R v Gladman
[2019] ACTSC 371
•28 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gladman |
Citation: | [2019] ACTSC 371 |
Hearing Date: | 20 May 2019 |
DecisionDate: | 28 May 2019 |
Before: | Burns J |
Decision: | See [36]–[40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty plea – trafficking in a commercial quantity of a controlled drug – trafficking in a trafficable quantity of cannabis – consideration of moral culpability – reasonable prospects of rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT), s 49 Criminal Code 2002 (ACT), ss 603(3), 603(5), 603(7) Drugs of Dependence Act 1989 (ACT), s 171(1)(b) |
Cases Cited: | R v Ingram [2017] ACTSC 398 |
Parties: | The Queen (Crown) Sean Gladman (Offender) |
Representation: | Counsel A Williamson (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 10 of 2018; SCC 11 of 2018 |
BURNS J
Mr Sean Gladman, on 8 May 2019 you entered pleas of guilty to the following charges:
·
Charge CC 2017/13083, a charge of trafficking in a commercial quantity of a controlled drug, namely Lysergide, commonly referred to as LSD, contrary to
s 603(3) of the Criminal Code 2002 (ACT) (the Criminal Code) which carries a maximum penalty of 25 years' imprisonment, 25,000 penalty units, or both.
·
Charge XO2018/31291, a charge of trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code, which carries a maximum penalty of
10 years' imprisonment, 1,000 penalty units, or both.
· Charge XO2018/31292, a charge of trafficking in a controlled drug other than cannabis, namely Tetrahydrocannabinol, contrary to s 603(7) of the Criminal Code which carries a maximum penalty of 10 years' imprisonment, 1,000 penalty units, or both.
Each of these offences occurred on 21 July 2017. You entered pleas of guilty to these charges on 8 February 2019 after you were committed for trial but before a trial date was set.
In addition, in sentencing you with respect to the offence of trafficking in a commercial quantity of a controlled drug (CC 2017/13083), you ask that I take into account a number of offences on a List of Additional Offences dated 20 May 2019. These offences are:
·
CC2017/12166, possession of a prohibited substance, namely
4-Bromo-2,5-Dimethoxyphenethylamine;
·
CC2017/12167, possession of a prohibited substance, namely
3,4-Methylenedioxyamphetamine;
·
CC2017/12168, possession of a prohibited substance, namely
N,N-Dimethyltryptamine;
· CC2017/13084, possession of a prohibited substance, namely Methylamphetamine;
· CC2017/13085, possession of a prohibited substance, namely Ketamine; and
· CC2019/1179, a charge of failing to answer bail.
Each of the five offences of possession of a prohibited substance is an offence contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT), carrying a maximum penalty of imprisonment for two years, 50 penalty units, or both. The offence of failing to answer bail is contrary to s 49 of the Bail Act 1992 (ACT) and carries a maximum penalty of imprisonment for two years, 200 penalty units, or both.
The Facts
On 12 July 2017, a young person and three other young companions bought sugar cubes containing LSD from you at your premises at Narrabundah, ACT. At about
12:04 am on 13 July 2017, police were called to a home in Narrabundah where the young person was experiencing an adverse reaction to drugs.
Police obtained a search warrant to search your premises at Narrabundah which was executed on 21 July 2017. During the execution of the warrant, police found mobile telephones, foil, sugar cubes, clip seal bags, scales, a metal grinder, seven empty vials containing LSD residue, a cash counter and a safe containing two silver bars and the sum of $8,540 in various Australian dollar denominations.
From your bedroom, police seized 2.084 grams of LSD, 486.7 grams of cannabis and 16.190 grams of Tetrahydrocannabinol. During the search, police also located small quantities of the prohibited substances referred to in the charges on the
List of Additional Offences, each contained in a snap lock bag.
You were arrested on 21 July 2017 and granted bail in the ACT Magistrates Court the following day. On 14 August 2017, you entered pleas of not guilty. You were committed to stand trial on 6 February 2018. On 14 June 2018, you failed to appear in this Court in accordance with your bail undertaking. On 20 January 2019, you were arrested for failing to appear on your bail undertaking and you have remained in custody since that time.
