R v Becker (Aka Taylor)
[2004] SADC 191
•22 December 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BECKER (AKA TAYLOR)
Reasons for Sentence of His Honour Judge Smith
22 December 2004
CRIMINAL LAW
Sentence - drug offences - possession of fantasy and methylamphetamine for sale – discussion of relevance of drug addiction – offences part of ongoing street trading – starting place 5 to 7 years imprisonment – recent offending aggravated by being committed whilst on bail for earlier offending – the fact that defendant already embarked upon his own rehabilitation is a relevant mitigating circumstance – sentence 7½ years imprisonment with non-parole period of 4 years.
Controlled Substances Act 1984 s32(1)(e), 52A; Summary Offences Act 1953 s41(1); Bail Act 1985 s17; Criminal Law (Sentencing) Act 1988 s18A; Criminal Assets Confiscation Act 1996 s11, referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Le (2001) 212 LSJS 208; R v C (1998) 72 SASR 391, considered.
R v BECKER (AKA TAYLOR)
[2004] SADC 191
The defendant in this matter is Matthew Paul Becker. He is also known as Mark Taylor (“the defendant”).
There are three files - I will deal with each of them chronologically.
DCCRM-03-603 Information 14 July 2003 (“October 2002 offences”)
The defendant was charged with three offences which I summarise as follows:
1.On the 5.10.02 at Adelaide knowingly had 74 grams of Fantasy in his possession for the purpose of sale (s32(1)(e) of the Controlled Substances Act 1984)
2.Between 29.9.02 and 6.10.02 at Adelaide and other places knowingly took part in the manufacture of methylamphetamine (s32(1)(e) of the said Act); and
3.On the 5.10.02 at Adelaide was in unlawful possession of $950.00 (s41(1) of the Summary Offences Act 1953)
On the 18th May 2004, prior to the empanelling of a jury, the defendant was arraigned and pleaded not guilty to counts 1 and 3. A nolle prosequi was entered in respect of count 2. The defendant then applied pursuant to Rule 9 to exclude the evidence of the Crown as to counts 1 and 3 on the basis that it was procured as a result of an unlawful search of his motor vehicle. An enquiry on the voir dire took place. On the 19th May 2004 I dismissed the application. So the evidence resulting from the search was to be admitted. However, before the empanelling of a jury on the following day, the 20th May 2004, the defendant pleaded guilty to counts 1 and 3. Submissions on penalty were delayed to enable some further charges to be brought into the Court. Then further delays were caused because defendant’s counsel, Mr Wells, was concerned that by reason of the effects of drugs the defendant was unfit to instruct him.
By the time submissions on penalty were made on the 29th September 2004 two other files were also before the Court and the defendant’s fitness improved. I turn to the other files.
DCCRM-04-852 Information 13th September 2004 (“January and March 2004 offences”)
The defendant was charged with five offences which I summarise as follows:
1.On 31.01.04 at City Parklands Motel in Adelaide he knowingly had a bag containing 1.4 grams of methylamphetamine in his possession for the purposes of sale (s32(1)(e) Controlled Substances Act 1984);
2.On 31.01.04 at City Parklands Motel in Adelaide knowingly had a bag containing 1.21 grams of methylamphetamine in his possession for the purposes of sale (s32(1)(e) of the said Act);
3.On 31.01.012 at City Parklands Motel in Adelaide knowingly had a bag containing 1.15 grams of methylamphetamine in his possession for the purposes of sale (s32(1)(e) of the said Act);
4.On 31.01.04 at City Parklands Motel in Adelaide knowingly had a bag containing 1.31 grams of methylamphetamine in his possession for the purpose of sale (s32(1)(e) of the said Act); and
5.On 20.03.04 at Dulwich knowingly had two small deal bags of respectively 1.91 grams and 0.62 grams of methylamphetamine in his possession for the purpose of sale (s32(1)(e) of the said Act).
On the 29th September 2004 the defendant was arraigned and pleaded guilty to counts 1 and 5 which pleas were accepted in answer to the Information.
