R v Modra
[2005] SADC 169
•21 December 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MODRA
Reasons for Sentence of His Honour Judge Smith
21 December 2005
CRIMINAL LAW
PROCEDURE - SENTENCING
Importation offences against Customs Act 1901 (Cth) - drug offences against Controlled Substances Act 1984 (SA), namely producing ecstasy, possessing ecstasy for sale, producing MDA and unlawful possession - firearms offences in breach of Firearms Act 1977 (SA) and regulations made thereunder - early pleas of guilty - relevance of mental illness - discussion of hardship caused to dependents - whether manufacture of ecstasy was a one-off episode or an ongoing commercial enterprise - whether sentencing court can embark upon reclassification of hiearchy of dangerousness of drugs - nature of evidence to be led to supply foundation for reconsideration of drug classification - approach where sentences imposed for State and Commonwealth offences - sentence for State drug offences 6 years and 8 months with non-parole period of 4 years 8 months - sentences for Commonwealth firearms offences 4 months to be served cumulatively on State drug offences to commence on the expiration of the non-parole period - convictions without penalty for offences against State Firearms Act and regulations made thereunder.
Customs Act 1901 (Cth) s 233BAB(5); Controlled Substances Act 1984 s 32(1)(a) and (e); Summary Offences Act 1953 s 41(1); Firearms Act 1977 s 11(1), s 23(1); Firearms Regulations 1993 r 29(2), r 32(1) and r 53; Criminal Law (Sentencing) Act 1988 s 10, s 18A, referred to.
R v Pearce (1980) 91 LSJS 443; R v Cronn and Bladon (1983) 34 SASR 555; R v Mangelsdorf (1995) 66 SASR 60; R v Sladic (2005) 92 SASR 36; R v Becker (2005) 91 SASR 498; R v Reppucci (1994) 74 A Crim R 353; R v Calder (unreported, District Court, WA, Hammond CJ, 7 September 2005); Calder v R (unreported, Court of Criminal Appeal, WA, 11 September 1996); R v Bellissimo (1996) 84 A Crim R 465; R v Todd [1982] 2 NSWLR 517; R v Maddeford (2001) 120 A Crim R 497; R v Adami (1989) 51 SASR 229; R v Wirth (1976) 14 SASR 308; DPP v El Karhani (1990) 51 A Crim 4 123; R v Jackson (1998) 72 SASR 490; R v Capalbo [2005] SASC 47, considered.
R v MODRA
[2005] SADC 169
In this matter the defendant has pleaded guilty to 16 offences which are particularised on two Informations and a Complaint. The Complaint was called up from the Magistrates Court in Christies Beach. I set out hereunder the charges and the particulars.
Information 18th May 2004 (“Commonwealth Firearms Importation Offences”)
The defendant was charged with the following eight breaches of the Customs Act 1901 (Cth).
1.Between 10 August 2003 and 21 August 2003 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported a .45 pistol barrel and slide, to suit a 1911 model self loading pistol from the United States of America by ordering the said goods over the internet and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
2.Between 29 August 2003 and 9 September 2003 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported a .38 S&W Special calibre Colt Diamondback revolver barrel from the United States of America by ordering the said goods over the internet and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
3.Between 29 August 2003 and 7 November 2003 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported two receiver tubes suitable for a Sten gun from Canada by ordering the said goods over the internet and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
4.Between 19 August 2003 and 17 November 2003 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233 BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported 4 Sten Gun parts kits from the United States of America containing four breech blocks, four barrels, and four assembled trigger mechanisms each cut from a Sten gun, by ordering the said goods over the internet and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
5.Between 8 September 2003 and 2 January 2004 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233 BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported four magazines suitable for a Sten gun from the United States of America by ordering the said goods over the internet and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
6.Between 15 August 2003 and 25 September 2003 at Willunga in the State of South Australia or elsewhere did intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and being reckless as to the fact that the said goods were tier 2 goods; contrary to s 233 BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant imported a shortened .38 Smith & Wesson revolver barrel with a refitted front sight, by ordering the said goods over the internet from the United States of America and directing that they be sent by post to his address Box 752, Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
7. Withdrawn
8.Between 2 September 2003 and 4 September 2003 at Willunga in the State of South Australia or elsewhere attempted to intentionally import goods which were tier 2 goods, the importation of which was prohibited under the Customs Act 1901 (Cth) without approval pursuant to Regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained, and knowing that the said goods were tier 2 goods; contrary to s 233 BAB(5) of the Customs Act 1901 (Cth).
Particulars
The defendant ordered and paid for two 9mm Uzi submachine gun parts kit from the United States of America and directed that the kits be sent to his address Box 752 Willunga SA 5172, without having obtained written permission of the Attorney-General or producing such permission to a Collector of Customs at or before the importation.
