Director of Public Prosecutions v Bonazza
[2024] ACTSC 349
•4 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Bonazza |
Citation: | [2024] ACTSC 349 |
Hearing Date: | 11 June 2024; 27 September 2024 |
Decision Date: | 4 November 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [130] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis – money laundering - intensive corrections order (ICO) |
Legislation Cited: | Crimes Act 1900 (ACT) s 114B Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 33(1)(j) Criminal Code 2002 (ACT) s 603(7) |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 DPP v Cummins [2023] ACTSC 127 DPP v Vincent (No 2) [2023] ACTSC 379 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 Markarian v The Queen [2005] HCA 25 ; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen 189 CLR 295 R v Ang [2014] ACTCA 17 R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 R v Cole [2019] ACTSC 228 R v Day (1998) 100 A Crim R 275 R v Elson [2020] ACTSC 264 R v Figura (No 2) [2019] ACTSC 222 R v Harmouche [2020] ACTSC 194 R v Hyde [2020] ACTSC 301 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mackinder [2021] ACTSC 176 R v Nchouki [2022] ACTSC 227 R v Ngerengere (No 3) [2016] ACTSC 299 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Osenkowski (1982) 30 SASR 212 R v Pahl [2022] ACTSC 113 R v Pham [2015] HCA 39; 256 CLR 550 R v Srna [2018] ACTSC 337 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 240 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Saga v Reid [2010] ACTSC 59 Stanford v The Queen [2007] NSWCCA 73 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 |
Parties: | Director of Public Prosecutions J Bonazza ( Offender) |
Representation: | Counsel E Wren ( DPP) M Kukulies-Smith ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Offender) | |
File Number: | SCC 68 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․On 13 March 2024, Mr Bonanza (the offender) pleaded guilty to the following offences in the ACT Magistrates Court:
(a)An offence of trafficking in a controlled drug other than cannabis, namely cocaine (CC2023/6411), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 10 years’ imprisonment, 1,000 penalty units or both.
(b)An offence of money laundering (CC2023/6751), contrary to s 114B of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 10 years’ imprisonment, 1,000 penalty units or both.
Agreed facts
2․The agreed facts are set out in a Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
3․On 21 June 2023, the police were granted search warrants for an apartment unit and a car.
4․On 22 June 2023, the police attended the apartment premises to execute those warrants.
5․During the search of the unit, the police found the following items:
(a)A knotted plastic wrap containing yellow powder, weighing 27.607 grams.
(b)A snaplock plastic bag containing white powder, weighing 104.233 grams.
(c)Four snaplock plastic bags and a knotted plastic wrap containing white powder, weighing 139.630 grams.
(d)A snaplock plastic bag containing white powder, weighing 0.564 grams.
6․The total amount of cocaine seized was 272.024 grams.
7․The police also located Australian currency during the search. $14,430.00 of the currency located was identified as the proceeds of crime.
8․The police also located multiple notes with dollar amounts and names in the unit. The offender confirmed that the notes were in his handwriting, that they related to dealing cocaine, and that he had been dealing cocaine to pay for his cocaine addiction.
9․The offender also stated that he used creatine to “cut” cocaine for both personal use and sale.
10․The offender also provided police access to his mobile phone. A review of the mobile phone showed multiple messages on encrypted messaging applications relating to weights and costs. A set of photographs of messages involving the offender was also included in the prosecution tender bundle. The messages appear to pertain to the dealing of cocaine, including discussions of methods of “repressing” and “cutting” as well as pricing.
11․The offender was arrested on that day and was taken into custody and the offender was then held on remand until being released on bail on 5 July 2023. He has remained on bail since, although he was apparently held in custody for two days on 28 and 29 December 2023 for breaching his bail conditions.
12․For completeness, I note that on 21 August 2024 the offender was again arrested for breaching his bail conditions. An alleged bail breach report dated 20 August 2024 noted that the offender was directed to undertake urinalysis testing on 14 August 2024. Laboratory testing confirmed the presence of cocaine, benzoylecgonine (major metabolite of cocaine), and ecgonine methylester (metabolite of cocaine). Counsel for the prosecution did not apply to revoke the offender’s bail on 22 August 2024. I will, however, discuss this matter later in the judgment at [72] - [75].
Objective seriousness of the offences
13․An assessment of the objective seriousness of an offence has always been an essential part of the sentencing process. It must be stated that references to low, mid-range and high-range are generally unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. It is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality; what is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29] (Muldrock); see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
14․With these principles stated, I outline the submissions of both parties in relation to objective seriousness below and come to conclusions as to objective seriousness.
Trafficking in controlled drugs other than cannabis (CC2023/6411)
15․Bui v The Queen [2015] ACTCA 5 (Bui) is relevant in this context: the Court of Appeal (Refshauge, Penfold and Perry JJ) referred to various key principles in sentencing an offender for drug trafficking (at [41]) concerning role, weight and motivation:
Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
16․Counsel for the prosecution properly submitted that the following features of the offending informed the objective seriousness:
(a)The offending involved actual trafficking rather than deemed trafficking. Counsel for the prosecution noted the offender’s own admissions as to the sale of the cocaine and the content of the text messages located on his phone.
(b)While counsel for the prosecution conceded that it is not possible to know where the offender sits on the “hierarchy,” counsel for the prosecution submitted that the facts and the offender’s text messages to a contact disclosed “a relatively organised operation.” Counsel submitted this contrasts with a “street dealer”. who traffics drugs in small amounts solely for the purpose of supporting their own habit.
