R v Ebbott
[2019] ACTSC 379
•4 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ebbott |
Citation: | [2019] ACTSC 379 |
Hearing Date: | 4 October 2019 |
DecisionDate: | 4 October 2019 |
Before: | Burns J |
Decision: | See [22] – [25] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – consideration of offender’s drug and gambling abuse –consideration of Intensive Correction Order |
Legislation Cited: | Criminal Code 2002 (ACT) s 603(7) |
Parties: | The Queen (Crown) Harry Richard Ebbott (Offender) |
Representation: | Counsel P Dixon (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Offender) | |
File Number: | SCC 293 of 2018 |
BURNS J
Harry Ebbott, you have pleaded guilty to one count of trafficking in a controlled drug, namely methylamphetamine (CC 2018/8788). An Agreed Statement of Facts has been tendered. I will simply observe at this stage that between May and July 2018, you were the target of a police drug investigation. Police had been lawfully intercepting your mobile phone communications, and carrying out surveillance on you. Police suspected that you were in the business of trafficking drugs.
On 8 July 2018, police received information that you were in possession of illicit drugs, and you were travelling from Sydney to Canberra along the Federal Highway. Police intercepted your car after it crossed the border into the ACT, and executed a search warrant on you and your car. During the search, police found two one-ounce balls, or 55 grams in total, of methylamphetamine, concealed in your sunglasses case under the driver's seat. I note that the evidence establishes that you had, on a number of occasions, travelled to Sydney in order to source drugs in Sydney, to return to the ACT.
The evidence against you with respect to your previous course of dealings with respect to illicit drugs was particularly strong, and was available to the Crown in order to establish firstly that you were the person who was in possession of the drugs on
8 July 2018; and secondly, what you intended to do with respect to those drugs.
I note that the maximum penalty for the offence of trafficking in a controlled drug contrary to s 603(7) of the Criminal Code 2002 (ACT) is 10 years’ imprisonment and/or a $150,000 fine. You were charged with this offence on 9 July 2018. You were granted bail, and the matter was adjourned, from time to time, until on 7 September 2018 you entered a plea of not guilty to the charge in the ACT Magistrates Court, and the matter was listed for case management hearing.
A brief of evidence was served on you by the Crown. On 16 November 2018, at the case management hearing, you maintained your plea of not guilty, and you were committed to this Court for trial. On 19 February 2019, at the callover of the matter, the charge was set down for trial in the week commencing 24 June 2019. A Basha inquiry was also listed for 4 June 2019. At the Basha inquiry, the police called a number of witnesses to give evidence at your request. On 26 June 2019, on the first morning of the trial, you changed your plea and pleaded guilty to the charge.
It has not been suggested your plea of guilty was an early plea, and indeed it could not be suggested. It was a very late plea, but nevertheless I will reduce by approximately five per cent the sentence that would otherwise be appropriate with respect to this offence, in order to reflect your plea of guilty. Your plea of guilty had a certain utilitarian value, although the extent to which it demonstrated remorse is problematic. If there had been true remorse in relation to this matter, an earlier plea would have been entered.
I note that you have a criminal history, mainly in relation to illicit drugs, but also more recently in relation to driving offences. Probably the most significant matters to date, which appear on your criminal history, occurred in 1997, when you were convicted in the ACT Magistrates Court of offences of possessing cannabis for supply, and cultivating cannabis for the purpose of supply. I infer that those offences were not amongst the most serious examples of that type of offending because, whilst you were convicted, you were placed on a Recognisance to be of good behaviour for a period of two years, and also a substantial fine of $1,500 was imposed. It is of some significance in assessing the objective seriousness of those offences that no sentence of imprisonment was imposed.
On 26 June 2019, when you entered a plea of guilty to this charge, I adjourned the matter until today, 4 October 2019, and ordered an Assessment for an
Intensive Correction Order. That Assessment has been tendered by the Crown as Exhibit 2 in the proceedings today. The Assessment notes that you have a history of contact with ACT Corrective Services, but that your compliance has been deemed to be satisfactory in your previous contact with that service.
During the Intensive Correction Order Assessment period, you were described as engaging willingly with the assessment process. The author of the Assessment notes that, to your credit, you have been proactive in seeking assistance to address your illicit substance use and gambling behaviours. On 21 August 2019, you completed a program through Karralika Programs and commenced engagement with
Directions Self Management And Recovery Training (SMART) Recovery program. I am told that the program that you completed through Karralika was in relation to recent drug driving offences.
You were subject to urinalysis testing on 21 August 2019, at which time the test confirmed the detection of amphetamine and methamphetamine. You were subject to further testing on 28 August, 5 September and 13 September 2019. Those tests returned a negative result, with no illicit substances detected.
