R v Butler
[2020] ACTSC 170
•8 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Butler |
Citation: | [2020] ACTSC 170 |
Hearing Dates: | 3 February; 3 April 2020 |
DecisionDate: | 8 May 2020 |
Before: | Burns J |
Decision: | See [56]–[61] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts trafficking in a controlled drug – pleas of guilty – consideration of mental impairment and moral culpability – reasonable prospects for rehabilitation – parity – consideration of intensive correction order |
Legislation Cited: | Criminal Code 2002 (ACT) s 603(7) Criminal Code Regulation 2005 (ACT) Crimes Sentencing Act 2005 (ACT) s 7 |
Parties: | The Queen (Crown) Christopher John Butler (Offender) |
Representation: | Counsel H Roberts (3 February and 3 April 2020); M Lucero (8 May 2020) (Crown) K Ginges (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offender) | |
File Number: | SCC 254 of 2019 |
BURNS J:
Christopher Butler, you appear before me today for sentence on three charges of trafficking in a controlled drug other than cannabis. For convenience, I will refer to each of the charges by the number allocated to the charge in the ACT Magistrates Court:
· Charge CC5485/2018, is a charge of trafficking MDA on 5 April 2018;
· Charge CC7437/2018, is a charge of trafficking cocaine on 21 April 2018; and
· Charge CC7438/2018, is a charge of trafficking MDMA on 21 April 2018.
Each of these offences is contrary to s 603(7) of the Criminal Code 2002 (ACT) and carries a maximum penalty of 10 years' imprisonment, a fine of 1000 penalty units, or both.
You entered pleas of guilty to these charges in the ACT Magistrates Court on
27 September 2019 after initially pleading not guilty. You were committed for sentence to this Court. You came before me on 3 February 2020, at which time you adhered to your pleas of guilty. After hearing evidence and submissions from counsel on that date, the matter was further adjourned to 3 April 2020 to enable an assessment for an Intensive Correction Order to be prepared. On that latter date, the
Intensive Correction Order Assessment Report was tendered together with the report by a clinical psychologist and certain other material.
I accept that your pleas of guilty were relatively early and they certainly had significant utilitarian value. They were not, however, entered at the earliest opportunity and some diminution of the utilitarian value is justified by the need for the prosecution to prepare a brief in the ACT Magistrates Court in contemplation of a contested hearing. I will reduce the otherwise appropriate sentences by approximately 20 per cent because of your pleas of guilty.
The facts
Prior to 5 April 2018, police believed that your co-offender was involved in substantial drug trafficking in the ACT. Telecommunications records showed that on
15 March 2018, you travelled to Sydney, New South Wales, and returned to the ACT the following day. I interpolate at this point to observe that there is no evidence that this journey was drug related.
On 30 March 2018, CP engaged in Wickr communication with your co-offender and asked to purchase 2000 MDMA tablets from him after Easter. Your co-offender agreed to provide these tablets at a discounted price.
On 3 April 2018, CP engaged in further Wickr communications with your co-offender, confirming the sale of 2000 tablets for $14,000. On 5 April 2018, CP engaged in further Wickr communications with your co-offender in which your co-offender asked CP if he could meet his friend “Chris” halfway between Canberra and Sydney or at Campbelltown, New South Wales. CP declined to travel that far, and an alternative arrangement was made for CP to meet Chris at an address in Mitchell in the ACT. It is now clear that you were the person to whom your co-offender referred as Chris.
At about 11.41 am on 5 April 2018, you met CP in Mitchell. You gave him 1,982 pills containing 567.802 grams of MDA. In exchange, CP gave you $14,000. In response you said, “Oh, he said 15, cheeky bastard. That's him. Typical”. The estimated street value of the 1,982 pills was $49,550.