Consideration
A trafficable quantity of LSD is 0.003 grams and a commercial quantity is
1.5 five grams. As such, you possessed nearly twice the trafficable quantity. On the basis of data found in the Australian Criminal Intelligence Commission Illicit Drug Data Report for 2016 to 2017, the Crown submitted that the amount of LSD possessed was sufficient to make over 10,000 typical individual doses with a street value of between about $73,000 and $520,000.
A trafficable quantity of cannabis is 300 grams. You had 486.7 grams in your possession. The Crown submitted that the street value of the cannabis was between $4,867 and $24,335.
Tetrahydrocannabinol is cannabis resin oil. A trafficable quantity of this substance is
2 grams. You had 16.19 grams, or more than eight times the trafficable quantity in your possession. The Crown was unable to provide information as to the potential street value of that substance.
You gave evidence that some, if not most, of the drugs found were for your personal use, but you accepted that you were selling cannabis and LSD. You said that you usually dispense the LSD, which was in a liquid base, by using a dropper to place a drop of the liquid on a sugar cube. You calculated that the amount of liquid you possessed containing LSD would make about 66 doses using that method.
You claimed that most of the LSD was for your own use. You stated that you suffer from cluster headaches and anxiety and that very small doses of LSD alleviated those conditions.
You claimed that the silver bars found in your room were purchased with a number of coins as an investment. You gave evidence that of the $8,540 in cash found in a safe in your bedroom, only about $1,000 dollars had come from drug sales. You said that $4,000 was money you had earned subcontracting and $3,000 money that you had saved from your wages. You were employed as a contracting sound and light technician, as I understand it.
Of the sum of $8,000, you stated that $2,000 was money that had been withheld by your employer at your request as a form of saving. You stated that you had purchased the cash counter for a small sum and you rented it out to organisers of music festivals. I do not accept your evidence with regard to these matters.
You gave evidence that you engaged in the sale of illicit drugs and principally cannabis, but also to a small extent LSD, because you were unable to fund your own drug use through your employment.
It makes no sense whatsoever in those circumstances that you would have requested your employer to withhold money from your earnings. It would also make no sense for you to have engaged in the purchase of silver bars as an investment.
You called no evidence from your employer to support your claim that you had received wages and the amount you claimed which was withheld from your wages in the period leading up to 21 July 2017. In addition, you called no evidence to support the proposition that you were in the habit of renting out the cash counting machine to organisers of music festivals. Your evidence with regard to these matters was particularly vague and appeared calculated to ensure that your assertions could not properly be tested.
You gave evidence that you had been dealing in drugs for approximately four years before 21 July 2017 and that you considered it a business. There were, however, I accept no indicia of large profits. The fact that you were engaged in the business of dealing in drugs for approximately four years before you were arrested is relevant as demonstrating that the present offences were not isolated or out of character.
I accept that it is more probable than not you were dispensing LSD in the manner that you described. As such, I am not satisfied that you would have made the large profits suggested by the Crown. I have no doubt, however, that you were also trafficking in cannabis and Tetrahydrocannabinol. The amount of the latter substance in particular, which was in your possession, makes any contrary suggestion inherently improbable.
I am not satisfied on the balance of probabilities that the majority of the drugs found in your possession were for your own use. As you said, you were conducting a business of dealing in drugs.
The presence of the cash counting machine suggests that from time to time you came into possession of significant quantities of banknotes and the inevitable inference is that this was a result of your business dealing in drugs. I am satisfied beyond reasonable doubt that your primary motive for committing these offences was greed. You anticipated making profits from the sale of the drugs in your possession.
You have chosen to work in a field where your employment is intermittent and not particularly well paid. I am satisfied that you chose to augment the money that you earned from your employment through the sale of drugs. I accept that some of the drugs may well have been for your own use, but I do not accept the proposition that the majority of the drugs found in your possession were for that purpose.
There is no convincing medical evidence that any condition of anxiety or cluster headaches could not have been addressed without the use of illicit drugs. Indeed, it appears that you had not consulted your general practitioner for 10 years prior to this offence with regard to treatment for cluster headaches and for four years for treatment for anxiety.