(c)The weight of the drug seized was 272.024 grams. Counsel for the prosecution noted that was approximately 45 times the trafficable quantity.
(d)Counsel for the prosecution submitted that, notwithstanding the offender’s use of cocaine it is “an irresistible inference that there was also a financial motivation for the offending.”
17․In response, counsel for the offender submitted that this offending is “below the mid-range of objective seriousness”.
18․Counsel for the offender properly noted that the trafficable quantity of cocaine is 6 grams. The amount of cocaine for Count 1 was 272.024 grams. Counsel for the offender submitted that, while it is correct that the cocaine found was 45 times the trafficable quantity of cocaine, it is “less than 9%” of a commercial quantity.
19․Counsel for the offender further submitted that the evidence did not “permit” a detailed finding on the offender’s role. However, counsel for the offender correctly conceded that the offender is more than a street level dealer given the quantity of cash in the offender’s possession and the fact that the drugs “were not in “deal-sized” bags”: see R v Hyde [2020] ACTSC 301. Counsel for the offender submitted that the evidence alone is not “capable of establishing” that the offender was at the upper-end of the “hierarchy” or at the ”top of any distribution network”. I note that it is well established that a finding concerning role where it is an aggravating factor on sentence must be made beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at 281 at [27].
20․Ultimately, counsel for the offender submitted that the available inference from the evidence is that the offender is a “dealer above street level”. I agree on the evidence before me in this case.
21․Counsel for the offender submitted that the offender’s motivation for trafficking drugs was to fund his own drug habit. Counsel for the offender accepted that, as such, and at least to that extent, “had a profit aspect to it.” Counsel for the offender further noted that this is reflected in so far as the offender’s legitimate income could not support his drug habit. Counsel for the offender submitted that this is supported by the Pre-Sentence Report (PSR), which notes that the offender attributed the offences to his own poor choices, the loss of a close friend and “being rejected by his friendship group” and claimed he was trafficking the drugs to support his own illicit substance addiction.
22․Counsel for the offender further submitted that while the other participant in the messages within the Crown bundle appeared motivated to deal drugs to support lifestyles such as holidays, there is no evidence that was the case for the offender.
23․Finally, counsel for the offender also noted that there were no other factors that aggravate the offending. I agree on the evidence.
Conclusion on objective seriousness
24․I accept the identifying feature outlined by both the prosecution and counsel for the accused. The role of the accused is a dealer above street level and therefore, taking into account the identifying features, is above low-level objective seriousness. I note the weight in accordance with the principles outlined in Bui and Wong v The Queen (2001) 207 CLR 584. As for motivation, I accept that the offender was dealing in the main to support his own habit. Nevertheless, I do not accept that his sole motivation was his own habit. On the other hand, the offending is certainly not aggravated in the sense of an offender being involved solely for profit. Nor did the evidence establish that the offender was substantially involved in dealing for profit. Further, I note there were no indicia of any significant profit or lavish lifestyle despite the would-be “big noting” which appears in the phone messages.
Money laundering (CC2023/6751)
25․Counsel for the prosecution referred to R v Cole [2019] ACTSC 228 (Cole), where Murrell CJ considered the factors relevant to the objective seriousness of a money laundering offence contrary to s 114B of the Crimes Act (at [16]-[19]) including in particular nature of the dealing and value of the proceeds:
16. In assessing the objective seriousness of the offence, it is relevant to consider the purpose and nature of the dealing. Dealing can involve a number of activities. In this case, the dealing was the possession of monies on one day.
17.Another relevant factor is the nature of the proceeds of crime, as defined under s 114A of the Crimes Act. Proceeds of crime is defined to include property derived or realised, directly or indirectly, from the commission of an offence. In this case, the inescapable inference is that the cash was derived directly from the commission of a serious offence, being the offence of selling drugs, probably cocaine.
18.The value of the proceeds of crime is an important consideration when determining the objective seriousness of the offence. Unlike provisions in some other jurisdictions, the ACT offence provision does not reference penalties to the value of proceeds of crime. The amount of proceeds that can be the subject of the offence is open-ended. However, on any view, the value of $101,900 was high.
19.Although the offence was constituted by the offender possessing proceeds of crime on only one day, his possession of the proceeds of crime must be considered in context. The position was not transitory. The circumstances of the possession were more permanent.
(emphasis added)
26․Counsel for the prosecution noted that, as in Cole, the “dealing” in this case was possession of money at the date of the search warrant. Counsel for the prosecution submitted that there is also “the inescapable inference” that the property (i.e. money) was derived from the trafficking of cocaine. Counsel for the prosecution also noted that, notwithstanding that the possession was on a single day, the possession was not transitory given the “context and its relationship to drug trafficking”. I agree that is established on the evidence before me.
27․In submissions, counsel for the offender accepted that the offender’s admissions do support the conclusion that the offender’s possession of the relevant “proceeds” was not transitory. The money was derived from the sale of drugs.
28․However, counsel for the offender also correctly noted that the amount of money in this case ($14,430.00) is not as significant as for example the sum in Cole by way of a comparable case of $101,900.00 in cash (including $75,000.00 in a black zip-up bag): Cole at [5](b).
Conclusion
29․As to identifying features, it is clear on the evidence, and I accept, that the money was derived from the sale of illegal drugs. I further note that the sum of money is not in the highest category of cash associated with such offences. I adopt the submissions of both counsel as the submissions are not inconsistent with each other and accord with the evidence before me.