Telecommunications records show that you immediately departed Canberra and drove to Sydney. You arrived back in Canberra at about 3.30 pm the following day,
6 April 2018.
At about 12.00 pm on 21 April 2018, police became aware that you had flown from Canberra to Sydney. At about 12.56 pm that day, police approached you at
Sydney Airport and placed you under arrest. Upon your apprehension, you were found to be in possession of the following items:
· $2,875 in Australian currency;
· a Samsung S8 mobile phone; and
· a gold and diamond Rolex watch and matching Rolex gold diamond ring estimated to be valued in excess of $55,000.
Later that day, police executed a search warrant at your residence in Macquarie in the ACT. Police located in a sports bag in a storage compartment in the garage, four plastic bags containing 246.465 grams of cocaine and Lignocaine, a known cutting agent. Police also located a plastic bag containing 111.546 grams of crushed pills containing MDMA and MDA. Your DNA and fingerprints were identified on the bags found in the sports bag.
Both MDMA and cocaine are controlled drugs as defined by the
Criminal Code Regulation (2005)(ACT) (the Regulations). Ten grams of MDMA is prescribed as a trafficable amount by the Regulations. Six grams of cocaine is prescribed by the Regulations to be a trafficable quantity of that substance.
Subjective features
I note that you have a criminal history, but it is not such as to suggest a need for prominence to be given to individual deterrence. A Pre-Sentence Report dated
30 January 2020 was prepared for the sentence hearing. You are currently
41 years old and you experienced a difficult childhood marred by your parents' marital breakdown and your father's physical abuse and alcoholism. You had no contact with your mother until you were 14 years old and you have limited contact with other family members now.
You have one daughter from a previous marriage with whom you maintain a good relationship. You have been in a relationship with your current partner for three years and you describe that relationship in positive terms. You say that your partner is supportive and a pro-social influence in your life. You completed your education to
Year 12 and then obtained a builder's licence. You told the author of the Report that you have a strong work ethic and your most recent employment was with a
swimming pool company. This employment ended in June 2019 following an accident at work. You were in receipt of workers’ compensation payments until November 2019.
You told the author of the Report that you have a number of pro-social friendship groups formulated through work, your partner's friends, and your interest in dog breeding. You stated that you have decided to actively distance yourself from anti-social friends and influences.
You told the author of the Report that there are no drug or alcohol issues that need to be addressed. This was contradicted to some extent by the results of drug testing undertaken during your assessment for an Intensive Correction Order, a matter to which I will return in a moment. You have no historical mental health issues, but you did engage with a psychologist in November 2019 to address some issues surrounding anxiety.
You told the author of the Report that you agreed with the Statement of Facts and accepted full responsibility for the offences. You did not attempt to minimise your actions and acknowledged your poor decision-making and lapse of judgement. You stated that you were not motivated to commit the offences for monetary gain, but wanted to assist a friend who was under some pressure at the time. You stated that you have since removed yourself from anti-social influences. You stated that you felt ashamed and embarrassed about your current situation. You were identified as a medium-low risk of re-offending.
An Intensive Correction Order Assessment Report dated 31 March 2020 was tendered on 3 April 2020. Of significance, you were scheduled to be subjected to drug testing on six occasions between 21 February and 18 March 2020. On the first occasion,
21 February 2020, you failed to provide a sample. However, the Report notes that this was time-limited. For that reason I am not prepared to draw any inference adverse to you from your failure to supply a sample on that occasion.
On the second occasion, 24 February 2020, you failed to attend. On the third occasion, 28 February 2020, you tested positive to cocaine. Your explanation for this positive reading, being that you had been in the presence of others who had been using that drug, is improbable. The Assessment Report notes that a pathologist advised that the level detected in your system was more likely due to the drug being ingested as the confirmatory result was more than twice the level of the cut-off result. In my opinion, the only rational explanation is that you have not been entirely honest about your drug use. You were assessed as suitable for an Intensive Correction Order and you signed an undertaking to comply with all your obligations under such an Order.