Subjective Features
You have a relatively minor criminal history with no prior offences as serious as the present. You are 28 years old and you reported a positive upbringing, although you moved into a refuge during your mid-teens during your ongoing disagreements with your parents. You currently have positive relationships with your parents and sister. You are single with no children. You are able to reside at your parents' house upon your release from custody until you are able to secure long term accommodation.
You told the author of the Pre-Sentence Report that your school years had been difficult due to being the victim of bullying. You left school after completing Year 10 and obtained a vocational qualification in security. You were employed in a number of casual roles prior to being arrested.
You told the author of the Report that you had used illicit drugs since your mid-teens. You have attended various interventions on a short-term basis. You claimed to have ceased using all illicit drugs in 2018, however this claim was unable to be verified. I note that you have recently commenced the Stress Less Program in the Alexander Maconochie Centre to help address anxiety.
In your evidence at the sentence hearing, you stated that being charged with these offences had made you slow down and you stopped taking drugs. You further said that the path that you were going down at that time was terrible. You stated that you do not want to go back to drug dealing.
It is of concern that you have attempted to minimise your culpability with respect to these offences in your evidence and appear to have demonstrated little understanding of the seriousness of these offences in your discussions with the author of the
Pre-Sentence Report. I nevertheless accept that you have reasonable prospects for rehabilitation.
In your evidence you stated that you did not know that one of the people who came to your home to purchase LSD on 12 July 2017 was a juvenile. I am not prepared to find proven beyond reasonable doubt that you did know that that person was a juvenile. It is, of course, one of the risks involved in the supply or dissemination of illicit drugs that they will fall into the hands of children.
I take into account the testimonials that were tendered on your behalf at the sentence hearing. They speak of you being remorseful for your actions and of your ability to rehabilitate yourself. They also speak of your support in your family and the community, and the various projects that you have been involved in with community groups.
Your Counsel drew my attention to my decision in R v Ingram [2017] ACTSC 398, where I imposed a suspended sentence of 18 months' imprisonment for an offence of trafficking in a controlled drug, being LSD. The offender in that matter was found with 300 tabs of LSD and a sum of $3,575 in cash. I note that the offender in that matter was charged with a less serious offence carrying a maximum penalty of 10 years' imprisonment.
In addition, prior to sentencing, that offender had spent lengthy periods of time undergoing residential rehabilitation and reports from the institution where he was participating in a rehabilitation program spoke positively of his engagement in the program. I was satisfied that the offender had gained a great deal of understanding in relation to the factors likely to lead him to using drugs and as a consequence to engage in crime.
While your pleas of guilty were not early, they were entered before a trial date was set and have significant utilitarian value. I will reduce by approximately 15 percent the sentences I would otherwise have imposed in order to reflect your pleas of guilty. The fact that all of these offences occurred on the same day means that a significant degree of concurrency of sentences is justified, although some degree of accumulation is also warranted.
Punishment and general deterrence are the principal sentencing considerations with regard to imposing sentences for drug supply offences. In the present case, bearing in mind the period of time during which you conducted a business of selling illicit drugs, individual deterrence is also important. In my opinion, nothing less than immediate terms of imprisonment are appropriate.
Sentence
I record convictions on each of the three offences before the Court.
My starting point with regard to the offence of trafficking in LSD (CC 2017/13083), taking into account the offences on the List of Additional Offences (CC17/12166; CC17/12167; CC17/12168; CC17/13084; CC17/13085; CC19/1179), is three years and six months' imprisonment. I will reduce this to three years' imprisonment in order to reflect your plea of guilty. This will commence on 19 January 2019 and expire on
18 January 2022.
With regard to the offence of trafficking in a trafficable quantity of cannabis
(XO 2018/31291), you are sentenced to 10 months' imprisonment, reduced from
12 months’ because of your plea of guilty, commencing 19 June 2021 and expiring
18 April 2022.
With regard to the offence of trafficking in Tetrahydrocannabinol (XO 2018/31292), you are sentenced to 10 months' imprisonment, again reduced from 12 months’ because of your plea of guilty, commencing 19 September 2021 and expiring 18 July 2022.
The aggregate sentence that I have imposed is three years and
six months' imprisonment, commencing 19 January 2019 and expiring 18 July 2022. I note, of course, that this is your first period of imprisonment. I will set a non-parole period of two years commencing 19 January 2019 and expiring on 18 January 2021.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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