Subjective circumstances
30․The offender is 42 years of age and currently gainfully employed installing plumbing insulation. Prior to this, he worked as a concreter; he also worked in the fitness industry and for a government department for some 12 years.
31․In evidence before me is a pre-sentence report dated 30 May 2024 (the PSR) prepared for the offender. Also in evidence before me is an Intensive Correction Order Assessment Report dated 17 September 2024 (the ICOAR), which included further details on the offender’s subjective circumstances.
32․The relevant details included by the PSR and ICOAR are set out below. I will also discuss the conclusion of the ICOAR as to the offender’s suitability for an Intensive Corrections Order (ICO) later in this judgment. This issue, that is the appropriateness of the imposition of an ICO, is at the core of the sentencing exercise concerning this offender.
Response during ICO Assessment Period
33․At the outset I note that the ICOAR referred to the fact that the offender’s compliance with bail supervision had been satisfactory prior to an alleged breach for use of illicit drugs.
34․During the ICO assessment period, the offender failed to attend one interview, prior to participating in two interviews. The ICOAR further noted that the offender undertook urinalysis testing on 14 August 2024 where cocaine was detected, and a breach of bail was submitted to the court. Subsequent testing on 23 August 2024 detected no illicit substances.
Family / Marital Background
35․The PSR noted that the offender was born in Sydney, one of three children from his parent’s relationship. The offender lived in Sydney until 1997, when the family moved to Canberra for his father’s work.
36․The offender reported a happy childhood. The offender also reported positive relationships with both parents and his two brothers, with frequent contact. I note the attendance of a significant number of members of the offender’s family, his wife and friends on the sentence hearing dates. The PSR also noted that the offender has been in a relationship for the past 22 years, being married since 2018. The offender spoke highly of his wife and her support. The couple do not have children.
Socioeconomic Circumstances
37․The PSR noted that the offender resides in a property owned by him and his wife, and is paying off a mortgage. The offender and his wife have lived at this location for the past eight years.
38․The PSR notes that the offender completed Year 12. As noted earlier, the offender worked for a government department for 12 years, before returning to study and obtaining a Diploma of Fitness in 2017. The offender then worked as a personal trainer from 2017 until he was charged with the current offences, as his Working with Vulnerable People (WWVP) registration was suspended as a result.
39․While on bail, the PSR noted that the offender worked in concreting for four months. The offender is currently employed installing plumbing insulation, or “lagging”. The offender stated that he is grateful for the employment and the support of his employer, who is aware of the offender’s legal situation.
40․The ICOAR noted that the offender’s current employer is a long-term friend of the offender. The employer verified that the offender has prospects of becoming a subcontractor for his company, and that community supervision can be incorporated into his work schedule. The ICOAR further noted that the offender hopes to have his WWVP registration reinstated following sentencing and plans to return to the fitness industry if able to do so, one day.
41․The PSR noted that the offender received income from employment as well as a small Centrelink payment, with the amount being dependent on the hours he has worked. The offender reported a strained financial situation due to the cost of living and mortgage repayments. However, the offender described it as “manageable”.
42․The ICOAR noted that the offender’s wife has indicated she intends to access her super to clear joint debts pertaining to their property.
43․The PSR also noted that the offender admitted to gambling when he was in addiction and that he spent all his savings. However, the offender advised that gambling is not an issue for him when he is abstinent from illicit substances.
44․The PSR noted that the offender spends his leisure time maintaining his fitness. The offender enjoyed walking, and he attends regular Narcotics Anonymous meetings. The ICOAR noted that the offender’s wife confirmed that the offender has recommenced physical training at the gym.
Alcohol and Drug Use
45․The offender reported drinking to intoxication at significant social events, such as weddings, although the offender noted that he otherwise does not drink alcohol regularly. Later, the offender reported to the author of the ICOAR that since “lapsing” in March 2024, he has only consumed alcohol in licensed venues.
46․As noted by the PSR, the offender reported using cocaine recreationally until 2020. In 2020, the offender’s use increased following the death of a close friend and rejection by his friendship group. The PSR noted that the offender used cocaine to deal with his grief and to perform at work when feeling depressed. The offender identified the death of his friend as the catalyst for his cocaine addiction, which in turn contributed to the current offences. The offender stated to the author of the PSR that he was embarrassed and ashamed of being in this situation, however, it had forced him to address his addiction and engage in treatment.
47․At the sentence hearing, the prosecution submitted that even in the midst of what the offender described as serious drug addiction, the offender was demonstrating to those in his circle he thought it was cool. The prosecution submitted this speaks against the evidence (including the text messages) that he was in a state of complete desperation and that this was the only option available to him.
48․In response, counsel for the offender submitted that this was not an aggravated example of dealing purely for profit, wealth or lavish lifestyle and the offender was still in a lot of debt. Counsel also submitted that there is a degree to which the offender was “big noting,” “trying to talk a big game” and exaggerating his own circumstances in the text messages, and that the messages should not take them literally. On the evidence as I see it, I accept this submission.
49․After his release from custody, the PSR noted that the offender entered the residential program of Canberra Recovery Services. The offender completed the program in November 2023. The offender attends weekly Narcotics Anonymous meetings and counselling to maintain abstinence, in addition to the support he receives from his wife and family.
50․As referred to earlier at [33], The ICOAR provided further details as to the recent tests undertaken by the offender.
51․I will discuss the explorations proffered by the offender as to the result of the 14 August 2024 testing, later in these remarks at [72] –[75].
