R v Low
[2021] ACTSC 285
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Low |
Citation: | [2021] ACTSC 285 |
Hearing Date: | 1 November 2021 |
DecisionDate: | 1 November 2021 |
Before: | Elkaim J |
Decision: | See [44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – disputed facts – trafficking in a controlled drug other than cannabis – cocaine |
Cases Cited: | R v Harmouche [2020] ACTSC 194 R v Mackinder [2021] ACTSC 176 |
Parties: | The Queen ( Crown) Jake Low ( Offender) |
Representation: | Counsel V Conliffe ( Crown) T Sharman ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 67 of 2021 |
ELKAIM J:
Mr Low, the offender, has pleaded guilty to one charge of trafficking in a controlled drug, namely cocaine.
The plea was entered on 23 July 2020. It followed some negotiations which resulted in the plea being accepted on the basis that the offender was “guarding or concealing the drug with the intention of helping someone else sell it – that help being limited to letting the other person conceal it in his home for future supply”.
But then the Crown changed its mind, perhaps significantly debasing the value of its agreement. It spoke to the informant but he does not seem to have taken any part of the decision. The Crown decided that it was unhappy with the basis for the plea and thought it should endeavour to increase the criminality of the offender to include a far greater involvement. This led to the disputed facts hearing in which the Crown sought to increase the offender’s involvement from concealment to playing a role in the sale of drugs and benefiting from that sale.
No satisfactory explanation was forthcoming about the Crown’s conduct. I frankly find it surprising that the Crown, having agreed to accept a plea on a certain basis, that plea having been entered, then decided to proceed on a totally different basis.
The offender was placed at risk of a greater penalty, and this risk was substantially increased by the matter being consequently transferred from the Magistrates Court to the Supreme Court.
Mr Sharman, on behalf of the offender, did not seem to share my incredulity, but rather, to his credit, proceeded on the basis of defeating the Crown’s allegations. He did however tender the email chain under which the agreement as to the plea was made. He did so as an indication that the offender’s assertion and, in fact, admissions of his involvement was long-standing and consistent.
I conducted the disputed facts hearing on the basis of the evidence put before me. No part of my decision is derived from the Crown’s conduct in reneging on its agreement as to the plea.
The facts are set out in detail in the Statement of Facts which is part of Exhibit A. The following is a summary.
On 11 May 2020, having obtained the necessary search warrants, the police went to the offender’s home. They found about a kilogram of cocaine in a Woolworth’s shopping bag. The bag had been hidden in a wall cavity behind the oven.
Forensic examination of the cocaine was carried out and showed it to have a purity in the order of 75% to 80%. Its value depended on the manner in which it was distributed, but potentially could have been up to $518,000. It was not suggested that the offender stood to gain to this amount. In fact no suggestion was made as to the extent of the benefit likely to be gained by the offender.
The Crown suggested that the strength of its case was to be derived from three matters:
(a)Items found at the offender’s residence during the search warrant. These included:
(i)Handwritten and typed notes (suggesting a ‘tick off’ of sales);
(ii)Scales;
(iii)A mobile phone with an encryption capacity;
(iv)A “cutter” substance, namely a white powder in a black bucket;
(v)A packet of Creatine, another possible cutter;
(vi)$2,200 in cash;
(vii)A hydraulic press;
(viii)The brick of cocaine.
(b)The location of some of the above items in the residence:
(i)The cocaine was found in a cavity behind the oven;
(ii)The notes were found in the offender’s bedroom, some of them apparently secreted in an architrave;
(iii)The cash was found in the offender’s bedroom.
(c)Forensic links between the items and the offender:
(i)His fingerprints were located in the area where the cocaine had been concealed;
(ii)His DNA was found on the scales and on the cocaine wrapping.
The Crown stressed that I should look at the above matters in an holistic fashion. I should not examine each in turn to see if they had an alternative, perhaps innocent, explanation. The Crown is correct as to the general approach to be taken, but that does not mean that explanations for the individual indices cannot be taken into account. For example the DNA on the cocaine wrapping and the fingerprints near the hiding place are equally consistent with simply concealing the drug as opposed to dealing with it.