A letter from Damien Haines, a clinical psychologist, dated 31 March 2020 was tendered. It notes that you were referred for psychological treatment in
September 2019. Your symptoms included anhedonia, insomnia, loss of appetite, social isolation, and feelings of worthlessness and guilt.
The referral was made in the immediate context of a workers' compensation claim and your ex-wife moving overseas with your daughter. As at the date of the report, you had attended five sessions and it was proposed that you would continue with that treatment if placed on an Intensive Correction Order. Mr Haines expressed the opinion that your symptoms are consistent with an Adjustment Disorder with mixed Anxiety and Depression on a background of Post-Traumatic Stress Disorder (PTSD) with traits of a Borderline Personality Disorder and Antisocial Personality Disorder.
The diagnosis of PTSD and traits of Borderline Personality Disorder and
Antisocial Personality Disorder were based on your reports of being physically, emotionally and verbally abused by your parents during your childhood years [redacted].
On your behalf, a psychological assessment report dated 6 January 2020 was prepared by Dr Danielle Clout, a clinical psychologist. As part of the preparation of that report, you did inform Dr Clout that you [redacted]. It must remain a matter of speculation why you did not inform the authors of the Pre-Sentence Report and the
Intensive Correction Order Assessment Report of that matter. I do not infer that it is evidence that such abuse did not occur.
You told Dr Clout with respect to the offence of 5 April 2018 that you were doing a favour for your co-offender [redacted]. You said that you stopped by your co-offender’s house on your way to taking a puppy you bred to its new owner in Campbelltown,
New South Wales, and discovered your co-offender in a drug-affected state. You said that your co-offender asked if you could take some drugs to Sydney for him, but you refused. You said that he then asked you to drop them off in Canberra to which you agreed. You said that you were not paid for this or in any way involved in the transaction.
With respect to the charges on 18 April 2018, you said that a friend, not your
co-offender, was at your house and asked for some kitchen bags. You said you gave them to him and although you had your suspicions, you never looked at what he put in the bags. You told Dr Clout that you stupidly agreed to let your friend store it at your premises. You said that you were not given any money or any other form of payment for keeping the bag at your house.
Based upon the information which you provided to Dr Clout and the results of psychometric testing, Dr Clout opined that you were suffering from symptoms consistent with a diagnosis of Major Depressive Disorder (single episode, severe) and PTSD. She stated that you identified the onset of your Major Depressive Disorder in January 2019 following the present offences and the onset of your PTSD in your late adolescence.
At the time of the offences, Dr Clout said, your PTSD was characterised by
re-experiencing and avoidance symptoms, along with negative emotional states and cognitions. You also reported symptoms including self-blame, a sense of disconnection from others, hypervigilance, sleep disturbance, and risk-taking behaviours. Dr Clout said that your level of reported symptomatology was indicative of a disorder in the moderate severity range.
Dr Clout believed that you would benefit from individual psychological therapy designed to treat both your Major Depressive Disorder and your PTSD. She stated that you are likely to find a sentence of full-time imprisonment more onerous than a person without such conditions. Your negative self-evaluation is also, she said, likely to worsen in a custodial environment and the impact of incarceration on your relationship with your daughter is likely to increase your overall level of symptomatology and risk of self-harm.
Multiple character references were tendered on your behalf. I accept what the authors of those letters have said about you. The authors of the letters were not required for cross-examination. I accept from that material that you have a continuing strong relationship with your daughter, albeit that she is not currently residing with you. In addition, I accept that you have taken steps towards rehabilitation including changing your social circle to avoid associating with people involved in criminal offending. I also accept that you have a strong work ethic and the ability to obtain work quickly when the current proceedings are finalised.
Your partner gave evidence on 3 February 2020. She is a person who has no criminal associations and is only willing to continue in a relationship with you if you do not
re-offend. She currently resides in Melbourne, but she is willing to relocate to Canberra to support you if you are not sentenced to full-time imprisonment. She spoke of your strong attachment to your daughter and the efforts that you have made to avoid criminal associates and form new friendships. She also spoke of your expressions of remorse for your involvement in these offences.