Mental and Physical Health
52․The PSR noted that the offender reported low mood after his release from custody, although the offender has not been diagnosed with a mental illness. Further, I note that no R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins) submissions were made concerning Verdins factors on the question of mental health.
53․The ICOAR noted that a mental health care plan of a health co-op dated 10 April 2024 confirmed that the offender has anxiety disorder, panic disorder, and “differential diagnosis post-traumatic stress disorder”. ACT Corrective Services confirmed that the offender is engaged with a counsellor, who confirmed an intention to submit a referral for a psychologist.
Submissions on subjective matters
54․Counsel for the prosecution properly submitted that, on review of the PSR, the offender appears to have no criminogenic factors beyond his use of cocaine. Counsel for the prosecution further properly noted that the offender appears to enjoy the support of his family and is employed.
55․Similarly, counsel for the offender submitted that it is clear from the agreed facts and the PSR that the offender’s involvement with cocaine use has been “problematic” and was, at the time of his arrest, an addiction. I agree on the evidence.
56․Counsel for the offender noted the PSR refers to the actions taken by the offender to address these issues including treatment, completing a residential program and continuing to attend Narcotic’s Anonymous meetings.
57․Counsel for the offender also referred to the PSR noting that the offender has protective factors which will support his rehabilitation, including but not limited to employment and social supports. Counsel for the offender further noted that the offender is in a stable marriage and has support from his wife, two brothers and parents. In my view, these are important factors tending towards rehabilitation.
58․Counsel for the offender submitted that this support and the steps taken toward rehabilitation are matters that give reason for optimism in considering the offender’s prosects of rehabilitation and a reasonable prospect that he will not reoffend. I agree with the submissions recited above as the prosecution and offender’s submissions were not inconsistent and accord with my view of the subjective matters.
Remorse
59․As noted above at [46], the offender stated to the author of the PSR that he was “embarrassed and ashamed” to be in the situation and the offender noted that the situation forced him to address his addiction and engage in treatment.
60․Similarly, the ICOAR noted that the offender’s acknowledgment of his issues with illicit substance use, which led to his current offences. The ICOAR noted that the offender agreed with the statement of facts, and that he explained that his friend’s death was the beginning of his cocaine addiction. The offender stated that he had sought treatment, noting that ongoing substance use would place his relationship at risk.
61․Counsel for the prosecution submitted that limited weight can be placed on the offender’s statement to the author of the PSR as evidence of the offender’s true remorse for his offending and the impact it has on the community. I am not persuaded that only limited weight can be accorded to remorse in this case. The offender gave evidence before me in June of this year. In my view his remorse was clear and sincere when giving evidence before me.
62․Counsel for the offender submitted in this regard on three matters. First, that the offender did not dispute to the author of the PSR the statement of facts. Second, that the offender expressed regret. Third, that the offender did not appear to minimise the criminality of his behaviour. Counsel for the offender further submitted that this mirrors the offender’s admissions to police. Counsel for the offender submitted that the offender’s comments “resonate” as someone who is remorseful of his conduct and accepts responsibility for his actions. I accept this submission on the evidence before me and in particular the evidence the offender gave before me on which he was cross-examined.
63․I do ascribe significant forensic weight to the remorse expressed as it is consistent with the evidence in the case and the references to which I refer to below.
References
64․Three references were tendered in Court in support of the offender. These references are important.
65․A signed reference under the hand of the offender’s brother included the following:
I support him on his road to recover 100%! It is obvious [offender] lost his way for a while due to the influence of drugs. This is very out of character for my brother. [Offender] is a kind hearted, considerate & compassionate person, always willing to help anyone in need, & ready to do the right thing. He is a social person & has a big circle of friends & clients, all of whom hold him in a very high regard.
[Offender] has a huge passion for fitness lifestyle & is an avid motorcyclist.
[Offender] is also very hardworking too. After completing college & commencing a traineeship in hospitality at a very reputable Italian restaurant, an opportunity arose to work for a Commonwealth Government Agency & in 2005 [offender] began his career as Business Manager at The Office of National Assessments! [Offender] was a proud public servant & gave just over 12 years of service to ONA.
In 2015 he completed CERT III in Business and Management via CIT & in 2017 he left ONA to pursue his passion for fitness & weight training obtaining a Diploma of Fitness & started his first business JBPT as a Personal Trainer & group fitness coach.
In 2019 [offender] began employment as a Hiit Coach… [offender] regularly trained fellow staff members & friends during lunch breaks, before & after work totally for free so as to share his passion for fitness & help them on their fitness journey.
[Offender] is also a very loving & loyal family member…
… [Offender] has been working so hard to better himself & stay clean. I reached out to Marymead CatholicCare in order to get him enrolled in a counselling program for attending regular sessions with Miekel Rose commencing April 2024….
66․A signed reference under the hand of an AOD Support Connections Manager dated 16 September 2024 was also tendered and included the following:
I was given a referral for [offender] on the 28/03/2024 and contacted him immediately to start working with him. The referral came from a concerned family member who was aware of [offender’s] history with substance misuse and the subsequent matters before the court.
I began working with [offender] directly on the 5/04/2024. I was seeing [offender] weekly on a Friday regularly, but due to work commitments now see him fortnightly on a Monday morning. I last saw [offender] this morning. With 23 years of working in this field, I am well aware of the impact of substances and the associated damage they create in people’s lives.
[Offender] stated that he had developed a substance dependence issue which escalated to a high level and began to impact his daily life. [Offender] attempted to address this issue in residential treatment and through support by family and his wife. I was asked to support [offender] with the issues surrounding substance misuse and the direct impact to him and those close to him, as well as look back at his life and help him identify causes and triggers, so he does not return to substance dependence and the associated maladaptive behaviours.