A cutter is a substance used to add to a drug to increase its volume. The Creatine was in a very old packet. There was no suggestion of recent use. There was also steroid material found in the house, perhaps consistent with an alternate use of the Creatine. The white powder was not identified.
The offender was a drug user. This is confirmed by his previous conviction and by various statements made by him. The presence of the scales (with cocaine residue) is consistent with this usage.
The hydraulic press is a device that can be used in the drug trade for the compression of material, perhaps following its dilution with another substance. But this press could have had other uses, and more importantly, items that might have been associated with its use in this way were missing. Detective Sgt Fleming said that he did not find a mould nor a stamp normally associated with compaction. An example of a stamp can be seen in the photograph of the brick of cocaine included in Exhibit B.
The notes clearly relate to the drug trade. But other than being found in the offender’s bedroom there was no other link to the offender. The handwriting on the notes called out for comparison to that of the offender. No such comparison was made. I do not blame the police for this. The police were content, as stated by senior Constable Dick, with the plea that had been agreed. Accordingly further written examination and investigation did not occur.
The same is true of the mobile phone. No follow-up ever occurred on the contents of the phone.
All of this is not surprising. The police were involved in a much wider investigation of another person (see Exhibit 4) who had been at the offender’s premises on the weekend immediately before the Monday on which the search warrant was executed. In addition this person’s motor vehicle, a Range Rover Evoque, was still present at Mr Low’s residence on the Monday. The fact that it was left at the offender’s residence might be seen as consistent with other items associated with that person also being left in the ‘mess’ that characterised the residence and the garage in which the hydraulic press was found.
As for the cash, it is suspicious. But relative to the amounts of drug dealing being suggested by the Crown it is a relatively insignificant amount.
The Crown’s submission was that the whole of the evidence gave rise to a finding that, beyond reasonable doubt, the offender was involved in the drug trade both as to its distribution and its production of profit. The Crown said this was a case of “greed not need”.
I do not think the Crown has proved its case beyond reasonable doubt. At first sight the collection of items at the offender’s home give rise to a good deal of suspicion. But it is to be remembered that he has not denied his involvement at all. He was a user of cocaine. He had been visited by a person of great interest to the drug investigating police officers.
It is no surprise that his DNA was found on the cocaine or his fingerprints in the area of the concealment. The police seemed to have had prior knowledge that the cocaine was to be brought to the residence. There was no suggestion that the hydraulic press was utilised to put it into its brick-like state. Further, the hydraulic press was found in a “dirty and grimy” state.
I do agree with the Crown that the offender’s statement of non-involvement in the Pre-Sentence Report should be treated with caution. I have placed very little weight on it. I have simply found that the Crown has not discharged its onus to prove the case against the offender.
As to objective seriousness, on the basis of my findings limiting the involvement of the offender, I think his offending should be assessed at below medium for this type of offence. I have taken into account the amount of drugs involved, their value and their potential harm. Regrettably drug use is rife in the community and while there is a lot of cocaine involved, as pointed out by the Crown, it is 1/3 of the amount necessary for a commercial quantity.
The offender was born in 1991. He had a normal and supportive upbringing.
After finishing Year 12 the offender began an apprenticeship as an electrician in 2010. He has worked as an electrician since that time.
The offender hurt his foot in 2018 which somehow led to a problem with alcohol. He seems to have overcome the problem, now drinking only socially, about once a week. He started using cocaine in 2016. Over time his usage increased and then, in 2019, he started to abuse prescription medication. Since his arrest in May 2020 he appears to have stopped his use of drugs.
The offender has a history of depression which was heightened by his use of drugs.
The offender has always maintained that he was holding the cocaine for another person. The Pre-Sentence Report says he has a medium to low risk of general reoffending, derived from his past use of drugs and friendships with criminals. If he can stay away from these people there is a good chance, with his stable employment and supportive family, that he can stay out of trouble.