DCCRm-04-1007 (Magistrates Court complaint of 9th August 2004 (“Breach of Bail offence”)
The defendant was charged on Information as follows:
·On 27th day of June 2004 at Clarence Gardens, Adelaide, failed to comply with a term or condition of a bail agreement entered into by him at Adelaide on the 2nd April 2004 which required him to be drug free (s17 of Bail Act 1985);
On the 29th September 2004 the defendant pleaded guilty to the above summary offence.
The penalties
The maximum penalty for the drug offences, each of them, is 25 years imprisonment and/or a fine of $200,000. The penalty for the unlawful possession is a maximum of $10,000 or imprisonment for two years. For the breach of the bail agreement the maximum penalty is also $10,000 or imprisonment for two years.
Circumstances of Offending
At 5.20 am on the 5th October 2002 the defendant was stopped at a random breath testing station on Wakefield Street, Adelaide, and police discovered upon the defendant alighting from his vehicle, 74 grams of Fantasy in a bottle in the lower shelf of the driver’s side front door. On searching the person of the defendant police found in addition to $65 and some change in his jacket a discreet package containing $950.00.
The street value of Fantasy which is the subject of the declaration of Stephen Taylor asserts that 1ml of Fantasy will cost from $3 to $6 and a litre will cost from $1500 to $2000. There was no “street valuation” evidence based on weight but counsel agreed that 74 grams of Fantasy is the equivalent of 150 mls. So the value of the 74 grams is from $450.00 to $900.00.
Such constituted the facts of the October 2002 offences.
As at the 31st January 2004 the defendant was under police surveillance. On that afternoon police raided a motel room at City Parklands Motel at 47 Pulteney Street, Adelaide. The room was occupied by the defendant and another person. Police discovered in the room three vacuum sealed bags of powder containing respectively 1.14, 1.21 and 1.15 grams of methylamphetamine. Further, when police searched the person of the defendant they found on him a bag containing 1.31 grams of methylamphetamine. The defendant by his plea to count 1 accepts that two of the bags discovered in the room, as opposed to on his person, were for sale. Such is the detail relating to the January 2004 offence and therefore involves approximately 2.5 grams of methylamphetamine.
At about 12.59 am on Saturday the 20th March 2004 police officers saw a Toyota Celica motor vehicle travelling on Greenhill Road, Glenside with only one headlight operating. The defendant was the driver of that vehicle. They stopped the vehicle on Stuart Road in Dulwich. In the course of inspecting it they discovered drug paraphernalia. Upon searching the person of the defendant they found two small deal bags of methylamphetamine paste containing 1.91 grams and 0.62 grams of methylamphetamine. Those facts constitute the March 2004 offence and so involve 2.53 grams of methylamphetamine.
The declaration of Detective Robert Beattie indicates that the street price of 1 gram of pure amphetamine is $200 and 0.1 of a gram known as a point would sell for $50.
On the 2nd April 2004 the defendant was granted home detention bail. The bail conditions included that the defendant would not take alcohol or non‑prescribed drugs. In breach of the conditions of the bail a urine sample taken on the 27th day of June 2004 tested positive for methylamphetamine and codeine. Such constituted the brief facts of the breach of bail offence.
Personal circumstances
As to the defendant’s personal circumstances I indicate that I have before me and have taken into account the following:
·The antecedent report;
·Two reports from Ms Lesley Work of the Drug and Alcohol Assessment and Counselling Services dated respectively 27th June 2004 and 27th September 2004;
·Report from Dr Craig Raeside dated 18th September 2004;
·Report from Dr Richard Barbour dated 28th May 2004;
·Three character references; and
·Submissions of counsel, Mr J Wells.
Though the antecedent report runs to some three pages there is no previous conviction for drug trading or anything akin thereto and nor has the defendant actually been sentenced to imprisonment, though he has spent time in gaol on remand. In summary there is low level offending on almost an annual basis ranging from offences of assault through receiving to cannabis offences.