You have signed a consent form agreeing to abide by Intensive Correction Order conditions if an Intensive Correction Order is imposed. I take into account the matters that are set out under relevant background information in the
Intensive Correction Order Assessment.
I particularly take into account the material which is under the heading of “Alcohol and/or Drug Use”. That material demonstrates that you have had a longstanding drug addiction, and based on assessments undertaken by the author of the Intensive Correction Order Assessment, the level of risk related to your use of illicit substances has been assessed as substantial, and further assessment is required.
You told the author of the Assessment that you did not dispute the Statement of Facts. You stated that you had been motivated to obtain the illicit substances at the time of the offence, in an effort to maintain your own personal level of use, and also to be able to fund your level of personal use.
There is also a suggestion that you have been involved in gambling to an extent which is considered to be of concern. It has been accepted, as I understand it, by the Crown in these proceedings, that in part, your involvement in the present offence was driven by your personal drug use, and also your gambling addiction.
There must have been, however, I am satisfied, some element of profit involved. At the time of the commission of this offence you were unemployed, and it is clear from the material before me that you had some need for a fairly significant income. Not only in terms of maintaining your drug abuse and covering any gambling losses, but also in terms of maintaining your lifestyle and any investment properties which are referred to in the Intensive Correction Order Assessment.
I gratefully accept the description given by the Crown Prosecutor in his written submissions that you were a low-to-mid level dealer who possessed 55 grams of methylamphetamine, which you intended to traffic as part of your ongoing business enterprise of drug dealing.
It was, I am satisfied, a planned criminal activity and the evidence establishes that this was not a one-off transaction. The amount of drugs that you were trafficking was not insignificant. The Prosecutor correctly points out the fact that trafficking in illicit drugs, including methamphetamine, is a particularly serious offence, because of the potential destructive influence that these substances have on the community. Deterrence is the predominant sentencing consideration with respect to offences of this nature. Although, as the Crown properly conceded, rehabilitation is not to be entirely ignored. It is also important that any sentence that I impose be such as to denounce this conduct, and act as a protection to the community by appropriately deterring others who may be minded to engage in behaviour of this sort.
Whilst you have undertaken steps towards rehabilitation since having been charged with this offence, and also having entered a plea of guilty, it is still a case in which, to some extent, personal deterrence is relevant.
I take into account the material which has been tendered on your behalf as part of Exhibit 3. There is a letter from Tony Brooks, who is the Territory manager for
Ventis Home Ventilation, which speaks of you as an employee of that organisation. You have been with that organisation now for over three months, and you are employed on a permanent part-time basis as a service technician and installer. Mr Brooks speaks highly of your attitude and commitment to your work, and speaks also of his desire to retain you as an employee. I take into account the contents of the references from Nicole Mascord, Tim Clarke and Belinda Smith.
I also take into account the fact that you have nominated yourself for self-exclusion from all ACT gambling venues, which will, of course, assist in reducing financial pressure, and as such, the motivation for any further participation in offences of this kind, at least to some extent. It has been accepted, and I think rightly so, by your Counsel, that this offence warrants a term of imprisonment. The real question is whether it is a term of imprisonment which you should be required to serve by way of full-time imprisonment, or whether I should impose an Intensive Correction Order.
It is a difficult balancing exercise, but I am persuaded at the present time, by reason of your actions in seeking out rehabilitation for your drug addiction, and also taking steps to address your gambling behaviour, that the requirements of sentencing with respect to this matter can be achieved through an Intensive Correction Order.
Sentence
My starting point with respect to this offence is 20 months' imprisonment. I will reduce that by one month, in order to reflect your plea of guilty.
There will be a conviction recorded, and you will be sentenced to
19 months' imprisonment, commencing today, 4 October 2019. That sentence will be served by way of an Intensive Correction Order.
It will be a term of that Order that you are to complete 249 hours of community service within a period of 12 months, as directed by ACT Community Corrections. You are to report to ACT Community Corrections at Level 1, 249 London Circuit by 5 pm this afternoon, 4 October 2019, as it is a Friday.
[Speaking directly to offender]
Now, Mr Ebbott, you have come very close to going to prison full-time. I am giving you an opportunity to demonstrate that you are able to deal with the two matters which are likely to lead you back into committing offences of this nature - being drug abuse and also gambling. Now, if you take the opportunity that is given to you, and you comply with the terms of the Intensive Correction Order, then there will be no requirement for you to serve any full-time imprisonment. However, if you breach the terms of the Order, you should expect to serve a period of full-time imprisonment.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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