R v McCallum
[2020] ACTSC 15
•28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McCallum |
Citation: | [2020] ACTSC 15 |
Hearing Dates: | 3 September 2019, 7 November 2019 and 28 January 2020 |
DecisionDate: | 28 January 2020 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to imprisonment from 28 January 2020 to 29 October 2022, fully suspended for participation in a drug and alcohol treatment order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in cocaine – Trafficking in cannabis – Possession of prohibited weapons – Money laundering – Outlaw motorcycle gang – Prospects of rehabilitation – Drug and alcohol treatment order |
Legislation Cited: | Confiscation of Criminal Assets Act2003 (ACT) Crimes Act 1900 (ACT) ss 114B, 144C Prohibited Weapons Act 1996 (ACT) s 5, sch 1 pts 1.2, 1.4 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 R v Bourne [2018] ACTSC 35 R v Bourne [2014] ACTSC 401 |
Parties: | The Queen (Crown) Jirawat Marrotnok McCallum (Offender) |
Representation: | Counsel A Williamson / J Hiscox (Crown) S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) N/A (Offender) | |
File Number: | SCC 55 of 2019 SCC 340 of 2019 |
Murrell CJ
Introduction
The offender is to be sentenced for the following offences that were committed on 14 August 2018:
(a)Trafficking in a controlled drug (cocaine), contrary to s 603(7) of the CriminalCode 2002 (ACT) (Criminal Code). The trafficable quantity for cocaine is six grams. The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both. For trafficking in a commercial quantity (3 kilograms), the penalty is 25 years’ imprisonment.
(b)Trafficking in cannabis, contrary to s 603(8) of the Criminal Code. The trafficable quantity of cannabis is 300 grams. The maximum penalty for this offence is three years’ imprisonment, a $48,000 fine, or both. For trafficking in a commercial quantity of cannabis (30 kilograms), the maximum penalty is 10 years’ imprisonment.
(c)Unauthorised possession of a prohibited weapon (an extendable baton, a knuckle duster, and a taser), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000, or both.
In addition to the principal offences, the offence of money laundering was transferred from the Magistrates Court for sentence. Between 1 July 2016 and 2 July 2019, the offender dealt with money and property, the proceeds of crime, knowing that the money and property was derived or realised directly or indirectly from some form of unlawful activity. This offence is contrary to s 114B of the Crimes Act 1900 (ACT) (Crimes Act) and the maximum penalty is ten years’ imprisonment, a $160,000 fine, or both.
In relation to the drug matters, I have referred to the commercial quantities and the maximum penalties applicable to the commercial quantities for the purpose of enabling the subject offences to be considered in context.
In relation to the first offence, I take into account the additional offence of possession of property suspected of being the proceeds of crime (the sum of $6,540), contrary to s 114C of the Crimes Act. The maximum penalty for this offence is two years’ imprisonment, a fine of $32,000, or both.
Following discussions between the parties and after the brief of evidence for the principal offences had been served, the offender pleaded guilty on the eighth mention in the Magistrates Court. Nevertheless, it is appropriate to allow a significant discount for the utilitarian value of the pleas. As the pleas were not entered until after the brief of evidence had been served and the Crown case was strong, the discount for the pleas of guilty will be about 20 per cent.
The offender was on bail for a period of approximately 11 months. While on bail, he was subject to strict bail conditions including frequent urinalysis, an overnight curfew, and thrice weekly reporting to police. Apart from one occasion when he breached the curfew, he complied with the bail conditions.
After he was arrested for the principal matters, he spent four days in custody and the sentences that I impose will take that period into account.
The offender was charged with the transfer offence on 4 July 2019 and had been remanded in custody from that date until he was granted bail on 3 December 2019 by Walker AJ to enable assessment for participation in the Drug and Alcohol Sentencing List (DASL).
On 10 December 2019, the offender pleaded guilty to the transfer offence at the earliest reasonable opportunity. I will discount the sentence that I would otherwise have imposed upon him by 25 per cent.
The offender has spent a total of 157 days in custody in relation to these offences.
Facts
On 14 August 2018, police executed search warrants relating to the offender and his premises. When they arrived at the premises, they observed the offender walking away from a silver Toyota vehicle.