My latter comments are supported by a letter from his employer, Mr John Bruce. He says that the offender “has a very good work ethic and is a pro-active mentor to the apprentices and younger electricians making him a key employee of Woodlands business model”. He adds that the offender’s employment is secure.
There is a letter from the offender’s mother. She describes his upbringing, his involvement in sport and his path after leaving school. She talks about a serious relationship that he had. The relationship ended but there seemed to be signs that it may reignite. Mrs Low says that:
Jake is extremely sorry for putting the family through this and there would never be a repeat offence. My son is a good person he just did a very stupid thing for a so called friend. If granted the Intensive Corrections Order he will still reside with us like the pass [sic] 12 months. I would not have it any other way. He will continue his employment at Woodland Industries.
I think the offender has shown remorse as stated by his mother and as reflected in the plea of guilty. This was at the earliest stage and entitles the offender to a discount of (for rounding-off purposes) just under 25%.
The Crown submitted that the offender should receive a sentence of full-time custody whether I found in its favour, or not, on the disputed facts hearing. Mr Sharman said an Intensive Correction Order would be appropriate whatever my finding, although the terms of the ICO might differ.
The Crown emphasised the need for public deterrence, in particular the need to send a message to drug dealers that they will go to prison if they are involved in this trade.
The Crown provided me with some comparable cases. Every case is different and must be decided on its own facts. Nevertheless, other decisions can provide guidance. I think the cases most relevant are R v Harmouche [2020] ACTSC 194 and R v Mackinder [2021] ACTSC 176.
In Harmouche an assertion by the offender that he was not involved in the sale and distribution of drugs found behind his open was rejected. 389.23 grams of cocaine were involved. The Court found that he was involved in the sale of drugs to other persons. The objective seriousness of the offence was rated as “moderate”. Mr Harmouche was sentenced to 14 months’ imprisonment, suspended after 5 months.
In Mackinder the offender was found in possession of 503 grams of cocaine. It was accepted that he was no more than a courier transporting drugs to discharge a debt to his own supplier. He received an ICO of two years and six months.
Had I found the disputed facts proven I would have had no hesitation in imposing a full-time prison sentence.
Each of the above two cases has points of distinction. Having regard to my finding on the disputed facts, I am satisfied that at ICO would not be an inappropriate penalty. The Crown submitted that an ICO is not “obviously punitive”. But it is a prison sentence and any breach of its conditions will place the offender into gaol. He will be monitored over a long period. I think there are teeth in an ICO and, in appropriate circumstances, it does meet the requirements for general deterrence.
In addition, as appropriately pointed out by the Crown there are a number of subjective factors which mitigate in the offender’s favour. There is the early plea of guilty, a very limited criminal record and steady employment which will continue. In addition, as pointed out by Mr Sharman, the offender has not breached the very strict bail conditions under which he has been living.
This offender is capable of being rehabilitated. To place him into full-time custody would, in my view, put his rehabilitation at significant risk. I think he is a prime candidate for an ICO. He will be monitored and he will need to live within the law, at risk of his future liberty.
The offender has been assessed as suitable for an ICO, in both an assessment for that purpose, dated 28 August 2020, and in the Pre-Sentence Report, dated 14 July 2021.
The term of the ICO, I think needs to be lengthy, to reflect the seriousness of the drug trade, the amount of cocaine involved and the need for general deterrence forcefully, and correctly, advanced by the Crown.
Orders
I make the following orders:
1. On the charge of trafficking in a controlled substance other than cannabis, namely cocaine, occurring on 11 May 2021 [CC 5733/2020], the offender is sentenced to imprisonment for a period of 2 years, 10 months (reduced from 46 months), to commence today 1 November 2021 and end on 31 August 2024.
2. The above sentence of imprisonment is to be served by way of an Intensive Correction Order.
3. I suggest to the Director-General of Corrective Services that a condition of the ICO be that the offender reside with his parents for the whole of the term.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of his Honour Justice Elkaim. Associate: Date: 1 November 2021 |
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