R v Jember
[2016] ACTSC 116
•24 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jember |
Citation: | [2016] ACTSC 116 |
Hearing Date: | 24 May 2016 |
DecisionDate: | 24 May 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 12 months’ imprisonment suspended on offender entering into a good behaviour order for 12 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –suspended sentence order made – strong subjective circumstances |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code 2002 (ACT) s 308 Drugs of Dependence Act 1989 (ACT) s 164 |
Parties: | The Queen (Crown) Fasil Jember (Offender) |
Representation: | Counsel Mr K Lee (Crown) Ms T Warwick (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law (Offender) | |
File Number: | SCC 149 of 2015; SCC 38 of 2016; SCC 39 of 2016 |
MURRELL CJ:
The offender pleaded guilty to two offences. The first offence is that on 12 October 2014 he possessed a prohibited substance, namely MDMA (5.349 grams) for the purpose of supplying it to another person. This is an offence against s 164(3)(c) of the Drugs of Dependence Act1989 (ACT). It carries a maximum penalty of five years' imprisonment.
In the Magistrates Court, the offender pleaded not guilty to the charge and the matter was set down for hearing in July 2016. On 11 March 2016 he pleaded guilty and the matter was committed to this Court for sentence.
The second offence is the offence that on 13 December 2014 at Canberra the offender dishonestly appropriated one television set belonging to Morgan Bell with the intention of permanently depriving Mr Bell of the property. This is an offence against s 308 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years' imprisonment.
The plea of guilty to the theft count was entered a matter of days before the trial was to proceed and came in the face of a very strong Crown case. In these circumstances a discount of no more than 10 per cent should be applied pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT).
The offender spent eight days in custody in relation to the drug charge because of an administrative error.
Possession of a prohibited substance
At 3:08 am on Sunday, 12 October 2014 police approached the offender at Mooseheads Nightclub. In response to police questioning he stated that he had MDMA in his left pocket. Police located 57 capsules containing a total of 5.349 grams of a crystalline substance in which MDMA was detected.
The offender participated in an interview, during which he said that he had constructed 60 capsules and he believed that each capsule contained 0.01 grams of MDMA. The offender informed police that he intended to consume some of the capsules and share others with friends. The offender stated he was not actively seeking to sell the capsules, but if someone wished to approach him, he would consider selling them. He also told the police that, if sold, the capsules were worth $20 each; in other words; more than $1,000 for the total quantity in the event that all the capsules were sold. The offender stated that on the night in question he had consumed one capsule and had given one to a friend.
This offence is of significant objective seriousness because of the number of capsules and the quantity of MDMA. It is difficult to believe that the capsules were primarily for personal use or supply to friends, given the quantity, packaging and location where the offender was apprehended. I infer that a substantial number of the capsules were intended for commercial sale. On the other hand, there is no evidence of actual sale. Further, the offender cooperated with the police and made immediate admissions regarding the location, nature of the substance and intention to supply.
Theft offence
Mr Clynch, who was a friend of the offender, asserted that the victim's brother owed money to Mr Clynch in relation to the sale of a motor vehicle some years earlier. At 9.45 pm on 13 December 2014, Mr Clynch, the offender and two other men entered a residence occupied by the victim and his brother. The offender understood that the purpose of the attendance was to collect the money owed by the victim's brother to Mr Clynch and that it was agreed that the money would be paid without issue.
When the group arrived at the residence the victim's brother was alone. Mr Clynch demanded money from him. The victim's brother was frightened. Although the victim's brother informed the group that it was not his television set, that it belonged to his brother, the group removed the television set. The victim’s brother ran from the residence and called the police. The offender and the other men attempted to load the television set into Mr Clynch's vehicle without success and then hid it at a neighbour's premises. Later, the offender's fingerprints were located on the stolen television set.
The offender was arrested on 26 February 2015. Proceedings against one of the offenders were discontinued. Proceedings against Mr Clynch are not yet resolved.
This offence is of substantial objective seriousness. The offender was in company, which must have made it more frightening for the victim's brother, who was at home alone at night. The property that was taken must have been of limited value, although the precise value of the television set is unknown. It would have had no sentimental value. It was recovered. However, the circumstances of the offence are serious, even if the property that was taken was of limited value and that this matter calls for a sentence of imprisonment, particularly given the offender's criminal history.
Offender’s criminal history
The offender’s adult criminal history commenced in 2010 when he was 18 years old and he committed driving offences. He was fined, placed on a good behaviour order and disqualified. In 2011 there were offences of possessing a knife and failing to appear, for which good behaviour orders were imposed. There was also an offence of possessing a drug of dependence for which the offender was fined. In 2012, there were offences of damaging property for which the offender was fined and two offences of assault occasioning actual bodily harm. The offender stated that the victim of these matters was his then girlfriend. He received a six‑month sentence that was initially suspended, but later the offender was required to serve four months of periodic detention because he breached the good behaviour order. Because of breaches of the periodic detention order, ultimately he served a short period of full-time imprisonment.