The police approached the offender, searched him and located about 27.883 grams of cocaine of 27.1 per cent purity in a plastic bag.
The offender consented to a search of the silver Toyota vehicle.
During the search of the offender, his premises and his car, many items relating to drug dealing were seized, including:
(a)13 bags or containers of cocaine mixed with other substances such as inositol and levamisole (known cutting agents for cocaine);
(b)eight clip seal bags of green vegetable matter (cannabis);
(c)$6,540, mostly in $100 notes;
(d)four sets of electronic scales with white powder residue on them (a mixture of cocaine and cutting agents);
(e)a pair of scissors, a knife and a spoon with white powder residue on them (including cocaine); and
(f)many clip seal bags.
The total amount of substances seized containing cocaine was 405.854 grams. The total amount of cannabis seized was 1,871 grams.
Police also seized an extendable baton and knuckle-duster from the glovebox of the offender's car and a taser (improvised electrical discharge device) in a kitchen drawer. These items are prohibited weapons under sch 1 pts 1.2 and 1.4 of the Prohibited Weapons Act.
The offender's fingerprints were identified on the Toyota car and on a freezer bag containing cocaine that was in the boot of the vehicle.
According to the Australian Criminal Intelligence Commission, at street level cocaine sells for at least $200 per gram. Assessed on that basis, the value of the cocaine seized was at least $81,168.
According to the Australian Criminal Intelligence Commission, cannabis has a street value of at least $20 per gram. Therefore, the value of the cannabis seized was at least $37,420.
The purity of the cocaine that was seized during the search ranged widely, from 1.2 per cent to 43.7 per cent. The purity of 43.7 per cent attached to a substantial quantity of drugs seized, 237.927 grams, which was located within a large plastic bag taken from the boot of the offender's vehicle.
Transfer offence
As a consequence of the search warrant that was executed on 14 August 2018, police suspected that the offender had been involved in money laundering offences and commenced a financial investigation.
It came to light that, between 1 July 2016 and 30 June 2017, the offender had received substantial cash deposits into a savings account.
By way of a bank cheque, on 7 March 2018, the offender paid $30,000 to an acquaintance for the stated purpose of allowing her to acquire an interest in a tattoo business, the Lakeside Tattoo Parlour at Belconnen. The offender conceded that the sum of $30,000 was the proceeds of crime.
The tattoo parlour has since been restrained by an order made under the Confiscation of Criminal Assets Act2003 (ACT).
Objective seriousness
Possession of prohibited weapons
In assessing the objective seriousness of such an offence, relevant factors include the nature of the prohibited weapon and the circumstances in which it was possessed. These factors may inform the danger or potential danger to the public associated with the particular offence.
In this case, the offender was a drug dealer and the items were located in his vehicle (as were a number of items associated with drug dealing). The possession of the weapons by the offender, who was engaged in drug dealing, posed a serious risk to the public and added to the objective seriousness of the offence.
As to the nature of the prohibited weapons in question—a baton, knuckle-duster, and taser—they were of significant seriousness, but not at the upper end of the range in terms of the danger that they inherently posed.
Taking into account the location and nature of the prohibited weapons and the surrounding circumstances, this was an offence of moderate objective seriousness.
Trafficking in cocaine and cannabis
In relation to the drug trafficking offences, in Bui v The Queen [2015] ACTCA 5 at [41] (Bui) the Court stated the principles that are relevant to the sentencing of drug traffickers.
The role of the offender is a key consideration. It is important to consider where a particular offender sits within the hierarchy of drug distribution.
In this case, although the evidence shows that the offender has been a member of an outlaw motorcycle gang, it was not suggested by the Crown that these offences were related to that membership. The offender maintained that he acted as an independent operator. He had a substance abuse problem and, initially, became involved because of drug debts.
It is hard to say where he sat within the hierarchy of drug distribution but there is nothing to suggest that he was located high in the hierarchy and had control of the operations of numerous other persons. Rather, the information suggests that he was towards the lower end of a drug distribution chain, although perhaps not at the very bottom.
In any event, I am unable to form a concluded view beyond reasonable doubt that he was anything more than at the bottom or close to the bottom level of the drug distribution chain.
