R v Erntner

[2018] ACTSC 335

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Erntner

Citation:

[2018] ACTSC 335

Hearing Date:

1 August 2018

DecisionDate:

1 August 2018

Before:

Burns J

Decision:

See [8] – [15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis – trafficking in cannabis – plea of guilty – longstanding problem with drug addiction – suitability for an intensive corrections order

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 11(3)

Parties:

The Queen (Crown)

Ryan Erntner (Offender)

Representation:

Counsel

Ms A Jamieson Williams (Crown)

Mr J Lawton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Law (Offender)

File Number:

SCC 39 of 2018

BURNS J:

1. Mr Erntner, you have pleaded guilty to one count of trafficking in a controlled drug other than cannabis, being MDMA (CC2017/11063), and one count of trafficking in cannabis (CC2018/3400). There is a Statement of Facts which has been put before me as an Agreed Statement of Facts. I will not recite that at the present time. It is sufficient to note that the MDMA was in the form of pills, and indeed two clip seal bags containing about 139 pills were found during a search of your premises. Not only were those tablets found but a significant amount of cannabis in several areas of the residence was located. The total amount of the cannabis was approximately 1.5 kilograms.

1. In addition, scales with residue on the surface were located, together with unused clip seal bags and $5050 in Australian currency. The Statement of Facts says at the time of your arrest, a mobile phone was located and seized by police. The mobile telephone was subsequently analysed by police and the analysis suggested that you had been selling illicit substances for a period of time. It is difficult in those circumstances to determine the precise period over which your involvement in the trafficking of drugs occurred. The prosecutor pointed to the fact that the charges against you specified a period and that I should proceed on the basis that the period in which you were involved in the trafficking of cannabis was between 15 November 2016 and 6 October 2017.

1. I accept that there was a plea of guilty by you to that charge and that I should proceed on the basis that there had been some supply of cannabis by you over that period of time. I do note, however, that there was no indicia of very significant profits being made as a consequence of your involvement of the supply of cannabis or indeed in trafficking in MDMA. Of course, a not insignificant sum of just over $5000 was located at the time that you were arrested. I am satisfied that you were involved in trafficking these substances for two reasons; firstly, I am satisfied that it was in order to provide you with money in order to fund your own drug use, but secondly, you were also involved to provide you with some degree of profit, albeit that I accept that there was not a very significant profit motive involved.

1. It is clear from the material before me that you have a longstanding problem with respect to drug addiction. Attempts have been made in the past to assist you in dealing with that; however, they have not been successful. It is true, as the Crown says, that you have a history of non-compliance with community based orders; however, I note that with regard to the recent assessment for an intensive correction order, it was stated by the author of the report that in recent times, after having been placed in custody for a breach of bail, your attitude has improved and you have significantly improved in terms of your compliance. In addition, it appears that you have entered into a relationship which is of some significance to you and which also appears to be positive in its nature.

1. These offences call for a term of imprisonment because of the need not only to deter others who might be minded to commit this type of offence, but also because there is clearly a need to deter you from criminal offending. In that regard, I note that you have a significant criminal history, although you have not in the past been involved with any serious offences relating to drugs. Most recently you were dealt with in the Magistrates Court in 2017 with regard to less serious offences involving anabolic steroids, and with regard to three such charges you were placed upon suspended sentence orders with regard to two months of imprisonment with respect to each of three charges.

1. I note that you were subject to those suspended sentence orders at the time that you committed these offences, together with good behaviour orders with respect to two other matters that have been dealt with in the Magistrates Court. That of course is an aggravating circumstance with respect to sentencing in the present matters.

1. I have determined to proceed by way of an intensive corrections order. The reason I have done so is because of the recent improvement in your attitude and approach to dealing with Corrective Services. I must make it clear that this will be the last opportunity that you get to have serious criminal offences dealt with other than by way of an immediate term of imprisonment. This really is the last opportunity because an intensive corrections order is the next most serious sentence that can be imposed underneath a sentence of immediate imprisonment.

Sentence

1. With regard to the charge of trafficking in MDMA, you will be convicted and sentenced to 20 months’ imprisonment commencing today, 1 August 2018 and expiring on 31 March 2020. I have reduced that from 24 months in order to reflect your plea of guilty.

1. With respect to the charge of trafficking in cannabis, you will be convicted and sentenced to nine months’ imprisonment commencing on 1 December 2019 and expiring on 31 August 2020. I have reduced that from 12 months in order to reflect your plea of guilty.

10.  The recording of those convictions means that you are in breach of the suspended sentence orders and good behaviour orders that I referred to a moment ago.

11.  With respect to Magistrates Court charges CC2017/2769, CC2017/2770 and CC2017/2771, in each case, the good behaviour order is cancelled and you will be re‑sentenced to one month and 28 days’ imprisonment. I have imposed that sentence as opposed to the two months’ sentence in order to reflect the two days that you have spent in custody with respect to the charges now before the Court.  Each of those sentences will be concurrent with the sentence of trafficking in MDMA, so each of those sentences will commence today, 1 August 2018.

12.  With respect to Magistrates Court charges CC2017/2768 and CC2017/1845, I will direct that no further action be taken with respect to the breach of those matters.

13.  There is therefore an aggregate sentence of two years and one month imprisonment commencing on 1 August 2018 and expiring on 31 August 2020.

14. I take into consideration the matters that are referred to in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) but I nevertheless determine that it is appropriate to proceed by way of an intensive corrections order.

15.  I order that the sentences of imprisonment which I have just imposed will be served by way of an intensive corrections order with the core conditions and a further condition that you be at your approved place of residence continuously between the hours of 8 pm each night and 6 am the following morning, for the period commencing on 1 August 2018 until 31 October 2018.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 5 February 2019