R v Heaven
[2019] ACTSC 31
•6 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Heaven |
Citation: | [2019] ACTSC 31 |
Hearing Date: | 6 February 2019 |
DecisionDate: | 6 February 2019 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in a trafficable quantity of cannabis – plea of guilty in Magistrates Court – previous criminal history on similar charges in Victoria – offender a resident of Victoria – no assessment made for Intensive Correction Order – general deterrence – specific deterrence – partially suspended sentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 603(5) |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 R v Bui [2017] ACTSC 262 R v Robertson [2014] ACTSC 354 |
Parties: | The Queen (Crown) Aaron Heaven (Offender) |
Representation: | Counsel V Conliffe (Crown) J Stewart (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 275 of 2018 |
MOSSOP J:
Introduction
Aaron Heaven has pleaded guilty to a charge of trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $150,000 or 10 years imprisonment or both.
Facts
At about 4.00pm on 4 June 2018 police were conducting surveillance in Melba in the Australian Capital Territory (ACT). They observed a white coloured Ford utility vehicle park in the driveway of an address of interest to police. A short time after parking, the vehicle left the driveway and drove eastbound on John Cleland Crescent. Police then observed the vehicle turn right into Coulter Drive, Belconnen. A short time later, police activated their emergency lights and sirens directing the vehicle to stop, which it did. Police asked the offender if he would consent to a search being conducted of his person and of the vehicle he was driving. He did consent.
In the tray of the vehicle police observed two large locked compartments. Police asked the offender if he had a key for the compartments and he said that he did not. They asked him to empty his pockets and a key fell from the back pocket of his pants. Police used the key to open the compartments. In the passenger side compartment police observed three large green bags which smelt strongly of cannabis. One of the bags was opened and it was observed to contain cannabis head. The offender told police that the cannabis in the bags weighed 30 pounds. Subsequent laboratory testing confirmed that the substance in the bags was cannabis and that it had a total weight of 14.915kg. The offender was transporting the drugs from the address in Melba to a McDonald’s carpark in Banks. He was there to hand over the drugs in exchange for an unspecified amount of money, return the money to the house from which he had come and receive a payment of $10,000.
Objective seriousness
Schedule 1, part 1.2 of the Criminal Code Regulations 2005 (ACT) provides that a trafficable quantity of cannabis is 300g and that a commercial quantity is 30kg. The quantity is in the middle of this weight range. Trafficking is defined in s 602 of the Criminal Code to involve a variety of activities. In the present case, the Agreed Facts only establish transport (and, necessarily, possession) of the drugs. There is no evidence that the offender himself intended to sell the drugs, although his plea of guilty admits at least that he intended or believed that somebody else would sell it. That he transported the drugs at the request of others is consistent with the admissions made during the course of the preparation of the pre‑sentence report.
In Bui v The Queen [2015] ACTCA 5 at [41] the Court summarised some of the principles relating to the sentencing of drug traffickers indicating that the role of the offender and level in the drug hierarchy, the weight of the drugs involved and the motivation for the offence were all relevant considerations. The Court indicated however that the amount of the drug was not of chief importance in determining the appropriate sentence.
In summary, in the present case:
(a)the quantity transported was substantial;
(b)he transported it with the intention of making a profit, namely, $10,000; and
(c)whilst he was involved in a significant aspect of the wholesale end of the illicit drug operation, he was doing so only as a courier as opposed to a principal in the operation and had no involvement in planning or the broader illegal operation.
I assess the offences as being in the mid range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are described in a report entitled “Extended Pre-sentence Assessment – Outcome Report” prepared by the Department of Justice and Regulation in Victoria on 14 January 2019, in a letter written by the offender tendered on sentencing, as well as oral evidence that he gave.
The offender is 42 years old. He is married. He has two daughters with his current wife and another child from a previous relationship. His two daughters are aged 16 and 18.
He was previously a real estate agent but a conviction for cultivating cannabis in 2007 led to him no longer be able to be registered for that profession.
He then worked as a supervisor for a building company for a number of years. A friend of his then asked him to become involved in a different building company that he operated. That occurred in about June 2017. The company was substantial having 22 development sites at the time when he got involved in it. The offender gradually discovered that there were difficulties with the business conducted by that company. At about the end of 2017, the offender became aware that the company had cash flow difficulties and borrowed $100,000 from family friends in orders to assist with the apparent crisis. He anticipated that the money would be able to be repaid shortly. The money that was put into the business was not repaid and the business eventually failed. The time frame for that was not well described in the evidence. However, as at the date of the offending conduct the offender was aware that he had lost that money and perceived himself to be in financial difficulty.