The amount of drugs in question is significant when assessing objective seriousness. In relation to both trafficking in cocaine and trafficking in cannabis, the amounts in question significantly exceeded the trafficable amount for the drug.
In relation to the cocaine offence, the quantity was 67 times the trafficable quantity of 6 grams and can be compared with the commercial quantity of 3 kilograms; by reference to that quantity, it was a not insignificant amount. The value of the cocaine was very significant: it had a minimum value of approximately $81,000. The amount of cocaine was large. A relatively small percentage of that cocaine would have been required to service the offender's own drug habit.
In relation to the cannabis offence, the amount was six times the trafficable quantity and very much less than the commercial quantity. However, the financial value of the cannabis was quite high: at least $37,420.
It is clear that, while the offender became involved in drug dealing for the purpose of financing his own drug habit, by the time that he was arrested the business had grown to a substantial commercial operation, such that the offender had $6,540 in his possession at the time of his arrest.
There is other evidence showing a significant commercial operation, including the presence of electronic scales containing cocaine residue, cutting implements and cutting substances, and many clip seal bags.
I note that the offences relate only to one day (being the day of the search), albeit that they must be considered in the context of an operation that was by no means confined to that day.
Under s 602 of the Criminal Code, trafficking can be committed in a variety of ways:
602Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a) sells the drug; or
(b)prepares the drug for supply—
(i)with the intention of selling any of it; or
(ii)believing that someone else intends to sell any of it; or
(c) transports the drug—
…
(d)guards or conceals the drug with the intention of—
(i)selling any of it; or
(ii)helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.
In this case, the trafficking comprised the possession of drugs with the intention of selling most of them. That is a relatively serious form of trafficking compared, for example, to trafficking comprised of guarding or concealing drugs with the intention of helping someone else to sell them and doing so only briefly.
I am mindful that, in relation to the most serious offence (trafficking in cocaine), I am to take into account the additional offence of being in possession of property suspected of being the proceeds of crime, i.e. the substantial sum of $6,540.
Transfer offence – money laundering
The offence was of moderate objective seriousness, having regard to the sum involved and the surrounding circumstances. The amount of $30,000 was substantial.
Subjective circumstances
The offender was 31 years old at the time of the offences.
The offences were the first offences committed as an adult.
The offender was born in Thailand. The important first two years of his life were spent in an orphanage where conditions were primitive and he received little psychological or emotional stimulation. A family friend who is a psychologist opined that the early emotional and physical deprivation suffered in the orphanage has probably had a lasting impact on the offender, informing his strong need for acceptance and status.
After he was adopted from the orphanage at two years of age, the offender moved to Australia with his adoptive parents. His parents separated when he was 11 years old and he has had minimal contact with his father since the separation, although I note that his father was present in Court to support him. Following the separation, he resided with his mother until the age of 18. They maintain a good relationship and she has continued to support him.
As a child, the offender experienced racial discrimination and associated bullying at school, which left him feeling excluded from mainstream society. In addition, he suffered from learning difficulties which further impacted upon his confidence. With the departure of his father when the offender was 11 years old, the offender experienced significant anger and sentiments of abandonment. When he entered high school, he continued to be bullied. These matters are important to an understanding of how the offender was attracted to outlaw motorcycle gangs.
The history of the offender's involvement with outlaw motorcycle gangs is a little unclear. It would appear that he has been a member of the Rebels motorcycle gang, belonging to that organisation for a period (which the offender described as “short”) about four or five years ago. More recently, he joined the Comancheros outlaw motorcycle gang, where he became a patched member and “Road Captain” of the ACT chapter.
The offender said that he has now left the Comancheros. He accepted that the Court might well impose a non-association order preventing him from associating with persons in or connected to that, or indeed other, motorcycle gang. One must be a little sceptical because the offender said that he resigned his office around August 2019, when these proceedings were imminent. Nevertheless, at face value, it would appear that he has resigned.
Currently, the offender is in a de facto relationship with a partner of two and a half years. They have very recently had a child together. The offender's partner is employed but has taken maternity leave following the birth of their child. According to the offender, she had some awareness of his criminal activity but was not aware of the extent of his activities. She has expressed “zero tolerance” for him returning to an outlaw motorcycle gang or, indeed, becoming involved in any criminal activity.
