R v Haque
[2022] ACTSC 10
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Haque |
Citation: | [2022] ACTSC 10 |
Hearing Date: | 1 February 2022 |
DecisionDate: | 1 February 2022 |
Before: | Mossop J |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – supplying controlled drug to child – trafficking controlled drug other than cannabis – ephylone and LSD – supply and trafficking at low end of mid-range of objective seriousness – possessing a drug of dependence – unauthorised possession of firearm other than a prohibited firearm – paintball marker – possessing firearm at low end of mid-range of objective seriousness – discount for guilty pleas – unacceptable delay in bringing the prosecution – opportunity for rehabilitation – excellent subjective circumstances – extended and unexplained delay in prosecuting means that a custodial sentence is not the only appropriate sentence – good behaviour orders with community service condition and fines imposed |
Legislation Cited: | Criminal Code 2002 (ACT), ss 603(7), 625(1) Criminal Code Regulation 2005 (ACT), s 5(2)(d) Firearms Act 1996 (ACT), s 43(1) |
Cases Cited: | Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 |
Parties: | The Queen ( Crown) Anam Haque ( Offender) |
Representation: | Counsel M Howe ( Crown) S McLaughlin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 166 of 2021 SCC 167 of 2021 SCC 168 of 2021 |
MOSSOP J:
Introduction
On 8 November 2021, the offender, Anam Haque, pleaded guilty to the following offences in the Supreme Court following a criminal case conference:
(a)Two counts of supplying a controlled drug other than cannabis to a child, contrary to s 625(1) of the Criminal Code 2002 (ACT) (CAN 719/2021 and CAN 720/2021). The maximum penalty for this offence is 20 years’ imprisonment, 2000 penalty units or both.
(b)One count of trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code (CAN 723/2021). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
On 16 July 2021, after the provision of a brief of evidence, the offender had pleaded guilty to the following offences in the Magistrates Court:
(a)One count of possessing a drug of dependence, contrary to s 169 of the Drugs of Dependence Act 1989 (ACT) (CAN 724/2021). The maximum penalty is two years’ imprisonment, 50 penalty units or both.
(b)One count of unauthorised possession of a firearm other than a prohibited firearm, contrary to s 43(1) of the Firearms Act 1996 (ACT) (CAN 725/2021). The maximum penalty is five years’ imprisonment. A fine of up to $10,000 is available under s 15 of the Crimes (Sentencing) Act 2005 (ACT).
Facts
The facts are agreed and are, in summary, as follows.
On 8 December 2017, the victims, CD and OM, spent the day together celebrating CD’s 17th birthday. Both victims were 17 years old at the time and were school friends. At around 6pm that evening, the friends attended a birthday dinner with CD’s family at Grease Monkey in Braddon. CD received approximately $500 in cash for her birthday.
At approximately 8pm following the dinner, CD’s father dropped CD and OM off at a party located at a venue called “Kid City” in Mitchell. Shortly after they arrived, CD noticed the offender outside the party. She had known him for several years, but she had not seen him for some time. The offender went into the party and spoke with CD. He told her that he was a “plug” for the party. CD understood that he meant that he was there to sell drugs.
When CD asked the offender what drugs he had, he told her that he had MDMA, Acid, Xanex and “something else”. He told CD she should take some “M”. CD asked OM whether she wanted to take some MDMA and OM agreed that she did. CD and OM then found the offender and asked to buy drugs from him.
The offender walked from Kid City to his black car. He then drove his car back to Kid City and picked up CD and OM from the party. CD sat in the front passenger seat and OM sat in the back passenger seat. The offender then drove about 60 m away and parked his car outside another building.
The offender sold two capsules of MDMA to CD for $50. There was an agreement that one capsule was for CD and one capsule was for OM. The offender retrieved a “Red Bull type container” from the centre console inside the car and removed a small plastic zip‑lock bag containing a pink crystalline substance. He scraped some of this substance onto his hand and asked that CD and OM taste it. They agreed. Then the offender scraped the substance into two clear, empty capsules. He gave one capsule to CD and one to OM. They consumed the substance.
Since it was CD’s birthday, the offender then offered CD and OM “strips” of LSD for free. CD and OM agreed to take the strips. The offender tore small “tabs” of paper that were red, yellow and blue in design with ripped edges. He gave one tab each to CD and OM. CD and OM put the tabs on their tongues and consumed the substance.
It was around this time that a friend of the offender arrived and entered the offender’s parked car. This friend also consumed some of the pink substance. He then mixed some tobacco and marijuana and smoked some of it with the others.
The offender, his friend, CD and OM went back to the party. CD began noticing some effects of the substances shortly after. She felt panicked and her heart was racing. She felt like she needed to stay close to the offender for the rest of the party. OM was feeling disinhibited following her consumption of the substances.