[Offender] is a hard-working man, who is employed full time. He has strong family connections and support and is in a loving relationship. [Offender] has separated himself from the past lifestyle and is moving forward with the life of recovery from substance dependence. He is trying to rebuild his life recognising the past choices and consequences and not wanting to return to the damage he was doing to himself and those close to him. I will be continuing to work with [offender] on relapse prevention strategies, along with core beliefs, what created them and challenge those that are no longer useful for him.
I ask that the court considers the hard work [offender] has done to address his substance misuse issue and change his life completely and be a valuable and productive member to the community.
67․A signed reference under the hand of the offender’s close friend and employer dated 10 June 2024 was tendered and included the following:
I have been close friends to [offender] for over 10 years now. I’m aware that [offender] has been charged with trafficking a controlled substance and has been suspected of having property purchased with proceeds of crime. I feel that this is out of character for the [offender] I know and is close friends with. He has always been a responsible person from my perspective. Great personal trainer and dedicated to his health… recently [offender] has started working for me and has shown to be reliable, honest and trustworthy. His work ethic has been very impressive and has shown me he will continue to be an asset to my company given the chance. [Offender] and I have had lots of long conversations at work recently and he has expressed a lot of regret and remorse for his actions leading to his current circumstances. I truly feel he is ready to turn the corner and make huge changes for the positive in his life.
68․I take these important references into account on sentence.
Intensive Correction Order Assessment Report
69․When this matter came before me in June 2024, I determined that I should give serious consideration to the sentence being served by way of intensive correction order (ICO).
70․Counsel for the offender properly conceded that a sentence of imprisonment is the only appropriate sentence with respect to the offences. However, counsel for the offender submitted that where a Court finds that a sentence of full-time imprisonment is appropriate, the Court may order as an alternative that the sentence of imprisonment be served by ICO where the Court considers that there is a justification for it: R v Ngerengere (No 3) [2016] ACTSC 299 at [17] – [27]. I consider that an ICO is an appropriate alternative to full time imprisonment in this case as I discuss below.
71․Counsel for the offender further submitted that the relationship between drug use, the offending, and benefits for society in the offender continuing in gainful employment justifies consideration of the imposition of an ICO in the offender’s case. This submission is justified in this case despite the breach of bail concerning the use of illicit substances.
72․As noted earlier, the offender was arrested for breaching his bail in August 2024. At the bail breach hearing on 22 August 2024, the offender’s counsel was instructed that offender cannot “explain the result”. At the time, the prosecution noted that there was no application to revoke bail.
73․When queried regarding this positive test, the offender suggested to the author of the ICOAR that he could have ingested cocaine via a spiked drink at a party. The offender stated that his negative past companions were present at the event, and they may have had motive to sabotage him. I am not persuaded of this explanation. Nevertheless, it is well established that drug rehabilitation is not linear and there may be lapses on the way to recovery.
74․Understandably, the author of the ICOAR placed little credence on the explanation, nor does this Court.
75․Nevertheless, importantly, despite this, the ICOAR noted that the offender had undergone urinalysis drug testing on 10 occasions between 23 November 2023 to 12 August 2024. On eight occasions, no illicit substances were detected. In my view, this is of clear significance concerning rehabilitation.
Risk of reoffending
76․The ICOAR noted that the offender is suitable for a “low level of supervision” with ACT Corrective Services. The ICOAR stated that given the correlation between the substance misuse, his offending and ongoing substance use, his risk of reoffending may be lowered by further alcohol and drug treatment. This accords with my view of the evidence.
77․The ICOAR also stated that the offender would benefit from continuation with his current counselling at a non-government organisation, noting that their service also offers substance misuse counselling.
Community service work
78․Both the ICOAR and the PSR assessed the offender as suitable for a Community Service Work Condition, and that work is available. In my view, community service work would be appropriate in this case as a condition of an ICO. A period of 250 hours is appropriate to be undertaken during the period of the ICO.
Assessment conclusion
79․The ICOAR noted that the offender had no criminal record prior to these offences and that he receives personal support from his wife and family and has secured employment in a new industry.
80․The ICOAR noted that the offender acknowledged issues with illicit substance use which led to the current offences.
81․The ICOAR further noted that if an ICO is granted the offender would be required to have weekly telephone contact with ACT Corrective Services and a monthly face-to-face appointment at a minimum. This appears to this Court to be a sensible recommendation on the facts of the case before me.
Final Recommendation of ICOAR
82․The ICOAR concluded that the offender is suitable for an ICO. The ICOAR further stated that the following factors associated with the offending would be targeted if an ICO order was made:
(a)Substance misuse counselling and relapse prevention;
(b)Mental health treatment; and
(c)Companions.
83․The offender has signed an undertaking to comply with all the obligations of an ICO. In my view, the recommendations of the ICO including targeting relapse prevention, mental health counselling and companions are all sensible recommendations.
Criminal History
84․I accept that the offender was a person of prior good character prior to the commission of these offences before me, with no prior criminal history. This is a relevant matter on sentence.
Pleas of guilty
85․The offender entered pleas of guilty on 13 March 2024, at the ACT Magistrates Court.
86․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
87․Counsel for the prosecution submitted that while the offender’s plea had utilitarian value and prevented the need for a trial, the pleas were not made at the earliest opportunity.