In the Magistrates Court at Adelaide on the 8th October 2004 the defendant pleaded guilty to counts 1 to 6 and to count 8. Count 7 was dismissed for want of prosecution. The defendant was then committed to this Court for sentence.
Information 24th June 2004 (“Drug Offences”)
The defendant was charged with the following five offences:
1.Between the 1st day of August 2003 and the 25th day of September 2003 at WILLUNGA in the said State, knowingly produced 3,4-methylenedioxy methylamphetamine (ecstasy), a prohibited substance.
Section 32(1)(a) of the Controlled Substances Act 1984.
This is a Major Indictable Offence.
2.On the 25th day of September 2003 at WILLUNGA in the said State, knowingly had 3,4-methylenedioxy methylamphetamine (ecstasy), a prohibited substance, in his possession for the purpose of selling it to another person.
Section 32(1)(e) of the Controlled Substances Act 1984.
This is a Major Indictable Offence.
3. Dismissed for want of prosecution.
4.Between the 1st day of August 2003 and the 25th day of September 2003 at WILLUNGA in the said State, knowingly produced 3,4‑methylenedioxyamphetamine (MDA), a prohibited substance.
Section 32(1)(a) of the Controlled Substances Act 1984.
This is a Major Indictable Offence.
5.On the 25th day of September 2003 at WILLUNGA in the said State, had in his possession personal property, namely $2,480 cash and which either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.
Section 41(1) of the Summary Offences Act 1953.
This is a Summary Offence.
In the Adelaide Magistrates Court on the 25th June 2004 the defendant pleaded guilty to counts 1 and 2 and counts 4 and 5. Count 3 was dismissed for want of prosecution. So again the defendant was committed to this Court for sentence.
Complaint and Summons 25th August 2004 (“State Firearm Offences”)
The defendant was charged with the following six firearm offences:
1.On the 25th day of September 2003 at WILLUNGA in the said State, had in his possession firearms namely two hand guns whilst not holding a firearms licence authorizing possession of those firearms.
Section 11(1) of the Firearms Act 1977.
This is a summary offence.
2.Withdrawn.
3.On the 25th day of September 2003 at WILLUNGA in the said State, had in his possession un-registered firearms namely two hand guns.
Section 23 (1) of the Firearms Act 1977.
This is a summary offence.
4.Withdrawn.
5.On the 25th day of September 2003 at WILLUNGA in the said State, being a person (other than a dealer) who had possession of class H firearms failed to keep those firearms secured in accordance with Regulation 29(2).
Regulations 29(2) and 53 of the Firearms Regulations 1993.
This is a summary offence.
6.On the 25th day of September 2003 at WILLUNGA in the said State, failed to store ammunition in a locked container separately from firearms.
Regulations 32(1) and 53 of the Firearms Regulations 1993.
This is a summary offence.
In the Magistrates Court at Christies Beach on the 16th February 2005 the defendant pleaded guilty to counts 1, 3, 5 and 6. Counts 2 and 4 were withdrawn.
This offending was referred to this Court for sentencing.
The Penalties
The maximum penalty for each of the Commonwealth Firearm Importation offences is 10 years imprisonment or a fine of $275,000 or both.
The penalty for the drug offences, being counts 1, 2 and 4 on the Information of the 24th June 2004, is both a fine not exceeding $200,000 or imprisonment for 25 years or both.
The maximum penalty for the unlawful possession of $2,480 is $10,000 or imprisonment for 2 years.
In respect of the State Firearm offences, the maximum penalty for possession of firearms without a licence being prosecuted as a summary offence (count 1) is a fine of $10,000 or two years imprisonment or both. For the offence of being in possession of an unregistered Class H firearm (count 3), the penalty is a maximum of $10,000 or imprisonment for 2 years. And finally, in connection with the breaches of the firearms regulations being counts 5 and 6, the maximum penalty is a fine of $2,500.
Circumstances of Offending - Drug Offences
The defendant, his wife, their three children and the defendant’s mother lived on a country property at Lot 28 Victor Harbor Road, Willunga. There were two houses on the property and a large shed. The defendant and his family lived in one house and the defendant’s mother lived in the other.
At about 8.30 am on the 25th September 2003, Customs Officers and Firearms Branch Officers executed a search warrant at the property. The focus of their attention was the illegal importation of firearms parts. In the course of the search they discovered illicit drugs and so officers from the Drug and Organised Crime Branch and South-Coast CIB were called to the scene.
House
Upon searching the main bedroom of the defendant’s house police discovered in a satchel four jars containing a total of 654 grams of white powder which in turn contained a total of 479.05 grams of ecstasy. (There is in the above figures a trivial departure from the agreed facts as to both the total weight of powder and the total weight of ecstasy within the powder. I indicate that I have relied upon what is in the declarations from the forensic scientist, Dr Cox, rather than the statement of agreed facts.) Two of the jars contained a high concentration or purity of ecstasy which suggested that cutting had not yet occurred whilst the purity level in the two other jars indicated that a cutting agent had already been added.
