R v BM
[2019] ACTSC 281
•14 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BM |
Citation: | [2019] ACTSC 281 |
Hearing Date: | 14 October 2019 |
DecisionDate: | 14 October 2019 |
Before: | Elkaim J |
Decision: | See [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis namely heroin – guilty plea |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 42 Magistrates Court Act 1930 (ACT) s 90A |
Cases Cited: | R v Hoang [2016] ACTSC 183 |
Parties: | The Queen (Crown) BM (Offender) |
Representation: | Counsel L Marino (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 138 of 2019 |
ELKAIM J:
On 12 June 2019, the offender entered a plea of guilty in the Magistrates Court to one charge of trafficking in a controlled drug other than cannabis, namely heroin. The matter was committed to the Supreme Court for sentence on the same day pursuant to s 90A of the Magistrates Court Act 1930 (ACT). This offence is contrary to s 603(7) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years imprisonment and/or fine of $160,000.
The offender was born in Yugoslavia, as it then was, in 1966. She came to Australia in 1969. She apparently did not get on very well with her parents. She ran away from home when she was 15 years of age and again a year later. She has lived in Canberra since 2014.
The offender has two children from two separate relationships. She currently lives with one of her children. Her relationships have been marred by violence. In July 2018 her partner died as a result of a drug overdose. She found his body. This was no doubt a traumatic experience.
The offender left school during Year 11. She has had a bad business experience and unfortunately does not have any qualifications. She is reliant on Centrelink benefits.
The offender has been using heroin since her early twenties. She has sold heroin in order to fund her own use of it. She is currently on a methadone program.
A psychological report says that the offender has suffered from severe depression and anxiety. However she has improved since treatment, which commenced in January of this year. She is likely to require long-term psychological therapy.
Other than some traffic matters in Queensland, the offender does not have a criminal record. This entitles her to a degree of leniency. Her plea of guilty also entitles her to a discount on her sentence.
On 26 February 2019 a search warrant was issued permitting the search of a Ford motor vehicle. On 1 March 2019 police stopped this vehicle. The offender was the driver and sole occupant. The police search of the vehicle located 28.880gms of heroin. A trafficable quantity is 5gms.
It is clear from the admissions made to the police during the execution of the search warrant that the offender intended to distribute the heroin, at a price, to other persons. This is a significant aggravating factor. It calls into play the need for general deterrence because the use of drugs, whether marijuana or, as in the case of this stronger drug, has such a deleterious and malicious effect on users.
I cannot say the whole of the possession of the heroin was for pure greed, because the offender was a user herself. Nevertheless, the circumstances come close to that description. It is also clear that the offender’s position in the hierarchy of the trafficking was at a fairly low level. This does not of course degrade the culpability of her distribution of the drug.
As already mentioned, the offender had significantly more than a trafficable quantity of heroin in her possession. Applying standard data the value of the heroin falls within the very wide range of $5,776 up to $20,216. However one might expect that if the offender paid $10,000 for the drug she expected some profit. I assess the objective seriousness of this as at about medium for this type of crime.
The written submissions by the Crown very fairly draw my attention to other matters, for purposes of identifying sentencing patterns, which are both more serious and less serious than the current offending. Thus the Crown pointed out that the sentence of 18 months imprisonment, suspended after three months, in R v Hoang [2016] ACTSC 183 was more serious than this case because it involved 70.6gms of heroin.
Another illustration of the Crown’s fair approach is in acknowledging the “experiences and difficulties” which the offender has endured and which “the court might properly consider [are] mitigating circumstances”.
The submissions also point out that “the offender has sought and continues to seek assistance for her health and well-being - both physical and mental. This is to her credit. Rehabilitation may still be a consideration relevant to sentencing”.
Another very significant feature of this case is that the offender has provided assistance to law enforcement authorities. Taken with her plea of guilty she is entitled to a significant discount on her sentence, which I assess at 35%.
The Crown concluded her written submissions stating that:
Nothing but a sentence of full-time imprisonment is warranted for the offence before the court. The sentencing principles would not be adequately addressed by the mere imposition of a fine and good behaviour order. How a sentence of imprisonment should be served is a matter for the court.
I agree with all of these statements.
One of the options for the service of a sentence of imprisonment is by way of an Intensive Correction Order. An assessment for such an order was prepared and is dated 11 October 2019. The report says that the offender is suitable for such an order. I intend to proceed in this way and note it is an approach advocated on behalf of the offender.
I think the appropriate term of imprisonment is four years, which after the reduction of 35% becomes, with some rounding off, two years and seven months.
I make the following orders:
(a)In relation to the charge of traffic in a controlled drug other than cannabis (CC2019/4443), the offender is sentenced to imprisonment for a period of two years and seven months to commence on 14 October 2019 and end on 13 May 2022.
(b)The term of imprisonment is to be served by intensive correction in the community. The offender is to comply with the core conditions of the intensive correction order under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).
(c)In addition to the core condition the offender is to attend such programs dedicated to the use of drugs and rehabilitation as she is directed by the Director-General of the Department of Corrective Services.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 14 October 2019 |