The defendant is 31 years old and was born and raised in Adelaide. He has a younger brother. Initially he had a privileged upbringing. His parents were relatively affluent. He was expelled from Pulteney Grammar School at the age of 15 for growing marijuana. Again at about that time his parents split up. His mother eventually remarried and the defendant was exposed to his step-family who were, according to all accounts, hardened criminals. He began to come to police attention. There was some respite when his step-siblings or some of them were extradited back to Western Australia to answer criminal charges there. The defendant reached but did not complete year 12 at Marryatville High School. He commenced work for the Electoral Office. His father was the Federal Electoral Commissioner. At about the age of 18 he went to Alice Springs and worked there. After two years there he returned to Adelaide and became involved in some entrepreneurial ventures.
By this time alcohol and drug abuse had set in and his step family were again exerting considerable adverse influence over him. He settled down to chronic and heavy use of amphetamines and in order to finance his own habit he not only sold amphetamine but also became involved in manufacturing. He sporadically used other illicit drugs such as Ecstasy, Fantasy and Cocaine. Perhaps his use of Fantasy was not so sporadic. He told Ms Work that he regularly used it in conjunction with amphetamine. He also became involved in prostitution and his last relationship was with a drug using prostitute. There was a previous worthwhile relationship with a woman and now that maybe in the process of being rekindled.
So in all the defendant has come to this offending as a heavy drug addict and dealer. It is a wonder that he has escaped the attention of the police and criminal justice system for so long in recent years.
Dr Raeside was unable to find any evidence of a psychiatric disorder but at page 8 of his report:
“... I was unable to find any evidence of a current psychiatric disorder. However, undoubtedly, he has experienced both drug (amphetamine) induced psychotic episodes in the past and probably also experienced poor mental health due to long term heavy amphetamine use. I thought that some of the features on interview of his mental state were consistent with his long term amphetamine use, although not to the point of formally being a psychiatric disorder.
Despite the previous offending and adolescent difficulties I did not believe there was sufficient evidence to warrant a diagnosis of a personality disorder.”
Dr Raeside endorsed the recommendations of Ms Work to the effect that the defendant undertake “intensive drug rehabilitation programs” but beyond that he did not recommend any formal psychiatric treatment.
Counsel for the defendant, Mr Wells, emphasised the marked improvements in the defendant since he went into custody on the 7th August and pointed in particular to the reports of Ms Lesley Work as demonstrating that the defendant was himself embarked upon his own rehabilitation.
Indeed when he first presented to Ms Work on the 18th June 2004 he was clearly in a parlous state. That was obvious in the voir dire enquiry. He did however deny the current use of illicit drugs to Ms Work at her first meeting with him. However, in her second report dated the 27th September 2004 Ms Work described the defendant as a vastly different man to the first occasion. In particular, she said:
“Mr Becker’s general appearances showed a man that although he had gained a significant amount of weight, looked fit and healthy. While his speech was still somewhat rapid, he was not thought disordered and showed no clinical sign of drug use. He was focussed, showed insight into his current situation and stated he was willing to accept the consequences of his past actions. Mr Becker indicated that he had spent some time thinking about his future and some of the challenges ahead of him before he could fully embrace a drug and crime free lifestyle.”
I accept, based on Ms Work’s assessment, that the defendant has refrained from using illicit drugs since his incarceration on 7th August 2004. He is intent on maintaining his abstinence and presently is determined to undergo long term rehabilitation to prevent relapses. A family friend, Mr Dean Woods, who runs a conveyancing business will give him full-time work and undertake job training to facilitate it.
There is other support for the defendant arising from the rebuilding of his relationship with his father and as I have mentioned with a former partner who visits him regularly in gaol.
So, I am prepared to proceed on the basis that the defendant is positively enroute to achieving some measure of rehabilitation.
Sentencing Considerations
The defendant is entitled to some discount for the rather belated plea of guilty to the October 2002 offences. He is entitled to a full discount for his pleas of guilty to the January and March 2004 drug offences since those pleas were entered at an early opportunity.
I note that he has been in custody since the 7th August 2004 and prior to that he was on home detention for some 4 months.
The amounts of drug here are small. That is commonplace. What is significant is that the defendant is a street retailer.
Drug addiction by itself is little or no ground for lenience (see R v Mangelsdorf (1995) 66 SASR 60 per Doyle CJ at 64-65). However, I accept that the defendant’s chronic and heavy drug use has been responsible for his trafficking as he needed to finance the feeding of his own habit. That is not to mitigate the gravity of the offending but the offending would be more serious if the motivation to sell arose purely and simply from greed.
