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Scott v The King [2023] WASCA 14

The offender was sentenced following pleas of guilty to 7 counts of intentionally importing tier 1 goods contrary to s 233BAA(4) of the Customs Act 1901 (Cth). Offending related to 5,772.7 grams of various steroids. Original sentence imposed 4 years imprisonment with a non-parole period of 2 years and 8 months. Offender appealed on the ground that the indicative sentence for count 1 was manifestly excessive, that the total effective sentence infringed the totality principle, and that the non-parole period was manifestly excessive.

Manifest Excess: Count 1 was a relatively serious example of an offence of its type. Offending occurred after 11 earlier packages containing steroids had been intercepted and offender had been formally warned by the ABF that their activities were illegal. Offender took steps to avoid detection of the offending. Offender was conducting a commercial enterprise as principal. The business was sizable. The offending was premeditated, well organised and part of an ongoing course of deliberate unlawful conduct. It is true that, comparing the offending the subject of counts 1, 6 and 7, the latter two counts had additional aggravating features in that they were committed while offender was on bail. But in the whole of the circumstances applying to the various offences this is not a basis for any material disparity in terms of sentencing outcomes. The sentence of 1 year and 4 months imprisonment for count 1 is of a severity that is appropriate in all the circumstances of the offence.

Non-Parole Period: While it must be accepted that offender was not likely to re-offend and there was the prospect of rehabilitation, personal deterrence remained a major sentencing consideration. Offender’s non-parole period of 2 years and 8 months is undoubtedly high. That is particularly so given the findings made as to offender not being likely to re-offend and the prospect of rehabilitation. In the end, however, the non-parole period does not reach, although it approaches, a length which could properly be characterised as unreasonable or plainly unjust.

Totality: The total effective sentence of 4 years imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors, including the total effective sentences imposed in comparable cases. It was appropriate, in order to properly mark the offender’s overall criminality, to order the accumulation of the sentences for counts 6 and 7 with the sentence for count 1, the sentences for counts 2–5 to be served concurrently.

Leave to appeal on ground 1 refused. Leave to appeal on grounds 2 and 3 granted. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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