88․Counsel for the offender referred to the utilitarian value of a plea, which largely depends on the timing: Monfries v The Queen [2014] ACTCA 46; R v Toumo’ua [2017] ACTCA 9. Further, counsel for the offender noted the pleas were entered prior to committal.
89․Counsel for the prosecution submitted that as the pleas were entered following an initial plea of not guilty and the preparation of a brief of evidence, this meant the plea was not entered at the “earliest” opportunity. Counsel for the prosecution submitted that a 20% discount would be more appropriate. There is force to this submission.
90․Taking into account the matters outlined above in my view a discount of 20% for the pleas of guilty to both charges is appropriate in this case.
Time in custody
91․The PSR noted that the offender was remanded in custody from 23 June 2023 until released on bail on 5 July 2023.
92․The offender spent 19 days in custody solely referable to these offences. This was confirmed by email to my associates by the parties on 4 November 2024, the day of sentencing.
Comparable cases
93․As is well recognised in the criminal law, bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
94․There are a number of decisions of this court relating to offenders who have been sentenced for similar offences.
95․Counsel for the prosecution noted that while the facts and circumstances of trafficking offences can vary widely, it is “apparent” that trafficking in quantities such as in the current matter will “ordinarily attract a substantial term of imprisonment.”
96․As to range, counsel for the prosecution referred to Mossop J in DPP v Cummins [2023] ACTSC 127 (Cummins) at [24]:
Counsel for the prosecution provided a table summarising sentencing decisions for charges of trafficking in cocaine. Those decisions indicate sentences following guilty pleas ranging from 12 months’ imprisonment to be served by way of an intensive correction order through to six years’ imprisonment. A number of sentences imposed following guilty pleas were in the range of two to three years.
97․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
98․I was referred to the following cases by the prosecution, which the prosecution noted involved offenders trafficking in “substantial quantities of cocaine”:
(a)DPP v Cummins [2023] ACTSC 127 (139 g of cocaine).
(b)R v Nchouki [2022] ACTSC 227 (Nchouki) (408.478 g of cocaine).
(c)R v Harmouche [2020] ACTSC 194 (Harmouche) (389.23 g of cocaine).
(d)R v Pahl [2022] ACTSC 113 (Pahl) (352.279 g of cocaine).
(e)R v Mackinder [2021] ACTSC 176 (Mackinder) (503.076 g of cocaine).
99․Attached as an annexure to this judgment is a summary of the cases referred to by the prosecution. I take into account the would-be comparable cases to the extent possible, considering the differences that perforce must exist in every individual case that comes before the Court.
100․I note that counsel for the offender submitted that Pahl is the more comparable case having regard to the quantity of drugs and motivation for the trafficking.
Statutory and other relevant considerations
101․In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above both as to objective seriousness and subjective matters, that is in particular to the offending and the offender.
102․The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations. The victim in drug trafficking is the broader community.
103․As with every sentencing exercise, the Court must, as is well established, pay careful attention to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
104․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment while called for could be served by way of ICO. Counsel for the offender submitted that the relationship between the offender’s drug use and his offending, as well as the benefits to society in addressing these factors justify “in a substantial way” an imposition of an ICO. As stated earlier, I agree on the facts of this case that these matters justify that the imposition of a sentence of imprisonment, should be ordered to be served by way of ICO. Further, in my view, underlining the importance of sentencing factors of deterrence and punishment, tend towards additionally including a community service work condition along with the offender’s term of imprisonment to be served by way of ICO.
105․There is no doubt as counsel for the prosecution submitted that general deterrence is “highly relevant” in matters involving drug trafficking: Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 at [6] (Higgins CJ, Connolly and Cowdroy JJ); Nchouki at [31] (Mossop J).
106․While the need for general and specific deterrence, as well denunciation, leads to the conclusion that only a term of imprisonment is appropriate in this case, nevertheless, the suitability of the sentence being served by way of ICO is clear, in my view, in this case, as the importance of rehabilitation is also underlined in this case.
107․The prosecution submitted against an ICO referring to the decisions of Harmouche and Nchouki.
108․In Harmouche, Murrell CJ observed that, given the seriousness with which the Court regards offences of drug trafficking, it was necessary that at least a brief period of the sentence in that case be served by way of full-time imprisonment: Harmouche at [42]. In this regard I note that the offender has spent time in custody.
109․Further, in Nchouki, Mossop J made the following observations at [34]:
Ultimately the objective seriousness of the offending and consequent need for general and specific deterrence is such that I consider that a period of full-time custody is required and therefore that a disposition by way of intensive correction order is not appropriate. However, I am mindful that a long period of imprisonment will not well serve the offender or the community. Indeed, a long period in custody may well set back his rehabilitation as a result of the associations that he makes in custody, particularly in circumstances where his brothers, who share his surname, have spent time in custody. For these reasons it is appropriate that the sentence be suspended after a short period of imprisonment, recognising, ultimately, the strong interest of the community in his rehabilitation…
110․I note that the offender has spent 19 days in custody and that therefore there has been a period of some full-time custody. I have reviewed the cases of Harmouche and Nchouki. Nevertheless, in this case serving the term of imprisonment by way of ICO is called for, on the evidence, before me. Not to do so is to ignore the importance of rehabilitation as a sentencing factor along with the other sentencing factors including deterrence and denunciation. Each case turns on its own facts in the process of undertaking instinctive synthesis and individual sentencing.
Rehabilitation
111․Rehabilitation is an important consideration having regard to the offender’s previous good character, his remorse and his significant progress towards rehabilitation (albeit the progress has not been uniformly linear). I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] that community protection is likely better served by rehabilitation and that rehabilitation is in the public interest.