Further, the gravity of the drug offences must be seen against the background of illicit trading. The defendant has been an habitual drug dealer. Of course while he can only be sentenced for the charged offending, the offences have emerged from ongoing commercial trading in drugs, albeit trading which arises from a need to support an addiction.
General and personal deterrence are paramount sentencing considerations for these trading offences. The penalties prescribed by Parliament indicate its intention that the courts impose penalties which mark the gravity of trading in these illicit substances. They generate much misery and criminal behaviour.
Methylamphetamine and Fantasy (ie 4-hydroxybutanoic acid) are regarded as middle of the road drugs of dependence. The information about the harmful effects of these drugs is now such that I consider it inappropriate to characterise them so benignly. However, that is for another case and another court.
An immediate custodial penalty is required to address the gravity of this offending. The starting place is within a range of 5 to 7 years imprisonment (see R v Le (2001) 212 LSJS 208 per Doyle CJ at para 13; R v Mangelsdorf (supra); R v C (1998) 72 SASR 391). It is an aggravating feature of the January and March 2004 offences that they were committed whilst the defendant was on bail for the October 2002 offences.
I will fix one penalty for the October 2002 drug offence and the offence of unlawful possession pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA). They are part of the one criminal enterprise. In respect of the January and March 2004 drug offences I will also impose a separate single penalty pursuant to s18A of the said Act. I will deal with the bail offence separately.
Sentence
For the October 2002 offence of possessing 74 grams of Fantasy for sale and the offence of unlawful possession of $950.00 there will be a sentence of 4½ years imprisonment. If it were not for the plea of guilty after the voir dire, the sentence would have been 5 years.
For the two January and March 2004 offences of possessing methylamphetamine for sale there will also be a single sentence of 4½ years imprisonment. Again if it were not for the plea of guilty the sentence would have been 6 years. I have given here a full discount for the early pleas of guilty. However, I started at 6 years because there are two offences and they are aggravated by having been committed whilst on bail for the October 2002 offences but then ameliorated by the early plea.
For the offence of breaching the Bail Act there will be a conviction without penalty.
The periods of imprisonment for the October 2002 offence on the one hand and the January and March 2004 offences on the other will be cumulative. So subject to the application of the principles of totality the total head sentence stands at the moment at 9 years imprisonment. Having regard to the principles of totality, I reduce that sentence to 7½ years. In doing so, I have borne in mind that this is the imposition of a first sentence of imprisonment on the defendant and a sentence of 9 years could have the effect of crushing his resolve to continue with his rehabilitation measures.
I turn to the non-parole period. As emphasised above the defendant is on course to rehabilitate himself. He is also regretful of his conduct. I propose setting a lower than normal non-parole period with a view to facilitating him continuing in the community what he has begun and hopefully will continue in gaol. I therefore fix a non-parole period of 4 years.
The head sentence of 7½ years and the non-parole period of 4 years are both backdated to commence on the 7th August 2004 to take into account the time spent in custody. I decline to further discount on the basis that the defendant was subject to home detention from the 2nd April 2004 to the 7th August 2004. Indeed he failed to comply with the conditions of that bail.
Summary and conclusion
So in summary the penalties are as follows:
· For the October 2002 offences of possessing Fantasy for sale and unlawful possession
Imprisonment 4½ years
· For the two January and March 2004 offences of possessing amphetamine for sale
Imprisonment 4½ years (to be cumulative on the above period of imprisonment)
· For the breach of the bail conditions in June 2004
Conviction without penalty
Tentative Head Sentence before Discounting
9 years
Final Head Sentence after Discounting for Totality
7 ½ years imprisonment
Non-parole period
4 years
The head sentence of 7½ years and the non-parole period of 4 years are to be backdated to commence on the 7th August 2004.
I order forfeiture of the drug seized pursuant to s52A of the Controlled Substances Act 1984 and pursuant to s11 of the Criminal Assets Confiscation Act 1996 I order the forfeiture of the $950 seized on the 5th October 2002 and the $320 seized on the 20th March 2004.
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