The party finished at around midnight. The offender, his friend, CD and OM got into the offender’s car. CD was still feeling very panicky and started feeling quite hot. She tried to take off her top at one point. She was telling the offender that she needed a drink so he stopped off at a petrol station before continuing.
The offender drove OM home. OM later felt like she was “tripping out” in her bedroom with colours and things going out of place. CD was meant to stay with OM but decided that she wanted to go with the offender instead. The offender also dropped his friend home at some point.
The offender took CD to his house at an address in Calwell. The offender lived at this house with his parents. CD stayed over in the offender’s bed and the two engaged in sexual activity.
The offender drove CD home the next morning at approximately 6am. CD vomited when she arrived. Her father let her into the house. She got into bed with her mother and acted in a manner that caused her mother sufficient concern about her daughter’s welfare that she took her to Queanbeyan Hospital.
The police executed a search warrant on the offender’s residence and vehicle on 11 December 2017. During this search, they located indicia of trafficking, including clip seal bags containing substances and empty tablet capsules. A paintball gun was also seized. The offender’s Apple MacBook was seized and forensic examination conducted later revealed a large number of iMessage chat threads discussing the sale of illicit drugs including MDMA and LSD. The messages indicate that the offender was conducting a business of trafficking MDMA (or ephylone) and LSD during the period 24 June 2017 to 11 December 2017. Forensic examination of the offender’s iPhone revealed a conversation on 27 April 2017 in which the offender offered to sell the same paintball gun which was later seized by police.
Ephylone is a drug which is structurally similar to methylone only differing by three carbon-containing groups. Section 5(2)(d) of the Criminal Code Regulation 2005 (ACT) has the effect that ephylone is considered to be a related drug to methylone and therefore also defined as a controlled drug. It is a psychomotor stimulant and the effects include agitation, alertness and insomnia, which can be followed by extreme fatigue.
Objective seriousness
The offence of supplying a controlled drug to a child is, having regard to the maximum penalty, treated by the legislature as very serious. That is plainly because of the vulnerability of children in relation to the use of illicit drugs and the inability for them to make mature choices in relation to such use. In considering the objective seriousness, regard must be had to the age of the child and whether the offender knew the victim was a child (noting that absolute liability applies to the circumstance that the person is a child), the amount and type of drugs involved, whether the supply was a single incident or a course of conduct, whether any breach of trust or exploitation of a power differential was involved and the reason for the supply.
In the present case, the children were both almost adults, the offender knew or was reckless that they were both children, the supply involved ephylone and LSD, it was a single transaction although involving two different drugs and hence being, to that extent, a rolled-up charge and the motivation was commercial and in order for the offender to ingratiate himself to the victims. There was no breach of trust or exploitation of a power imbalance. It is offending at the low end of the range of objective seriousness for this offence.
In relation to the charge of trafficking in a controlled drug, this involves the trafficking of ephylone and LSD. The trafficking took place over approximately five months. The 55 g of ephylone is approximately 5.5 times the trafficable quantity of methylone. Given the absence of evidence of purity or use, it is not possible to say how many doses of the drug were involved. The weight of the LSD is not clear as the measured weight includes the paper substrate. The trafficking appears to be motivated by both a pecuniary interest and wanting to ingratiate himself to others. It is not proven beyond reasonable doubt that the offender was more than a street level dealer. The offending is at the low end of the mid‑range of objective seriousness.
The possession charge relates to the position of 0.168 g of cocaine. This quantity is consistent with personal use. It is an offence at the low end of objective seriousness.
Section 43(1) of the Firearms Act encompasses possession and use of up to two firearms. The possession of a firearm in this instance involves possession rather than use and involves one rather than two firearms. The firearm was a paintball marker and hence less dangerous than many other firearms. The expert report of Raphael Jackson dated 1 June 2021 indicates that the item was not fully functional at the time of its possession because it required a carbon dioxide bulb in order to make it functional. The offending is at the low end of objective seriousness for this offence.
Subjective circumstances
The offender is currently 22 years old. He was 18 at the time of the offending. He has no criminal history.
The offender’s subjective circumstances are set out in a pre-sentence report dated 27 January 2022, letters from his father and his girlfriend as well as two letters relating to his involvement in the Australian Capital Territory (ACT) Herpetological Association.
The offender was born and raised in Canberra. He experienced a positive childhood and maintains supportive relationships with his parents and older brother. The offender reported that since 2019, he has been in a supportive de facto relationship with a prosocial partner. The offender has lived in his family home for his whole life.
After completing his Year 12 certificate, the offender is completing further studies in environmental science. He is now self-employed and manages an e‑commerce business. This involves selling antiques and items obtained from deceased estates. The offender reported that in 2022, he intends to pursue further studies in business. The offender described a stable financial situation with no outstanding debt.
The offender reported that following being charged with the current offences, he has no longer maintained contact with the majority of his antisocial associates. However, he disclosed that several of his friends are involved in using illicit substances. In terms of leisure and recreation, the offender is a longstanding member of the ACT Herpetological Association, holds an ACT reptile breeding license and regularly participates in local events.