112․I further note that the ICOAR observed that the offender’s risk of reoffending may be lowered by further alcohol and drug treatment.
113․The offender has the protective factors that will support his rehabilitation, including employment and social supports. The offender has support from his wife, as well as from his two brothers and his parents.
114․I note the germane and incisive observations of Refshauge J in Saga v Reid and Collett [2010] ACTSC 59 at [89], concerning the importance of allowing the opportunity for rehabilitation and realistically appreciating the non-linear nature of rehabilitation from drug-addiction:
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.
(emphasis added)
115․Ultimately, counsel for the offender submitted that the offender has good prospects of rehabilitation, and that community protection and reduction of harm to the community is addressed by supporting the offender’s prospects of rehabilitation: see Hill at [18]. On the evidence in this case, I agree with this submission; See R v Osenkowski (1982) 30 SASR 212 and R v Ang [2014] ACTCA 17 as an offender at a crossroads of life, as this offender clearly is, should be supported in their quest to leave addiction behind.
116․I note that the evidence of progress in rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].
Totality and Concurrency
117․When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, and totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In this process, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
118․In relation to concurrency, I note O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26], and Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27] concerning where offences are part of the one episode of criminality as here in this case.
119․In written submissions, counsel for the prosecution correctly accepted that the proper application of the principle of totality “will inevitably result in some degree of concurrency” between the two offences, particularly if the Court accepts that the proceeds of crime were derived from the trafficking offence. However, counsel for the prosecution submitted that a significant degree of concurrency would not be appropriate as “different offences need to be reflected” in the offender’s head sentence.
120․By contrast, counsel for the offender submitted that a substantial measure of concurrency is appropriate, given that the offences arose from a single course of conduct which have common features: see Pearce at [40]. Counsel for the offender noted that the trafficking of drugs “commonly occurs” through the sale of drugs, which involves exchange of money. Counsel for the offender submitted that any money derived or realised for such a sale is, by its nature, proceeds of crime. There is force to this submission on the facts of this case.
121․In my view, there should be a significant degree of concurrency, taking into account, the relevant authorities discussed above and the facts concerning the two offences. The degree of concurrency ought not to be complete concurrency. Nevertheless, concurrency should not be insignificant. Significant concurrency is called for in this case.
Sentence
122․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including self-evidently the objective seriousness of the offence and subjective matters concerning the offender. These are serious and related offences. This offender is a man at a crossroads in his life; it is a turning point, on the evidence, and I take this into account on sentence notwithstanding the seriousness of the offences.
123․The appropriate sentence for the charge of trafficking in a controlled drug other than cannabis, namely cocaine (CC2023/6411) is 2 and a half years (30 months) of imprisonment, reduced to 2 years on account of the plea of guilty (discount 20% for the plea of guilty). The offence will be backdated to commence on 17 October 2024 to account for the time already spent in custody: see by way of example DPP v Figura (No 2) [2019] ACTSC 222 at [16]; DPP v Vincent (No 2) [2023] ACTSC 379 at [62].
124․The appropriate sentence for money laundering (CC2023/6751) is 10 months of imprisonment, reduced to 8 months on account of the plea of guilty (discount 20%).
125․There should be an overlap of 6 months between both sentences taking into account the facts and the principles of concurrency discussed at [117] – [121].
126․As I noted in R v Elson [2020] ACTSC 264 at [85], it must be remembered that:
…[A]lthough the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a “significant punishment, coming second only to a term of full-time imprisonment:” R v Srna [2018] ACTSC 337 at [13].” Its content will require strict adherence and if this is not followed could result in a period of full-time custody.
127․As referred to at paragraph [78], a community service condition will be ordered of 250 hours to be served during the period of the ICO.
128․The total aggregate sentence of imprisonment is 2 years 2 months commencing on 17 October 2024 and ending on 16 December 2026 to be served by way of ICO.
129․As stated by Mossop J in DPP v Vincent (No 2) [2023] ACTSC 379 at [70] dealing with a matter by way of ICO involves a risk of failure. Nevertheless, the benefit of an ICO is “that the consequences of such failures are reasonably predictable and provide every incentive” for the offender to continue in this case to rehabilitate himself.
Orders
130․For these reasons I make the following orders:
(1)On the charge of trafficking in a controlled drug other than cannabis, namely cocaine (CC2023/6411), contrary to s 603(7) of the Criminal Code 2002 (ACT) the offender is convicted and sentenced to 2 years imprisonment that will commence on 17 October 2024 and expire on 16 October 2026.
(2)On the charge of money laundering (CC2023/6751), contrary to s 114B of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 8 months imprisonment commencing on 17 April 2026 and expiring on 16 December 2026.
(3)The sentence of imprisonment imposed pursuant to orders 1 and 2 is to be served by way of intensive corrections order subject to the core conditions and a condition that the offender perform 250 hours of community service.
| I certify that the preceding one-hundred and thirty [130] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 5 November 2024 |
ANNEXURE OF COMPARABLE CASES
DPP v Cummins [2023] ACTSC 127
1․In DPP v Cummins [2023] ACTSC 127 the offender was sentenced to two years and two months. The non-parole period was eight months and 30 days.
2․The case involved one count of trafficking in a controlled drug other than cannabis contrary to s 603(7) of the Criminal Code and one count of money laundering contrary to s 114B of the Crimes Act. The offender was 31 years old at the time of the offences.