Consideration
Your counsel urged that in assessing the objective seriousness of the offence of
5 April 2018, I should find that you were simply acting as a courier as a favour to your co-offender. The evidence convinces me that it is probable that this is correct. The conversation that you had with CP when you gave him the drugs and he gave you the money is consistent with you not being involved in setting the price of the drugs. It is consistent with you simply acting as a courier. In addition, your statement to Dr Clout that you were on your way to Sydney that day before being asked to undertake the transaction with CP is supported by the fact that you did travel to Sydney later that day.
The drugs which you delivered to CP were clearly in the ACT prior to the transaction on 5 April 2018, so it would always have been easier for the transaction to take place in Canberra. The fact that your co-offender originally suggested that the transaction take place half-way to Sydney or at Campbelltown supports your assertion that you had intended to travel to Campbelltown that day. That fact also supports the statement you made to Dr Clout that your co-offender originally asked you to take some of the drugs to Sydney with you.
On balance, I accept that the offence of 5 April 2018 was a single transaction undertaken by you as a favour to your co-offender and for which you were not paid. That does not mean, however, that the offence is trivial. You plainly knew that you were delivering a relatively large quantity of tablets which where illicit drugs. You knew that they were worth about $14,000 or $15,000. While you were not expecting to personally profit from this transaction, you were nevertheless an indispensable part of a significant drug trafficking event. I would assess the objective seriousness of this offence as on the border of the low and middle range of such offences.
Turning to the offences of 21 April 2018, I find your explanation for your involvement in these offences as conveyed to Dr Clout quite implausible. I do not accept that you would have been so naive as you suggested to Dr Clout. I observe that you did not give evidence at your sentence hearing and your version of events was not tested in
cross-examination. I am not prepared to infer from the fact that you acted as a courier of drugs on 5 April 2018 that you were acting in a similar role regarding the drugs located on 21 April 2018.
The person who gave you the drugs that were located on 21 April 2018 was not your co-offender and your involvement in the offence of 5 April 2018 was, you say, opportunistic. There is no reason to connect the two incidents. There is, however, no evidence that you were involved in selling drugs to end users. There is also no evidence of unexplained wealth suggestive of continuing involvement in drug trafficking.
The evidence put before me satisfies me that the purchase of the expensive watch and ring you were wearing when arrested by police on 21 April 2018 occurred on or about 15 November 2017, well before these offences, and that the source of the funds used to purchase the watch was not drug trafficking. In the absence of evidence of sale of the drugs by you personally or evidence from which it may be inferred that you were profiting from the sale of drugs at about 21 April 2018, I am only satisfied beyond reasonable doubt that your involvement was in guarding the drugs which you knew were to be trafficked by others.
I have no doubt that you were aware of the nature and amount of the drugs you were guarding. The Agreed Statement of Facts does not state the retail value of the drugs but the amounts of cocaine and MDMA involved were significantly greater than the respective trafficable quantities, albeit considerably less than the respective commercial quantities. In the Crown's written submissions, to which your counsel did not make objection, it was stated that the estimated street value of the cocaine was between $49,000 and $98,000 and that of the MDMA was about $22,000.
The warehousing and guarding of illicit drugs for the purpose of making it more difficult for police to locate the drugs and to prosecute those who own the drugs is also an important link in the chain of drug supply. While it is important to identify the role you played in trafficking these drugs as less serious than one of personal involvement in sale to others, it should not be assumed that your role was trivial. I would assess the objective seriousness of charge CC7437/2018, the charge of trafficking cocaine, as slightly above that of the offence of 5 April 2018. I would assess the objective gravity of charge CC7438/2018, the charge of trafficking MDMA, as about the same as the offence of 5 April 2018.
