R v Holt
[2018] ACTSC 376
•22 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Holt |
Citation: | [2018] ACTSC 376 |
Hearing Date: | 22 November 2018 |
DecisionDate: | 22 November 2018 |
Before: | Burns J |
Decision: | See [15] – [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis – possession of drug of dependence, namely methylamphetamine – late plea of guilty – significant criminal history – offences committed while on parole |
Legislation Cited: | Criminal Code 2002 (ACT) s 603(8) Crimes (Sentence Administration) Act 2005 (ACT) s 149 Drugs of Dependence Act 1989 (ACT) s 169(1) |
Parties: | The Queen (Crown) Brad Holt (Offender) |
Representation: | Counsel N Deakes (Crown) M Hassall (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 108 of 2018; SCC 109 of 2018; SCC 297 of 2018 |
BURNS J
Brad Alwyn Holt, you have entered pleas of guilty to charges that, on 11 January 2018 you trafficked in cannabis (CC18/1550), and that on the same date you possessed a drug of dependence namely methylamphetamine (CC18/13875).
The charge of trafficking in cannabis is a charge contrary to s 603(8) of the Criminal Code 2002 (ACT) and carries a maximum penalty of three years’ imprisonment, a fine of $45,000, or both.
The charge of possession of a drug of dependence, in this case methylamphetamine, is contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) and carries a maximum penalty of two years’ imprisonment, a fine of $7,500, or both.
A comprehensive Case Statement was tendered by consent as part of the Crown tender bundle. I will not at this time recite the facts. It is sufficient to note that on the early morning of 11 January 2018 you were located in a motor vehicle in Narrabundah. A search of the motor vehicle located 401.1 g of cannabis, which is the basis of the charge of trafficking in cannabis, and 4.095 g of methylamphetamine which is the basis of the charge of possession of a drug of dependence.
The plea of guilty before me has been made on the basis that you were in possession of the cannabis, guarding it for another person who you knew was to use that cannabis to sell or supply at least part of that drug. A number of text messages located on your telephone and the telephone of another person who was located nearby tended to support the proposition that you were in possession of that drug for the purposes of guarding it for another.
The amount of cannabis involved was not particularly high and nor was the amount of methylamphetamine. I would assess the offence of trafficking in cannabis as at the border of the low to mid-range of such offences and I would assess the charge of possession of a drug of dependence as being in the low-range of such offences.
It is a matter of significant aggravation with respect to these offences that you were on parole at the time that you committed them. On 29 May 2015 you were sentenced in the New South Wales District Court to an aggregate term of imprisonment of four years and six months with respect to drug supply offences. Your parole was transferred to the ACT in November 2017. That was only just less than two months before you were arrested with respect to the present charges.
You were originally charged with a more serious offence but you entered a plea of guilty to the present charge of trafficking in cannabis on the day that your trial was due to commence. A fresh indictment alleging that offence was filed by the Crown that day. It is clear that the plea of guilty was entered after negotiations between your legal representatives and the Crown.
It cannot be said that this was an early plea of guilty. Indeed, it was quite late. I do accept that there was an element of utilitarian value with respect to your plea and I also accept that it does evidence some remorse on your behalf, particularly in the context of other expressions of remorse that you have made in dealing with others subsequent to you being arrested and remanded in custody. I will reduce by approximately five per cent the sentence that I would otherwise have imposed with respect to these matters but for your pleas of guilty.
When I inevitably record convictions with respect to these charges, your current parole order will be automatically revoked, leaving you liable to serve a period of one year and nine months’ imprisonment from today, 22 November 2018.
I intend to reset your non-parole period. In doing so, I will take into account the period of 114 days that you have spent in custody with respect to the present charges, prior to sentence. In my opinion it is not appropriate to back-date the commencement date of the sentences which I will impose to take into account the 114 days that you have already spent in custody prior to sentence. That is because, in effect, you will already be in receipt of significant leniency with regard to sentencing for these matters because the sentences which I will impose will, in effect, be entirely concurrent with the sentence that you remain liable to serve as a consequence of the cancellation of your parole order. But, as I have said, I will take into account those 114 days in determining when you should next be eligible for release on parole.
I take into account the contents of the documents which were tendered by your counsel. I note the Pre-Release Report, which was prepared for the Sentence Administration Board, dated 19 June 2018. I take into account the contents of that report with regard to your subjective features, and in particular your history of drug abuse.
You have a very significant criminal history, which disentitles you to any significant leniency with respect to sentencing for these present charges. Indeed, as the prosecutor has submitted, the nature of your criminal history suggests the need for individual deterrence in sentencing and for the Court to impose sentences which will bring home to you the fact that continuing to offend in this way, and particularly when you are subject to a parole order, is likely to have real consequences. Balanced against that is the fact that I am satisfied that during the period that you have spent in custody recently, you have taken significant steps towards rehabilitation from drug abuse. It is clear to me, from your criminal history, that much of your criminal offending is related to drug abuse. I have no doubt that if you are able to address drug abuse you will be able to live a law-abiding life and of course any such rehabilitation on your part from drug abuse will significantly reduce the prospects of any re-offending.
At the present time I have to say that your prospects for rehabilitation are guarded, despite the clear, obvious, steps that you have taken towards rehabilitation in the AMC. Much will depend on you being able to maintain your commitment to avoiding relapse into drug offending once you are released from custody, and that is yet to be demonstrated.
Sentence
With respect to the charge of trafficking in cannabis, I will record a conviction and you will be sentenced to 11 months’ imprisonment, commencing on today, 22 November 2018 and expiring on 21 October 2019.
With regard to the charge of possession of a drug of dependence, you will be convicted and sentenced to one month imprisonment, commencing 22 October 2019 and expiring on 21 November 2019.
The aggregate term of imprisonment that I have imposed is therefore one of 12 months, commencing on 22 November 2018 and expiring on 21 November 2019.
The parole order of 31 July 2018 is cancelled by virtue of s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) and, by order, you will be placed in the director‑general’s custody to serve a period of imprisonment by full-time detention equal to the period of imprisonment that you were liable to serve under your sentence on your parole release date.
I will set a new non-parole period, expiring on 21 January 2019.
I note that the charge CC2018/1143, a transferred matter, has been withdrawn by the Crown.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 29 May 2019 |
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