Subjective circumstances
The offender was 22 years old at the time of the offences. He is now 24 years old.
The offender was born in Ethiopia and raised by his aunt and uncle with their 12 natural children. As a child, he believed that they were his parents. He was raised in a village in Ethiopia where his aunt and uncle were subsistence farmers. It was a simple but happy life. The family had neither a telephone nor a television.
Things changed dramatically when the offender was 11 years old. He was taken to the city, where he learned that his aunt and uncle were not his natural parents and that he had an older brother, Teddy. He met his older brother for the first time. He was informed that his natural father resided in Australia and that he and his older brother were to travel to Australia to live with their natural father. They did so.
It was a dramatic and traumatic cultural change from the offender's perspective. In his new Australian home he resided with his father, stepmother and two young stepbrothers, as well as his natural brother. He had a difficult relationship with his father and was distant from his step-mother.
Having arrived in Australia with no English, he learned English when he was 12 and 13 years old. The following year he entered Year 7, but was still struggling to master the English language. He felt that his father had high scholastic expectations that he was unable to satisfy. It is the offender's belief that this was part of the cause of the problematic relationship that developed with his father.
The offender's father asked him to leave the house in about 2006 or 2007. After he left, the offender lived in refuges until taken in by the family of a school friend. He remained in their home for three or four years, which was a very stable and happy period of the offender's life. He developed a close relationship with his foster-mother and he maintains regular contact with her and with his foster brother, to whom he referred in evidence as his adopted brother. During this period of 2007 to about 2010 or 2011, the offender’s foster-mother assisted him to obtain employment and he worked in various jobs.
In about 2010, the offender left the foster home and began living by himself. He was about 18 years old. The offender began to associate with a poor peer group and committed several offences.
The offender acknowledged that, in the past, he has associated with a poor peer group and said that he was doing so at the time that he committed the theft offence. He said that he no longer associates with those people.
Recently, the offender has resumed contact with his natural family: his brother, his natural father and his step-brothers. He is living with his brother, Teddy, who has full-time employment. The Court received a letter from Teddy in which Teddy acknowledged that, in the past, he had not been supportive of his brother, that the offender seemed to be on the cusp of a change and that he intended to support the offender.
The offender commenced a building apprenticeship a couple of years ago and was working four days a week as an apprentice. However, because of these charges, he left the job. Recently, he has been working two days a week for an interior linings company. When these proceedings are resolved he intends to return to his former employer and complete his apprenticeship.
The offender has been a cannabis user since he was 16 years of age and a "social user" of more serious drugs. On 15 March 2016, he declined to provide a urine sample at the Alexander Maconochie Centre on the basis that it was "unnecessary". He also failed to attend for a CADAS assessment. He said that he may not have received the letter asking him to attend and was unaware of the requirement to do so. He said that he has not used drugs in the past few months.
The offender's commitment to remaining drug free is somewhat unclear and I am concerned about whether he is serious about staying away from drugs and drug-using associates but I will give him the benefit of the doubt on this occasion. With close supervision he may be able to remain drug free. There is no suggestion that he is addicted to drugs.
The author of the pre-sentence report says that the offender showed limited insight into his offending behaviour, but when he gave evidence it seemed to me that he had a reasonable degree of insight, considering his age and cultural background.
In relation to these offences, the offender was supervised on bail and his compliance was deemed satisfactory, although in the past there have been problems with compliance. The offender said that at 24 years of age, with a stable home environment, support from his natural family and good employment prospects, as well as a regular lifestyle including regular gym attendances, he is moderately confident that he can maintain a healthy and lawful lifestyle. I believe that the offender will require support to achieve that goal but I am optimistic that with appropriate support he may be able to do so.
The pre-sentence report refers to "a significant history of physical abuse and associated trauma symptoms" but does not elaborate. The offender may benefit from counselling.
Sentence
I have reviewed the sentencing statistics in relation to both offences and the sentences that I would otherwise consider to be appropriate are consistent with those yardsticks.
In relation to each matter, I would have sentenced the offender to nine months' imprisonment but in each case I will discount the sentence to eight months’ imprisonment to account for the plea of guilty. I will partially accumulate the sentences.
For the drug offence, the offender is sentenced to eight months' imprisonment from 16 May 2016 to 15 January 2017. For the theft offence, the offender is sentenced to eight months' imprisonment from 16 September 2016 to 15 May 2017. That is a total period of 12 months' imprisonment.
The sentence of imprisonment is suspended from today on the offender entering a good behaviour order for a period of two years from today. The good behaviour order is conditional on the offender accepting the supervision of Corrective Services, including submitting to all requests for drug testing and undertaking any program or counselling recommended by Corrective Services. The offender is to report to Corrective Services at Eclipse House by 4:00 pm today.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 4 July 2016 |
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