Regarding the evidence of Dr Clout, the Crown submitted that Dr Clout stopped short of making any actual diagnosis confining herself to stating that your symptoms are consistent with Major Depressive Disorder and PTSD. I do not believe that anything should be read into the language used by Dr Clout in that regard. It is apparent from Dr Clout's report that she believes that you should be treated for both depression and PTSD, clearly indicating that she has enough confidence in her opinions to justify recommending treatment.
The Crown suggested that the weight to be given to Dr Clout's opinion should be reduced because of apparent discrepancies between what is contained in her report and what is found in the Pre-Sentence Report and the Intensive Correction Order Assessment Report.
In particular, it is submitted that you told the author of the Pre-Sentence Report that you had no historical mental health issues while in earlier proceedings in this Court in 2012. The sentencing judge noted that you enjoyed good physical and mental health. The Crown contrasted this with the report of Dr Clout, where she said that you identified the onset of PTSD in late adolescence and reported some fluctuations in severity over the course of your life.
In some cases, differences in history as provided by an accused person to medical practitioners or others may be of some importance, but I am not persuaded that this is such a case. The report by Dr Clout was being prepared at about the same time as the Pre-Sentence Report. The Intensive Correction Order Assessment Report was prepared later.
If you had intended to mislead Dr Clout on your mental health history, there is no reason why you would not have also attempted to mislead the author of the
Pre-Sentence Report and the author of the Intensive Correction Order Assessment Report. The difference between the contents of the Intensive Correction Order Assessment Report, the Pre-Sentence Report, and Dr Clout's report, is probably explicable by the difference in focus between the reports.
It is almost a certainty that Dr Clout questioned you in greater detail about your
mental health history than did the authors of the other reports. This would not be surprising as the purpose of Dr Clout's report was to provide a psychological opinion. Regarding the proceedings in 2012, it is not clear whether the sentencing judge was at that time referring to anything other than a Pre-Sentence Report.
The Crown then submitted that there was an insufficient link between any mental impairment from which you may have suffered and the current offending to warrant any reduction in your moral culpability. At paragraph 48 of her report, Dr Clout stated that at the time of your offending, you reported a moderate degree of symptoms associated with PTSD. She stated that PTSD is commonly associated with a range of impairments with respect to mental capacity and thought processes, including impairments in judgement, decision-making and the ability to predict consequences of actions. That disorder can also be associated with taking greater risks. Dr Clout expressed the opinion that your symptoms increased the likelihood of poor decision making and taking risks that most people would not consider.
I approached Dr Clout's opinion with caution because, in part, it was based upon an explanation for your participation in the offences of 21 April 2018 that I do not accept. In any event, nothing said by Dr Clout would suggest it was appropriate for anything other than a very moderate reduction in your moral culpability. I will accept that you were suffering from PTSD at the time that you committed offences but I will only moderate the sentences slightly based on a reduction of moral culpability by reason of mental impairment. Some slight moderation of the impact of general and personal deterrence as sentencing considerations is also appropriate.
I accept Dr Clout's opinion that your PTSD and your depressive condition will make a sentence of full-time imprisonment more onerous for you than for a person without such conditions. I also accept her opinion that there is appropriate treatment available to you for both PTSD and depression, although you are less likely to be able to access such treatment if you are sentenced to full-time imprisonment.
In my opinion, you have reasonable prospects for rehabilitation based on your willingness to undergo treatment, your ability to obtain employment, and the support you have from your current partner and her extended family. I also take into account in that regard the steps that you have already undertaken towards rehabilitation. It is indisputable that the present offences call for terms of imprisonment. The only issue is whether you should be subject to periods of full time imprisonment or whether the requirements of sentencing expressed in s 7 of the Crimes (Sentencing) Act 2005 (ACT) can be satisfied by imposing terms of imprisonment to be served by way of an Intensive Correction Order.