He reported to the authors of the pre-sentence report feeling panic and desperation at his financial circumstances at the time. He had returned to Canberra and met an associate who, after having had the offender’s financial woes explained to him, asked him to transport a quantity of cannabis for a sum of money.
He was assessed by the author of the pre-sentence report as being a medium risk of reoffending according to the relevant assessment tool used by Corrections Victoria. The report indicated that his highest criminogenic needs are related to “family/marital” matters and alcohol and drug problems.
He and his wife are currently going through a separation, although he gave evidence that they were still working on their relationship. The authors of the pre-sentence report recorded that he does not appear to have any prosocial family supports other than his children within Victoria. He has other family but they are located interstate.
He and his wife commenced cocaine use together and had been using every weekend until about two weeks prior to his assessment interview with the author of the pre‑sentence report. In oral evidence he estimated that he had spent around $2000 on cocaine at the rate of $300-$600 per occasion when he purchased it. It is difficult to reconcile these figures with the 18 month period over which he indicated he was using cocaine. His evidence was somewhat vague as to the cost on each occasion or overall. While his disclosure of cocaine use was voluntary, the fact that he continued to use cocaine for recreational purposes after he had been arrested in relation to the present charge indicates that he has not appreciated the gravity of offending arising from being involved with illicit drugs. Further, his decision to spend his money on recreational drugs rather than the repayment of the loan of $100,000 which he had lost does not reflect well upon his financial priorities.
He has a long history of cannabis use commencing at the age of 13 or 14.
He currently runs a small building business which trades as Hawkeye Projects. There was evidence that he had a number of jobs in progress including what appear to be two substantial jobs and a number of smaller ones. A substantial period of full-time detention would have a significant adverse effect on this business. He also gave evidence that he is involved in another business which trades under the name 4Walls+More, although it is not clear the extent of current projects for that business. His evidence as to precisely how his business interests would be managed in the event of a custodial sentence was vague and it was not apparent from his evidence that he had undertaken any planning in that regard.
Although he reported symptoms of depression, he has never been psychiatrically assessed or diagnosed with any mental illness.
The author of the pre-sentence report assessed him as suitable for a community corrections order. This is obviously a creature of Victorian statute. He has not been assessed for suitability for an intensive corrections order in the ACT and it is unlikely that he would be found suitable for such an order given that he presently resides in Victoria and has a business which he needs to run there.
The offender also tendered a number of references. The references indicate that he has been committed to his daughters’ participation in the local basketball club and that he has at times been the coach of his daughters’ team. The references indicate that he is committed to his work as a builder and to his children. A letter from a person who appears to be his accountant indicates that he has been receiving her assistance with issues such as business guidance, personal budgeting and cash flow management.
Criminal history
The offender has a limited criminal history. In 2007 in Victoria he was convicted of cultivating cannabis and given a suspended sentence of imprisonment of six months. There were no other details of that offending available, although, having regard to the fact that he received a suspended custodial sentence, it was obviously not a trivial offence.
Plea of guilty
The offender pleaded guilty in the Magistrates Court. He initially pleaded not guilty but change his plea to guilty after the provision of the brief of evidence. The plea has obvious utilitarian value notwithstanding the strength of the Crown case. It is also reflective of his acceptance of responsibility. I will allow him a discount of 20% upon the custodial sentence that I would otherwise have imposed.
Time in custody
The offender spent two days in custody attributable to this charge. I take this period into account in determining the appropriate sentence.
Consideration
I was referred by the parties to a number of comparable cases.
R v Robertson [2014] ACTSC 354 involved a very significant amount of cannabis being located in the offender’s car. Burns J proceeded on the basis that it was the offender’s intention to sell some of it as a subsistence dealer. The offender had a significant criminal history, although none of offending was in the last 12 years. He was given a six-month suspended sentence and a good behaviour order for 18 months.