Although the offender stated that he does not consume alcohol, he disclosed a history of illicit substance use that began when he was approximately 15 years old. This specifically involved cannabis. The offender reported that he continues to smoke cannabis infrequently to manage stress and help him with his sleep. He indicated that he does not believe his use to be problematic and that although he would continue to use, he could cease completely if necessary. A urinalysis sample provided by the offender returned a positive reading for cannabis on 24 January 2022.
The offender did not disclose any concerns relating to his physical or mental health.
The offender attributed his offending conduct to the fact that he was young, naïve and influenced by the antisocial peers he was associating with at the time. He claimed to not have comprehended the seriousness of his behaviour nor its impacts on the community and victims, notwithstanding that he was aware that his conduct was unlawful. In relation to supplying a controlled drug to children, the offender appeared to attempt to justify his behaviour by stating that “they would have likely obtained it from someone else at the party if it wasn’t from me”. However, the author of the pre-sentence report noted that the offender accepted full responsibility for his actions and indicated that he agreed with the Statement of Facts. In relation to possessing an unauthorised firearm, the offender denied that he knew the item was an unauthorised firearm. He claimed to have obtained it from a friend and to have had no intentions of using it. He accepted full responsibility for his actions.
The author of the pre-sentence report assessed the offender as being at a low risk of general reoffending. The author expressed the opinion that following the offences, the offender appears to have made a considerable effort to live a more prosocial life and disassociate from antisocial influences. The offender was assessed as suitable for a good behaviour order with a low level of intervention by ACT Corrective Services, suitable for a community service work condition and suitable for an intensive correction order.
Plea of guilty
The pleas of guilty to the counts of supplying controlled drugs to a child and trafficking in a controlled drug were entered following a criminal case conference. They would warrant a discount of 15 percent. The pleas to the counts of unauthorised possession of a firearm and possession of a drug of dependence were entered in the Magistrates Court but after the preparation of a brief. They would warrant a discount of 20 percent.
Time in custody
The offender has not spent any time in custody in relation to these offences.
Delay
The offences were committed in December 2017. Police interviewed the offender at the time and also executed a search warrant. He was subject to a further interview in September 2019. However, he was only first before a court on 22 February 2021 as a result of a summons dated 27 January 2021. There was no explanation for the unreasonable delay in bringing charges. It is a case in which the offender would have known of the likelihood of charges and lived in a state of uncertain suspense. It is also a case in which it is appropriate for the court to express its disapproval of such delay. Both of these matters are factors which may result in a lesser sentence: see Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 at 176-177.
Consideration
The ultimate submission made by counsel for the offender was that the firearm and possession of a drug of dependence charges could both be dealt with by way of good behaviour orders. Further, the two counts of supply and one count of trafficking could be dealt with by way of a non-custodial sentence. This latter submission was controversial, the Crown submitting that having regard to the maximum penalty for supplying drugs to a child and the nature of the trafficking offence, the threshold in s 10 of the Crimes (Sentencing) Act was clearly passed.
The subjective circumstances of the offender are excellent. He has rehabilitated himself. His conduct in the period since the offending demonstrated that the offending represented a “bad patch” for a young man and that his energies are now devoted to lawful pursuits. The unacceptable delay by the authorities in bringing the prosecution has given the offender the opportunity to demonstrate that he is rehabilitated and that his energies are directed to lawful pursuits rather than unlawful ones.
But for the delay in bringing the prosecution, I would have accepted the submissions made by the Crown that there was no appropriate sentence on the supply and trafficking charges except for a custodial one. That is largely because of very significant maximum penalties and the need for general deterrence of both types of offending. In my view, the bringing of charges after such an extended and unexplained period of delay on the part of the police between December 2017 and January 2021 warrants a conclusion that a custodial sentence, even if wholly suspended, is not the only appropriate type of sentence. In my view, the matters can, unusually, be dealt with by way of good behaviour orders with a period of community service.
Orders
The orders of the Court are:
1 On count CAN 719/2021, supply a controlled drug to a child, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for a period of 12 months with the additional condition that he be on probation subject to the supervision of the Director-General and complete 75 hours of community service within a period of 12 months.
2 On count CAN 720/2021, supply a controlled drug to a child, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months with the additional condition that he be on probation subject to the supervision of the Director-General and complete 75 hours of community service within 12 months.
3 On count CAN 723/2021, trafficking in a controlled drug other than cannabis, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months with the additional condition that he be on probation subject to the supervision of the Director-General and complete 99 hours of community service within 12 months.
4 On charge CAN 725/2021, unauthorised possession of a firearm, the offender is convicted, required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months and fined $1000 which is to be paid within three months.
5 On charge CAN 724/2021, possessing a drug of dependence, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months and fined $1000 which is to be paid within three months.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 1 April 2022 |
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