Barnes v Lodding
[2019] ACTMC 24
•23 July 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barnes v Lodding |
Citation: | [2019] ACTMC 24 |
Hearing Date(s): | 09 July 2019 |
DecisionDate: | 23 July 2019 |
Before: | Magistrate Stewart |
Decision: | See paragraphs [26] – [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment - sentencing – trafficking in a controlled drug other than cannabis |
Legislation Cited: | Crimes Act 1900 (ACT) s 375 Crimes (Sentencing) Act 2005 (ACT) s 10 Criminal Code 2002 (ACT) s 603(7) |
Cases Cited: Cases Considered: | R v Brown [2019] ACTSC 59 R v Major [2016] ACTSC 161 Nchouki v The Queen [2018] ACTSC 28 Parente v The Queen [2017] NSWCCA 284 R v BG [2017] ACTSC 382 R v Carney [2013] ACTSC 266 R v Davidson [2018] ACTSC 227 R v Di Bitonton [2016] 280 R v Hyde [2017] ACTSC 337 R v Le Pavoux [2017] ACTSC 330 R v Lou (No 2) [2017] ACTSC 266 R v NE [2015] ACTSC 352 R v NF (No 1) [2016] ACTSC 216 Zhao v The Queen [2018] ACTCA 38 |
Parties: | Wayde Barnes (Informant) Robert John Lodding (Defendant) |
Representation: | Counsel Mr M Wall (Crown) Mr R Thomas (Defendant) |
File Number(s): | CC 14704 of 2018 |
MAGISTRATE STEWART:
INTRODUCTION
Robert John Lodding is charged as follows pursuant to s 603(7) of the Criminal Code 2002 (ACT):
That he in the Australian Capital Territory on 11 December, 2018 trafficked in a controlled drug other than cannabis, namely methylamphetamine.
FACTS
Police commenced searching Mr Lodding’s premises in Isabella Plains at about 9.30 am on Tuesday 11 December 2018. Other adults and children were present in the home. What turned out to be 114.169 grams of 76.5% pure methylamphetamine was found in a clear, snap-lock bag in a drawer in Mr Lodding’s bedroom.
Police also found a set of digital scales and a number of small clip-seal bags with a rabbit motif on them in the main garage. More than $20,000 in cash was seized by police but the Court was advised this has since been returned to the Lodding family. On that basis, I do not take the cash into account or draw any inferences from it adverse to Mr Lodding.
Mr Lodding chose to participate in a record of conversation during the search. I was provided a copy of the transcript of that interview by his counsel, Mr Thomas. This interview forms the factual basis of the plea as there is no other evidence tendered by the prosecution in terms of a factual basis.
Mr Lodding was cautioned, understood that caution and told police that:
a. there were amphetamines inside the premises in either the bedroom or garage;
b. there was a set of scales in the garage;
c. anything they found was his and not the property of others present at the house;
d. he owned the bag of amphetamines found in his bedroom;
e. his partner Mel and his two little girls also stayed in that bedroom;
f. he sold some of the drug to support his habit which he had for a lot of years;
g. he sold amphetamines to only cover the cost of what he used;
h. the amphetamines seized were worth about ten thousand dollars ($10,000);
i. he would not say from whom he bought the drug or the cost of it;
j. he usually cut the drug down with salts and glucose;
k. he used a good couple of grams per day;
l. he works as a plasterer and owns his home;
m. ice is killing people and he didn’t believe in selling it to anyone he knew;
n. his amphetamine habit was getting worse; and
o. he mixed the drug up with salts and glucose in a bag he called a ‘sachet’ for the purpose of his own use.
OBJECTIVE SERIOUSNESS
The factual basis considered by his Honour Mossop J in R v Brown [2019] ACTSC 59 (31 January 2019) is similar to this matter, although the amount of methylamphetamine dealt with by his Honour there was far less than in the present case – 43.52 grams compared to 114.169 grams. 114.169 grams represents more than 19 times the amount of a trafficable quantity of methylamphetamine. I note that Mr Brown had other matters taken into account on sentence and was also sentenced for possessing a small amount of MDA for sale of supply.
As his Honour Mossop J noted in R v Brown at [12]:
The quantity of methylamphetamine was significant both in terms of the potential harm to the community, but also as one of the indicators of his level in the hierarchy of traffickers. Whilst the evidence does not establish that he was more than a user-dealer, it is sufficient to establish that the scale of activity was at the higher rather than the lower end of this category of trafficking. The quantity of methylamphetamines is enough to be significant in terms of the harmful effects caused by its distribution. The Crown has not established that the motivation went significantly beyond the maintenance of a significant methylamphetamine habit. Overall I would assess the objective seriousness of this offence as below the mid range of objective seriousness for offences of this type.