Four plastic bags containing ecstasy tablets were also found in the satchel. They were marked with a Mitsubishi insignia. The agreed facts suggest that the bags contained 544 tablets, yet the Forensic Science Centre materials, in particular the declarations of Dr Matthew Cox, indicate that 539 tablets were sent to the Centre. I will proceed on the basis of there being 539 tablets.
The total quantity of ecstasy in the tablets was 52.04 grams.
Also found in the defendant’s satchel was:
·a loaded .38 calibre revolver with an obliterated serial number;
·a replica self loading pistol;
·a tobacco tin of cannabis;
·numerous small resealable plastic bags;
·a metal tablet stamp with a Ying Yang symbol which bore traces of MDMA (ecstasy); and
·$1750 in notes some of which when tested reacted positively to the presence of ecstasy.
In the defendant’s wallet which was also in the satchel was $730 in cash.
In the home police also found a metal punch and die containing the Mitsubishi insignia. Both bore traces of ecstasy. The defendant’s computers revealed research into illicit tablets and their insignias and indicated that he had designed the insignia.
A .22 calibre revolver was found in the study of the defendant’s home and a replica hand gun was found in the glove box of his car.
Shed
Police discovered a laboratory in the northern end of the shed on the property which was being used to manufacture ecstasy. Surveillance cameras which were trained on the driveway into the property were linked to a monitor in the shed. The defendant does not dispute that he was making ecstasy in the shed and so there is no need to particularise the evidence indicating that. Suffice to say that, apart from laboratory equipment and constituent chemicals, police found computer discs and data on hard drives which disclosed that the defendant had researched the manufacture of illicit drugs and in particular ecstasy.
Police found in the shed 400.2 grams of ecstasy made up of:
·382.4 grams in a large glass bottle dissolved in Toluene (VRW 60); and
·17.8 grams in a single neck round bottom flask (VRW 232).
There were other small amounts of ecstasy found on equipment which were the remnants of the manufacturing process which was entrain at the time of the raid.
Police also found in the shed 4.28 grams of methylenedioxy-methamphetamine (MDA) made up of:
·1.86 grams in powder in a glass jar (VRW 33); and
·.42 grams in powder in a glass jar (VRW 34).
Summary
In summary, on the defendant’s property police found:
·52.04 grams of ecstasy in the form of 539 tablets in the satchel;
·479.05 grams of ecstasy in powder form in four jars in the satchel;
·400.2 grams of ecstasy in various places in the laboratory in the shed; and
·4.28 grams of MDA in two jars in the laboratory in the shed.
On the basis that the ecstasy powder found in the jars and in the laboratory was to be made into tablets with the same purity proportions as that found in the 539 tablets then the result would be a further 8,784 tablets – a grand potential total of more than 9,000 tablets.
Circumstances of Offending – Commonwealth Firearms Importation Offences
The defendant ordered various gun parts the subject of the seven Commonwealth Firearms Importation offences, from the Internet site “eBay” which is a listing site for the buying and selling of goods.
On about the 10th August 2003 the defendant had successfully bid for the barrel and slide of a 0.45 calibre automatic pistol. Australian Customs Officers intercepted the parcel containing these items on the 21st August 2003. The accompanying declarations described the goods in the parcel as “merchandise” and “part-metal-used”. (Count 1)
On the 19th September 2003 Australian Customs Service Officers intercepted an airmail parcel addressed to the defendant from Honolulu containing parts for a 0.38 calibre diamond back revolver minus the frame, which was described as “merchandise” and “parts”. An email from the defendant to the sender dated the 29th August 2003 plainly invited the sender to misdescribe the firearms parts as “machine parts” to avoid attracting the attention of Australian Customs. (Count 2)
On the 7th November 2003 Customs Officers intercepted an airmail parcel addressed to the defendant from Ontario, Canada, containing gun receiver tubes for two automatic machine guns (Sten guns). The tubes were described as “two steel tubes”. (Count 3)
On the 17th November 2003 Customs Officers attended at the Willunga Post Office and there examined a parcel addressed to the defendant from Oregan, containing four Sten gun parts kits, which were described by the sender as “machine parts”. An email from the defendant to the sender concerning the shipment warned the sender “please remember machine parts”. (Count 4)
On the 2nd January 2004, at Sydney, Customs Officers inspected a parcel addressed to the defendant’s wife from California, which contained four Sten gun magazines which were described as “sports goods”. (Count 5)
The gun parts the subject of Counts 3, 4 and 5 would have enabled the assembly of two complete Sten guns with some minimal machining.