R v Hasani [2015] ACTSC 161 involved three counts of trafficking trafficable quantities of cannabis and a charge of cultivating a trafficable quantity of cannabis. The first involving five pounds and the second involved four pounds. The third and fourth offences related to in excess of nine pounds of cannabis and 17 plants found at the offender’s home. The offender was otherwise of excellent character, was 44 years old and had no prior criminal convictions. She had come to Australia as a refugee from Kosovo. She used the proceeds of her illegal enterprise to service her gambling addiction. She had a significant cardiac problem for which she had double bypass heart surgery from which she was still recovering at the time of sentence. She was given a total effective sentence of 18 months imprisonment and the sentence was wholly suspended subject to a good behaviour order.
R v Hoang [2016] ACTSC 272 involved a person found with 22.5kg of cannabis. He was to be paid $550 for the task of delivering the cannabis. The offender had no prior convictions. Specific deterrence did not loom large for the sentencing judge. He had been in custody on remand for a substantial period. He was sentenced to two years imprisonment suspended after six months. This required the offender to spend an additional five weeks in custody beyond the sentencing date.
R v King [2017] ACTSC 119 involved an offender whose offence involved a total of 8.7kg of cannabis. He was a grower and seller, neither at the highest nor the lowest level of the drug trafficking hierarchy. He sold in order to be able to purchase cocaine and also for profit. He was 47 years old and had previous convictions relating to trafficking in cannabis as well as other drugs. He was sentenced to 18 months imprisonment suspended after nine months.
In R v Bui [2017] ACTSC 262, the offender had travelled from Sydney and had given his co-offender a 1.36kg bag of cannabis in exchange for $20,000. His role was as a courier. He had spent 37 days in pre-trial custody. He was sentenced to 10 months imprisonment and the sentence was suspended from the date of sentence.
The offender in this case has a limited criminal history and a demonstrated capacity to live lawfully and raise a family. Notwithstanding the present charges, he has continued to operate a business so as to maintain himself and his family. Unfortunately, he has a previous conviction relating to cultivation of cannabis and has admitted cocaine use in the recent past, including a period during which he was the subject of the present charge. The offending conduct was affected by his perception of dire financial circumstances. Although couriers are a significant aspect of large-scale illicit drug distribution and hence the conduct must be treated seriously, he had no role in the overall planning or conduct of any larger scale distribution business. Having been told that he would be paid $10,000 for driving the drugs from one end of Canberra to the other, he must have known that he was playing a significant role in a large-scale distribution exercise. Nevertheless, the case is one in which the gravity of the offending is less than a case in which both possession and sale by the offender was contemplated.
It is clearly a matter in which the only appropriate penalty is a custodial one. Having regard to the fact that the offender does not presently have an illicit drug use problem and denied that he was ever addicted to cocaine, it is not a matter in which an intensive correction order would be appropriate. That is compounded by the unlikelihood of being found suitable for such an order giving his place of residence and business.
In my view, the appropriate starting point is imprisonment for 15 months. A reduction of 20% on account of the guilty plea gives a sentence of 12 months. Counsel for the offender submitted that a wholly suspended sentence of imprisonment would be appropriate. On the other hand, counsel for the Crown submitted that any sentence should involve a period of full-time custody. Both general and specific deterrence are significant sentencing considerations. In this case specific deterrence and rehabilitation are also closely linked. In my view, a short period of full-time custody is warranted because having seen and heard the offender give evidence, I consider that specific deterrence requires it. A short period of imprisonment is necessary to bring home to the offender that involvement with illicit drugs is very serious offending and to deter him from any such conduct in future. Having said that, having regard to the fact that this will be his first time in full-time custody, only a short period is necessary to bring home the reality of the custodial sentence and indicate to him the importance of not breaching the good behaviour order to which the suspension of the sentence will be subject. I will impose a good behaviour order for a period of three years from the date of the suspension of the sentence. Amongst the additional conditions that I will impose on the good behaviour order will be one permitting drug testing so as to permit those supervising him to monitor and address any illicit drug use. Given the leniency of the sentence, it should be clear to the offender that should he breach the good behaviour order by further offending it is likely to lead to an additional period of full-time custody.
Orders
The orders of the Court are:
1. The offender is convicted (on charge CC2018/7357, traffic in a trafficable quantity of cannabis) and sentenced to imprisonment for a period of 12 months from 6 February 2019 until 5 February 2020.
2. The sentence is suspended after the offender has served one month from 6 February 2019 until 5 March 2019 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following additional conditions:
a. that he undertake medical treatment and supervision as directed by the Director General;
b. that he supply samples of blood breath hair saliva or urine for alcohol or drug testing if required by a corrections officer;
c. that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by a corrections officer.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 25 February 2019 |
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