On Mr Lodding’s own admissions, he sold methylamphetamine to strangers and he was found with over 114 grams of it in the same room that two young children slept in. The risk to random drug users and his own family is plain. The offending calls for general deterrence to remind offenders that this type of offending will not be tolerated by the community. There is also a need for specific deterrence – Mr Lodding’s criminal record shows that he has had two previous reminders from this court in relation to illicit drugs:
(i) On 12 February 1997, Mr Lodding was dealt with for possess methylamphetamine for sale, cultivate cannabis and possess cannabis. He was convicted on each, sentenced to 52 periods of detention and placed on two recognisances to be of good behaviour. That was his first warning in relation to illicit drugs and it involved periodic incarceration.
(ii) On 01 April 2004, Mr Lodding received a conviction and fine for one count of simple possession of cannabis and one count of cultivating a prohibited plant. That was his second warning in relation to illicit drugs.
I cannot, and do not, treat Mr Lodding as a first offender in those circumstances.
I find that Mr Lodding’s offending is towards the mid range of objective seriousness for a user-dealer of methylamphetamine.
SUBJECTIVE CIRCUMSTANCES
A pre-sentence report dated 05 July 2019 was tendered. Mr Lodding is 51 years old and the father of six children, the two youngest being aged three and four years of age and the older children ranging from 15 to 24 years. He has a stable personal relationship with the mother of his two youngest children. He presently works in the waste industry.
The report assessed Mr Lodding as being of a medium/low risk of re-offending despite his self-reported decades long history with illicit drugs and his prior convictions in relation to cannabis and possessing methylamphetamine for sale.
A CADAS report dated 04 July 2019 was also tendered. It reports a history of amphetamine use since Mr Lodding’s early twenties.
Mr Lodding reported no amphetamine use since his arrest. All urinalysis results since that date support this claim. He has participated in the SMART recovery program and reported missing only one weekly meeting since January 2019.
Mr Thomas tendered documents from Directions and SMART to support this. Two further references attest to Mr Lodding’s work ethic and capacity for work.
PLEA OF GUILTY
Mr Lodding entered a plea of not guilty on 24 January 2019, representations were made to the Office of the Director of Public Prosecutions and a plea of guilty to the present charge was entered on 3 May 2019 – the fifth time that the matter was before this Court. The court file indicates that the plea of guilty came less than five weeks after the prosecution brief had been served on Mr Lodding’s legal representatives. In those circumstances, I intend to allow full credit for the utilitarian value of the plea.
TIME IN CUSTODY
Mr Lodding was formally arrested a little after midnight on Wednesday 12 December 2018. He was granted bail in this court later that day. I will give him credit for one day in custody.
CONSIDERATION
Section 603(7) of the Criminal Code 2002 carries a maximum penalty of 10 years imprisonment or fine of 1,000 penalty units. Ordinarily, such a matter would be dealt with by the Supreme Court. However, the Mr Lodding consents to the matter being disposed of summarily. In those circumstances, pursuant to s 375 of the Crimes Act1900 (ACT), this Court has power to sentence if a sentence no greater than 5 years or a fine $15,000 can be imposed. I find that this matter can be dealt with within that extended sentencing jurisdiction of the Court.
Methylamphetamine is a controlled drug because it is both addictive and harmful. The harm that methylamphetamine causes in the community is common knowledge.
The motive for selling the drug was commercial in the sense that the returns from limited sales funded the then raging drug habit of Mr Lodding.
It is common ground that offending of this type calls for a sentence of imprisonment. I find that, pursuant to s 10(2) of the Crimes (Sentencing) Act 2005 (ACT), having considered every other alternative, no penalty other than imprisonment is appropriate.
A folder of written submissions and cases were also tendered by Mr Thomas. I have considered all of those documents and cases. Counsel for the prosecution tendered a summary of relevant cases, and I have also read those summaries and turned to the cases.
Mr Thomas submitted that the matter was appropriate for consideration of an intensive corrections order report. As his Honour Burns J noted in R v Major [2016] ACTSC 161 (16 June 2016) at [32], “[a]n intensive corrections order involves an extension of significant leniency compared to a sentence of full time imprisonment”. I find that the objective seriousness of the offending in this matter makes any such leniency inappropriate.
Similarly, instinctively, the objective seriousness of the offending in this matter does not warrant the inevitable sentence of imprisonment to be suspended or partly suspended by way of combination sentence.
I start at 20 months as the appropriate term for the head sentence. I will reduce that by 25% on account of the timing of the plea. Resolving matters in this Court, rather than committing them for sentence to the Supreme Court, should be encouraged where possible. I will afford Mr Lodding one day’s credit for his short stay in custody.
SENTENCE
Mr Lodding, I find the offence proved and you are convicted. The sentence of the Court is 15 months imprisonment, less one day, from today 23 July 2019 and ending on 21 October 2020.
I fix a non-parole period of 10 months, less one day, from today 23 July 2019 until 21 May 2020.
I decline to exercise my discretion to order an intensive corrections report or suspend the sentence in whole or part. The offending is too objectively serious for those courses to be followed.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Stewart. Associate: Angus Brown Date: 23 July 2019 |