The Crown submitted that in addressing this question I should consider the sentences passed on your co-offender. Your co-offender was sentenced to an aggregate sentence of three years and two months' imprisonment for two offences of trafficking in a controlled drug together with other offences transferred to this Court from the
ACT Magistrates Court. Your counsel submitted that the parity principle is not engaged with respect to the sentence imposed on your co-offender for several reasons. First, your co-offender pleaded guilty and was sentenced with respect to differently constituted charges. You are charged only with respect to one discrete charge that involved your co-offender.
Secondly, the charges against your co-offender involved trafficking in MDA, MDMA, and methylamphetamine, for a period of some four months which may be contrasted with the charges to which you have pleaded guilty. Thirdly, the quantity of drugs involved in the offences committed by your co-offender was significantly greater than the quantity involved in your offences and you are to be sentenced for the one offence that is in common with your co-offender on the basis that you were a subordinate to him.
Fourthly, it was submitted that it appears that no submission was made in the matter of your co-offender that he be assessed for an Intensive Correction Order. In this case of course, such an assessment has been prepared and you have been found suitable. Finally, it was submitted that COVID-19 has changed the general circumstances regarding sentences of imprisonment.
I accept the submission that there can be no issue of parity between yourself and your co-offender because of the difference in the charges against each of you and the facts upon which each of you come to be sentenced. It would undoubtedly seem odd to a lay observer that your co-offender came to be sentenced on the basis that you were significantly more involved in his drug trafficking business than I have found to be the case in the present proceeding. While such a situation may seem incongruous, it is a result of different evidence being placed before the Court on different occasions. It would undoubtedly have been better if both you and your co-offender had been sentenced at the same time but that was simply not possible because your co-offender came to be sentenced before you had even been committed for sentence from the
ACT Magistrates Court.
Although the offences of 5 April and 21 April 2018 are relatively close together in time, they constitute separate offences calling for a degree of separate punishment. Similarly, the fact that two offences occurred on 21 April 2018 does not mean that the sentences passed for those offences should be entirely concurrent. I will of course consider totality in determining the extent of cumulation of sentences.
The current arrangements at the Alexander Maconochie Centre for visiting detainees has been significantly affected by COVID-19 restrictions. It is more difficult for detainees to receive visitors than was previously the case. This is not a determinative matter, but it should be taken into account. The Crown correctly submitted that considerations of general deterrence, punishment and protection of the community are important in sentencing for drug trafficking offences. The question is whether those considerations may be adequately addressed by the imposition of an
Intensive Correction Order.
After much deliberation and with some misgivings, I have determined to proceed by way of sentences of imprisonment to be served by way of an
Intensive Correction Order. I accept that the imposition of an Intensive Correction Order involves a degree of leniency compared to a sentence of full-time imprisonment. It is, however, possible to increase the punitive effect of an Intensive Correction Order by imposing curfew and community service conditions, which is what I intend to do.
Sentence
On charge CC7437/2018, I record a conviction and you are sentenced to
12 months' imprisonment, which I have reduced from 15 months’ imprisonment because of your plea of guilty, commencing today, 8 May 2020, and expiring on
7 May 2021.
On charge CC7438/2018, I record a conviction and you are sentenced to
10 months' imprisonment, which I have reduced from 13 months' imprisonment because of your plea of guilty, commencing on 8 January 2021 and expiring on
7 November 2021.
On charge CC5485/2018, I record a conviction and you are sentenced to
10 months' imprisonment, which I have again reduced from 13 months’ imprisonment because of your plea of guilty, commencing on 8 June 2021 and expiring on
7 April 2022.
The aggregate sentence I have imposed is therefore one of 23 months, commencing on 8 May 2020 and expiring on 7 April 2022.
I order that it is to be served by way of an Intensive Correction Order with the following conditions:
(a) firstly, a curfew condition requiring you to be present at your place of residence continuously from 8.00 pm each evening until 5.00 am the following morning; and
(b) secondly, a community service condition requiring you to complete 249 hours of community service within 12 months as directed by officers of ACT Adult Corrections.
I propose also to direct you to report forthwith to the Corrections intake Officer.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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