A WA pharmacist has lost his appeal against a $60,000 fine and $36,500 court costs for importing ice pipes
Hoang Nam Nguyen sought leave to appeal on two grounds: that both the fine and the costs orders were excessive.
He had pleaded guilty to importing 2001 pipes, but claimed he thought they were for smoking tobacco.
As well as working as a pharmacist, Mr Nguyen was at the time the owner of the Highgate “Cloud 9 Smoke Shop and Accessories” store.
The Supreme Court of Western Australia heard that on 2 July 2014, a Customs official intercepted and opened two parcels from a Chinese supplier which arrived in Perth, addressed to Mr Nguyen at his pharmacy’s address.
Each was found to contain 250 ice pipes, individually wrapped in bubble wrap and each labelled “SWEET PUFF Holland”. The paperwork attached to the parcels described these as “Glass container samples” with a value of US$40 (AUD$52.60).
Two more parcels arrived on 9 July 2014 labelled with the same name and address, and were found to contain 250 and 251 ice pipes respectively.
A third shipment, this time from India, had arrived on 2 May 2014, containing 1000 “SWEET PUFF” pipes and with a declared value of AUD$3,195.27. This shipment was not seized by Customs, but cleared for delivery.
Analysis of Mr Nguyen’s computer showed his order of the pipes from India as well as email correspondence complaining about poor packing leading to breakages, and correspondence with his Chinese supplier in which the supplier warned that “AU custom may check the box. If they deduct it, we will ship it free … In 5 years, we only met 4 case like that”.
The supplier warned him not to ship the pipes to the Cloud 9 Smoke Shop as the word “smoke” could be a red flag, and Mr Nguyen agreed to have them sent to the pharmacy instead.
Customs searched his Cloud 9 smoke shop and found 154 broken pipes and 151 undamaged pipes labelled “SWEET PUFF” for sale.
During the Customs investigations Mr Nguyen said the pipes were for smoking tobacco and had been sold for this purpose to him, and that he sold tobacco pipes because he owned a tobacco shop.
He said that as a non-smoker he did not know if they were effective for smoking for tobacco.
When Mr Nguyen was sentenced, the magistrate “considered that the commercial nature of the enterprise required specific deterrence,” Justice Banks-Smith noted, and found that “a global fine was appropriate taking into account the similar nature of the offences but noted there were three separate imports and there was planning involved”.
The sentencing magistrate had reduced the costs to $45,916, but then it was brought to her attention that the prosecution was seeking only $36,500 and “said that the costs order could then be $36,500 ‘if that’s what has been agreed and discussed,’”.
Mr Nguyen said the fine of $60,000 was “manifestly excessive” given that the three offences reflected one course of conduct, he had made some attempts to determine whether he could import the pipes legally, they were sent to his pharmacy and he fully cooperated with Customs when they came to his shop.
But the appeals court disagreed.
Ice pipes “do not have any legitimate use,” Justice Banks-Smith noted.
“In my view, the magistrate took into account the above matters to the extent required. She noted there were separate importations involving different circumstances.
“It is clear that her Honour did not accept on the evidence before her that the appellant, as a pharmacist, had no knowledge of the use that is made of ice pipes.
“Against a possible maximum fine of $510,000 for the three offences, capped at $102,000 by the jurisdictional threshold, I do not consider the fine is manifestly excessive.”
The magistrate was also found not to have erred in applying costs.