use and not for the purpose of trafficking. The maximum penalty upon the finding of personal use possession, only, was 12 months' imprisonment, not 5 years' imprisonment.

[3] See fn.2.

[4] Schedule 2, par 1(ab).

[5] [2004] VSCA 203, at [13], per Buchanan, J.A., Winneke, P. and Vincent, J.A. agreeing.

[6] [2005] VSCA 112, at [7], [10], [13], [14], per Winneke, P., Byrne and Osborn, A.JJ.A. agreeing.

[7] [2005] VSCA 284, at [12], per Charles, J.A., Buchanan, J.A. and Eames, J.A. agreeing.

[8] On the appeal attention focussed on the sentences on counts 1 and 2, rather than on the possession counts.

[9] [2004] VSCA 203.

[10] [2006] VSCA 185, at [39]; per Maxwell, P, Buchanan, Vincent, and Eames JJ.A., Callaway, J.A. dubitante.

[11] At [41].

[12] At [36]-[44].

[13] [2005] VSCA 86, at [9]-[12].