It is clear from the references provided to the Court that the offender is held in high regard by many people. The offender's partner and others described the offender as sensitive, quiet, caring, loyal and trustworthy, and a person with considerable self-discipline. The offender enjoys a close relationship with his sister and her partner. His sister described the offender as kind, generous, and hard working.
The offender completed Year 10 in the ACT and completed his Year 12 Certificate at the Canberra Institute of Technology. He has completed a qualification in physical fitness. He undertook a carpentry apprenticeship and, as an adult, has maintained good employment in that field. In 2015, the offender and a business partner started their own construction business and the offender worked hard to make that business a success. However, in the future, he wishes to work as an employee so that he can focus on his family.
The offender began to drink alcohol at the age of 12. By the time that he was 18 years old, he was binge drinking. He says that in the last 12 months (while on bail and, more recently, in custody), he has consumed very little alcohol.
Between 13 and 20 years of age, the offender used cannabis (including daily use between 13 and 16 years of age). Around the age of 18, he began to consume other drugs. At 22, he began to use cocaine. By 28 years of age, he was consuming an average of 1 to 3 grams of cocaine daily. However, while on bail, he was required to undergo urinalysis testing. He underwent 13 tests, all of which were clean.
His drug abuse problem has been assessed as substantial. The author of the DASL suitability assessment report noted that it is likely that the offender was experiencing a severe substance use disorder (dependence) at the time of his offending.
Since his arrest, the offender has attended several psychology sessions to address his drug use and mental health. He participated in an interview for the purpose of preparing a Forensic Mental Health assessment report for the DASL.
Reportedly, the offender has attempted suicide on several occasions. Currently, he is receiving medication for mental health problems and displays no symptoms of major mental illness. The offender's pursuit of physical fitness, particularly through his mixed martial arts and boxing, supports his psychological wellbeing.
The offender has accepted responsibility for the offences. He has identified contributing factors as heavy drug use and negative peer associations. The offender's partner has said that the offender has experienced regret and shame to the extent that he has been inconsolable at times. Certainly, when giving evidence, he did appear to be contrite.
The offender has been assessed as at medium to low risk of general reoffending. Factors that are likely to support his rehabilitation are the availability of stable accommodation, the support of positive relationships with his partner and family, and the availability of fulltime employment. Further, he is maintaining physical fitness, receiving mental health treatment, and avoiding illicit drugs. He is focused on being fit and healthy, working, and supporting his family, particularly his new baby.
In relation to the effect of incarceration on his family, while the offender's partner would undoubtedly benefit from the offender being in the community available to assist with the new baby, significant assistance is also available from her own family.
As at April and June 2019, the offender was a member of the Comancheros OMCG and held the position of “Road Captain” in the ACT chapter of the gang. If the offender continues to associate with the gang, his risk of reoffending will increase. The relevance of membership of an outlaw gang in the past or currently is that it shows bad character and demonstrates—at least at that time—a preparedness to operate outside the law. These factors feed into a determination of the prospects of rehabilitation. Continuing membership in a motorcycle gang would suggest that rehabilitation was unlikely: see R v Bourne [2014] ACTSC 401 and R v Bourne [2018] ACTSC 35.
The offender’s membership of a gang puts in issue the assessment made by Corrective Services that the offender is at medium to low risk of general reoffending and also contradicts the assessment of the offender's character contained in the referee letters. The offender says that his family and friends were not told that he was a member of an outlaw motorcycle gang. It is difficult to form any view as to whether they realised it, did not realise it, or how these considerations interacted.
Nevertheless, I am prepared to accept that the offender would like to rehabilitate and put any involvement with motorcycle gangs behind him. He has already taken very positive steps towards drug rehabilitation. He enjoys support that may assist him to rehabilitate.
Another factor that supports rehabilitation is the offender’s limited criminal history.
At 31 years of age, the offender has no relevant criminal history, reasonably good prospects for rehabilitation and the motivation to do so, and resources that will support rehabilitation.
Comparable cases
The parties referred the Court to a number of comparable—or not so comparable—cases.
