Queensland Health successfully prosecute breaches under s 271(1) of the Health (Drugs and Poisons) Regulation 1996

The defendant was charged with three breaches of s 271(1) of the Health (Drugs and Poisons) Regulation 1996 for obtaining, possessing and selling nicotine without an approval and faced a maximum penalty of $31,332.00.

The charges were brought following the execution of a search warrant at the defendant’s premises whereby over 2,160 bottles of liquid containing nicotine for use in e-cigarette products were seized. The size of the bottles ranged from 5ml to 50ml. Several 500ml bottles of pure liquid nicotine were also seized. The defendant admitted to obtaining liquid nicotine from a source in China and selling it in e-cigarette products via an online business.

The defendant pleaded guilty to all three charges and was sentenced before Magistrate Thacker at the Redcliffe Magistrates Court on 17 April 2019. Crown Law acted on behalf of the complainant.

The prosecution sought a penalty in the range of $7,000 - $10,000 with a conviction record, an order for forfeiture of the seized items pursuant to s 153H of the Health Act 1937 and sought reimbursement of its professional costs in the amount of $1,500. It was submitted that both specific and general deterrence were necessary to protect the community from the significant health risks posed by nicotine use.

The defendant made submissions that he started his e-cigarette business to stop people smoking traditional cigarettes, not for financial reasons. He had a previous career as a tiler was now a full-time carer for his ill wife. In response to questioning from Magistrate Thacker, the defendant conceded that he was not a scientist, nor had he done any real research with respect to starting his online e-cigarette business.

Magistrate Thacker made the following orders on sentence:

1. The defendant pay a fine in the amount of $7,000 within one month.
2. That a conviction be recorded.
3. That the defendant pay to the complainant $1,500 in costs in addition to the $7,000 penalty.
4. That all items seized during the execution of the search warrant be forfeited pursuant to s 153H of the Health Act 1937.

In imposing this penalty, Magistrate Thacker noted that she was required to take the defendant’s financial circumstances into consideration and that the defendant’s financial circumstances were “dire”. Her Honour said she would have otherwise imposed a penalty of $10,000 without hesitation. Her Honour also took the defendant’s early guilty plea into consideration, noting that he had pleaded guilty at the earliest opportunity and did not otherwise have a criminal history.

Magistrate Thacker otherwise made the following remarks:

• Her Honour found it troubling that the defendant ran an e-cigarette business without any qualifications, noting the photographs depicted an extensive business being conducted from his residence.
• Her Honour noted that there had been wide debate and general community acceptance of the negative impacts nicotine has on users. Her Honour also noted that nicotine users typically put more pressure on the health system.
• Her Honour agreed that a deterrent sentence must be imposed to achieve both specific and general deterrence. Her Honour said the sentence should also denounce the defendant’s conduct. Her Honour was of the view that a strong message ought to be sent to the community and that there was otherwise a need to protect the community from harm.