3․The offender was convicted of trafficking in 139g of cocaine and possessing proceeds of crime. Located during the warrant was also $6,460 and other indicia of trafficking.
4․The offender pleaded guilty to the charges in the ACT Supreme Court. The charges had been committed to the Supreme Court for trial. The plea was entered prior to a trial date being set and was indicated at a callover.
5․Mossop J found the objective seriousness of the trafficking offence to be in the mid-range. The amount of drugs found was well above the trafficable quantity and there was evidence of active measures in place to sell the drugs. Further, it was clear that the offender was selling the drugs for profit, despite also being also a long-term user of the drugs.
6․The money laundering charge was considered to be below the mid-range of objective seriousness, as the amount in question was “significant” but the offence provision is unlimited in scope.
7․The offender had a prior history of driving offences at the time he committed the trafficking offence. He was unsuitable for an intensive corrections order.
8․He was sentenced to 23 months imprisonment for the trafficking offence and six months and 15 days imprisonment for the proceeds of crime offence (partially cumulative).
R v Nchouki [2022] ACTSC 227
9․In R v Nchouki [2022] ACTSC 227 the offender was sentenced to 24 months.
10․The case involved one count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code, and three other driving offences.
11․The offender was sentenced for trafficking in 408.478g of cocaine.
12․The offender pleaded guilty to the four driving related offences in the Magistrates Court. The offender pleaded guilty to the trafficking offence following a criminal case conference. A discount of 20 percent was applied on account of the plea of guilty to the trafficking offence.
13․Mossop J held the offending to be in the mid-range of objective seriousness. The quantity of cocaine possessed was substantial. The offender was a mid-level dealer supplying to others who then on-sold the cocaine. The offender was doing so to support his own habit as well as to pay drug debts. The evidence did not establish that the offender was profiting from the dealing in a way that went beyond those purposes.
14․The offender had a problematic history with alcohol, as well as other drugs including cocaine and was diagnosed with a stimulant-use disorder, as well as major depressive disorder. He had a limited criminal history of three driving related matters.
15․On the charge of trafficking in a controlled drug other than cannabis, namely cocaine the offender was convicted and sentenced to imprisonment for two years commencing on 22 August 2022 and ending on 21 August 2024. The sentence of imprisonment was to be suspended after the offender had served four months of imprisonment upon him entering into an undertaking to comply with good behaviour obligations.
R v Harmouche [2020] ACTSC 194
16․In R v Harmouche [2020] ACTSC 194, the offender was sentenced to a term of imprisonment of 14 months, suspended after the offender served five months. The offender was 27 years of age at the time of the offending.
17․The offender pleaded guilty to one charge of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code.
18․The offender was sentenced for trafficking in 389.23g of cocaine.
19․The plea was entered in the Magistrates Court following an initial plea of not guilty and the preparation of a brief of evidence by the prosecution.
20․The offender was a heavy cocaine user. As the offender’s role in the trafficking, the offender had informed a clinical psychologist that he had not received cash payments and held the cocaine at his house on behalf of others, in return for being able to use the cocaine when he needed it. The offender told the psychologist he was consuming approximately two grams of cocaine every day. Counsel for the offender submitted that the offender played no real role in the distribution of the substance, although the offender believed that he was holding it for the purpose of distribution by others. Murrell CJ was satisfied that a substantial proportion of the drug being held by the offender was held for the purpose of sale to other persons. However, the offender’s precise role in the sale of the drug was unable to be determined.
21․The offender had no prior criminal record, and had no disadvantaged background, and an employment history. In sentencing the offender, Murrell CJ stated that the purposes of general deterrence, personal deterrence and denunciation would not adequately be met if an intensive corrections order were made.
22․A term of imprisonment of 14 months was imposed, suspended after the offender served five months.
R v Pahl [2022] ACTSC 113
23․In R v Pahl [2022] ACTSC 113, the offender was sentenced to 19 months imprisonment to be served by way of intensive corrections order with 240 hours of community service.
24․The offender pleaded guilty to one count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code as well as two other offences relating to firearm storage.
25․The offender pleaded guilty to all of the offences at the matter’s fourth mention in the Magistrate’s Court. There was initially a plea of not guilty and a brief was prepared. However, Mossop J held that the plea was at an early stage and warranted a discount of between 20 and 25 percent.
26․Mossop J found the offending to be at the low end of objective seriousness for this offence. The offender had a problematic history of cocaine use and was engaged with counselling at the time of sentence. The offender was a user and dealer who sold for both financial gain and to support his habit. The quantity of cocaine was substantial, the trafficable quantity being 6 grams and the commercial quantity being 3 kg.
27․The offender had a minimal prior criminal history of three driving matters.
28․On the trafficking offence, the offender was sentenced to 19 months imprisonment to be served by way of intensive corrections order with 240 hours of community service, in addition to a $20,000 fine.
R v Mackinder [2021] ACTSC 176
29․In R v Mackinder [2021] ACTSC 176, the offender was sentenced to two years for an offence of trafficking in a controlled drug other than cannabis, namely cocaine. The offender was 31 years old at the time of the offences.
30․The offender entered a plea of guilty. It was not an early plea, but nevertheless has “utilitarian value” and a 15% discount was applied.
31․The offender was convicted of trafficking in 503.076g of cocaine, by way of being the courier in transporting the cocaine. The offender had no prior criminal history and had a stable work history, with no relevant criminogenic factors other than a cocaine addiction.
32․The offender was sentenced to two years, six months imprisonment to be served by way of intensive corrections order, with 300 hours of community service.
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