The Crown submitted that, in relation to trafficking in drugs, the range of sentences revealed by these cases showed an “inconsistent and idiosyncratic approach” to sentencing for such matters. I make no comment.
In relation to the transferred offence, the Court was not referred to any comparable cases, and the material available in the sentencing database is of minimal assistance.
Sentencing considerations
In sentencing the offender, I am guided by the maximum available penalty for each matter, the objective seriousness of each offence, the offender's subjective circumstances and relevant sentencing purposes.
General deterrence is always an important sentencing purpose in the case of drug trafficking.
In this case, the objective seriousness of the offences—particularly the most serious matter of trafficking in cocaine, in relation to which I am to take into account the other matter, itself objectively serious—and sentencing purposes such as general deterrence, denunciation and recognition of harm to the community mean that the sentence must be a significant sentence of imprisonment.
From the outset, I accepted the Crown's submission that the sentence must involve some component of fulltime imprisonment.
In relation to discounts applicable to the sentences that I might otherwise impose, I had regard to all relevant discounts applying under chapter 4 of the Sentencing Act and to the considerations that are prescribed to be considered in relation to those discounts.
The parties agreed that, as a whole, the offences called for a sentence of imprisonment, albeit that a sentence of imprisonment is a sentence of last resort. The question was how that sentence should be served.
The money laundering sentence needs to sit appropriately with the sentences imposed for the drug trafficking and possession of prohibited weapons matters. The principal offences occurred in August 2018 whereas the money laundering offence occurred earlier in 2018 and it is not directly related to the principal offences. However, it occurred within some months of the other matters and there is the obvious connection that all matters are directly or indirectly connected with drug dealing.
On 3 September 2019, I adjourned the proceedings to enable the offender to be assessed for an intensive correction order, without indicating that I would impose such an order if he was assessed as suitable for such an order. He was assessed as suitable for an intensive correction order.
On 7 November 2019, I adjourned the proceedings and ordered that the offender undergo a suitability assessment report for participation in the DASL.
He was assessed as suitable.
On 3 December 2019, Walker AJ released the offender on bail subject to strict conditions, including a curfew and non-association conditions. These conditions have been subject to bail review before her Honour and no problems have arisen.
Sentence
Regrettably, with regard to the imposition of drug and alcohol treatment orders, it would appear that s 12A of the Crimes (Sentencing) Act 2005 (ACT) precludes the backdating of any sentence so as to recognise prison time served prior to the imposition of the sentence; it requires that a sentence that is the subject of a drug and alcohol treatment order be fully suspended.
Consequently, while the sentences that I impose take account of the significant amount of prison time that has been served to date, their terms do not reflect it. This unfortunate anomaly in the legislation may give the impression that the Court is imposing sentences that are significantly more lenient than is the case, practically speaking.
Having regard to the restrictive terms of s 12A(2) which refer to the need to “fully suspend” a sentence of imprisonment when a drug and alcohol treatment order is made, I impose the following sentences.
(a)For trafficking in cannabis—imprisonment from 28 January 2020 to 19 February 2020.
(b)For possessing prohibited weapons—imprisonment from 28 January 2020 to 29 December 2020.
(c)For the offence of trafficking in cocaine—imprisonment from 30 June 2020 to 29 April 2022.
(d)For the transfer offence of money laundering—16 months’ imprisonment, reduced to 12 months’ imprisonment, from 30 October 2021 to 29 October 2022
The sentence periods take into account the period in custody from 30 June 2019, but as far as the actual sentences imposed are concerned, they run from today, 28 January 2020 to 29 October 2022 for the purposes of meeting the s 12A(2) requirements.
In relation to the making of a drug and alcohol treatment order, I note that the requirements of s 12A are satisfied. I am satisfied on the balance of probabilities of the matters referred to in s 12A(2)(a), and I consider the making of such an order to be appropriate, taking into account the matters referred to in s 12A(2)(b). I am informed that the offender has given informed consent to the order being made, in accordance with s 12A(2)(c). I note that the total period to which the order relates is less than four years.
The treatment and supervision part of the order will be a minimum of 12 months, unless the supervising judge or judges determine otherwise.
I require the offender to sign an undertaking to comply with the order and other obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the order is in force.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
19
3
6