R v Avis
[2017] ACTSC 106
•5 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Avis |
Citation: | [2017] ACTSC 106 |
Hearing Date: | 5 May 2017 |
DecisionDate: | 5 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – possession of property reasonably suspected of being stolen – unlawful possession of ammunition – possession of a prohibited substance – pleas of guilty – criminal history |
Legislation Cited: | Criminal Code 2002 (ACT) ss 324 (1) and 603 (7) Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7 |
Cases Cited: | R v Avis [2013] ACTSC 294 R v Avis [2015] ACTSC 382 |
Parties: | The Queen (Crown) Philip Terence Avis (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Lawyers (Offender) | |
File Numbers: | SCC 264 of 2016 and SCC 266 of 2016 |
ELKAIM J:
Introduction
The offender is to be sentenced for the following offences, to which he has pleaded guilty:
(a)Trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT).
(b)Possession of property reasonably suspected of being stolen contrary to s 324 (1) of the Criminal Code 2002 (ACT).
(c)Unlawful possession of ammunition contrary to s 249 (1) of the Firearms Act 1996 (ACT).
(d)Possession of a prohibited substance, namely cannabis, contrary to s 171 (1) (a) of the Drugs of Dependence Act 1989 (ACT).
In the same order, the maximum penalty for each of the above offences is:
(a)10 years imprisonment and/or a fine of $150,000.
(b)6 months imprisonment and/or a fine of $7,500.
(c)$1,500 fine.
(d)$150 fine.
The drugs and items which are the subject of the offences were found during the execution of a search warrant on 16 June 2016 at the offender’s residence in the ACT. The police discovered 18.983 g of methylamphetamine. A trafficable quantity is 6 g. A Husqvarna chainsaw, a leaf blower and an angle grinder, 49 rounds of .22 calibre ammunition and 1.1 g of cannabis were also found.
The offender was arrested following the execution of the search warrant. At that time, he was subject to two good behaviour bonds that had been imposed in the Magistrates Court on 24 September 2015. The offender has been dealt with for these breaches, but for technical reasons must be dealt with again.
The offender’s pleas of guilty were not at the earliest opportunity but were entered at a time sufficient to give them utilitarian value.
The offender has been in custody for 141 days in respect of the offences for which he is being sentenced today. Any sentence I impose on him is to be backdated to 16 December 2016.
The offender was born in the United Kingdom in 1959. He came to Australia as a child. He is a member of a close family. His parents have retired to the Gold Coast and he has siblings in Canberra.
After leaving school, the offender qualified as a mechanic. He purchased a service station and later a tow truck business. He is now retired.
The offender does not currently have a partner. He has had two daughters from a previous relationship. One of his daughters is taking an active part in supporting him.
The offender was diagnosed with depression about five years ago. He took antidepressant medication for about six months. He has a degenerative back condition.
The offender started taking amphetamines when running his service station “to pick me up”. He later switched to ice in about 2008. He initially smoked ice about once a week but his use increased to daily before being taken into custody in June last year.
The offender was referred for drug and alcohol counselling in 2009. He had 25 sessions with a social worker. Ultimately, he found the sessions to provide “quite excellent support”. The offender seems to have a realistic attitude towards the continued use of drugs and stated that he is intent on ceasing their use.
He was dealt with for trafficking in 2009 by Refshauge J. I have read the judgments of his Honour detailing the course that was adopted at that time (R v Avis [2015] ACTSC 382; R v Avis [2013] ACTSC 294). Counsel for the offender said that the judgments impacted upon the harshness of some of the comments in the Pre-Sentence Report concerning prior contact with Corrections. I agree. Perhaps more importantly however, the judgments show that the approach taken by his Honour was not as successful as was hoped for.
The offender also has a lamentable history of driving offences, in one case including driving under the influence of a drug.
This is an unfortunate tale of a responsible member of the community going off the rails because he succumbed to the use of illegal drugs. I have no doubt he will continue to break the law unless he deals with his drug problem.
In any sentencing exercise, it is necessary to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7.
It is also important to closely examine whether there is a viable alternative to imprisonment, having regard both to the nature of the offence, the requirements for deterrence (both personal and general), the prospects of re-offending and the demands of the community to see that offenders are appropriately punished for serious crimes.
The Crown has provided me with a list of comparable cases. The difficulty with the list is to identify facts that are even roughly comparable. What I have taken into account are the principles referred to by the Crown in sentencing for these types of matters. Some of the factors to be considered include: the role of the offender; the weight of the drug; and the motivation for the offence. In this case, the offender’s role was of a low level dealer, the weight of the drug was of medium consequence and the motivation for the offence fitted more into the description of need than of greed. On this basis, I think the offence is of approaching objective medium severity.
As is reflected in the maximum penalty, the trafficking offence is by far the most serious of those committed by the offender. It is particularly serious because it suggests that the offender has been making drugs available to other people. The dispersing of harmful drugs must be taken particularly seriously by the courts.
The offender said an Intensive Corrections Order was a viable option. I do not think so. The history of this offender, in particular the manner in which he was dealt with by Refshauge J, means that continued full-time imprisonment is the only real alternative. Again, I stress the seriousness with which the trafficking of illicit drugs must be taken.
As far as the transfer offences are concerned, it was accepted that they arose from generally the same circumstances as the trafficking offence so that any term of imprisonment could be concurrent.
In arriving at terms of imprisonment, I have applied a discount of approximately 10 per cent to reflect the pleas of guilty.
I make the following orders:
(a)For the offence of trafficking in a controlled drug, other than cannabis, the offender is sentenced to a term of imprisonment of twelve months commencing on 16 December 2016 and ending on 15 December 2017.
(b)For the offence of possession of property reasonably suspected of being stolen, the offender is sentenced to a term of imprisonment of three months to be served concurrently with the sentence in the preceding paragraph, commencing on 16 December 2016 and ending on 15 March 2017.
(c)For the unlawful possession of ammunition, the offender is fined $250, with no time to pay.
(d)For the possession of cannabis, the offender is fined $50, with no time to pay.
(e)In respect of the Good Behaviour Order dealt with on 13 July 2016 by Magistrate Cook, the offender is re-sentenced by the taking of no further action.
(f)In respect of the suspended sentence order dealt with on 13 July 2016 by Magistrate Cook, the offender is re-sentenced by the taking of no further action.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: Date: 5 May 2017 |
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