On the 25th September 2003, at the defendant’s home, Customs Officers seized a 0.38 Smith and Wesson barrel which had been purchased on the Internet from the US between the 15th August 2003 and the 25th September 2003. (Count 6)
Finally, the defendant ordered and paid for two 9mm Uzi sub machine gun parts kits from the United States. Computer records show that the defendant paid a total of US $636.90 for these parts. However, they have not been detected entering Australia by Customs Officers. (Count 8)
The defendant was not the holder of a firearms licence.
The defendant spent a total of US $1,007.64 on the orders and the “dealer value” of the imports was AUD $27,959.02.
Circumstances of Offending - State Firearms Offences
The circumstances of the four summary offences against the Firearms Act 1977 (SA) are sufficiently spelled out in the particulars set out above.
Circumstances of Offender
In connection with the defendant’s personal antecedents I have taken into account the following reports, some of which focus not only on the defendant himself, but also on his wife Tanya, his son James and his mother:
·Dr Gary Childs (consulting psychologist) dated 13.03.04;
·Dr Susan O’Brien (Flinders University Health Service) dated 5.11.03;
·Dr Craig Raeside (Forensic psychiatrist) dated 28.07.04;
·Noel Biggins (psychologist) dated 20.08.04;
·Dr John Callary (child psychiatrist) dated 19.08.04;
·Mr Colin Field (psychologist) dated 17.11.04;
·Mr Badrulhishan Muda (Mt Compass surgery GP) dated 23.07.04; and
·Dr Justine Ardill (cardiologist) dated 21.07.04.
The defendant was born on the 11th July 1966 and so is now 39 years old. He is in a long-term de facto relationship of some 15 years with Tanya Aries. There are three children of the relationship, namely James 17, Alex 11 and Madison 9. As previously indicated, they, together with the defendant’s mother, Mary Schwerdt, live on the Willunga property.
The reports describe a dysfunctional childhood. The defendant’s father left the family early in the defendant’s childhood. This had an adverse effect on the defendant. His schooling was troubled. He left home at the age of 14, but returned eventually to live with his mother. He reached Year 10 at school. There followed spasmodic employment including working on a prawn boat as a plumber’s assistant and as a bouncer at a hotel. In about 1994, having attained mature age entry to university, he completed an Honours Degree in Biotechnology. He has started other university courses, including Computer Science, Law and Medicine. Indeed, the defendant has passed the first year of Medicine and was embarking upon the second year.
The defendant has had a history of physical and mental health difficulties, the most significant of which is that he suffers from Asperger’s Syndrome. Defence counsel has placed before me considerable material about this disorder. Suffice it to say that it is somewhat akin to Autism and is marked by inept, inappropriate and clumsy social interaction and a failure to adequately comprehend the rules relating to social behaviour. Persons who suffer with this syndrome also appear to have little or no comprehension of how their behaviour affects others.
I note also that Dr Raeside has diagnosed the defendant as suffering from a long standing depression secondary to the Asperger’s Syndrome and recently a Major Depressive Disorder, the onset of which he places at “leading up to the time of the offending”.
The defendant has a history of chronic marijuana use and in recent years has been a heavy user of amphetamines, including ecstasy.
It is against this background that the defendant explains but does not seek to excuse his offending. He contended that his suppliers of cannabis and amphetamine funded the production of the ecstasy. They supplied him with $5000 and the handgun. He has declined to name the group who funded this production out of fear for not only his own life but for those of his family. As to the firearms offending, the defendant has had a long-term obsession with having, as opposed necessarily to using, firearms. This sort of obsessional interest is consistent with Asperger’s Syndrome.
Through his counsel the defendant submitted that the manufacture of the ecstasy was not intended as an ongoing commercial enterprise, but was a one-off illicit escapade intended to raise sufficient money to pay off the family’s debts after which he intended to commit suicide. In particular, he had in mind producing 10,000 tablets from which he would recoup $13.00 per tablet and thereby able to pay off his mortgage. This explanation is not wholly accepted by the prosecution.
The defendant’s oldest son James has also been diagnosed as having Asperger’s Syndrome. As a result, he is a troublesome teenager. Further, the defendant’s wife is suffering from a reactive depression and his mother is now being treated for chest pains which are symptoms of coronary artery disease. These pains have been caused or contributed to by the tension constituted by this matter.
Sentencing Considerations
Drug Classification
One of the sentencing issues, which in this case was the subject of voluminous evidence and specific considered submissions, was whether, for the purposes of sentencing, ecstasy should continue to be regarded somewhat benignly as a “middle of the road” drug or prohibited substance (see R v Pearce[1]; R v Cronn and Bladon[2]; R v Mangelsdorf[3]).
[1] (1980) 91 LSJS 443 at 444 King CJ
[2] (1983) 34 SASR 555 King CJ at 556
[3] (1995) 66 SASR 60 per Doyle CJ at 68
I note that the Court of Criminal Appeal in this State has indicated that a review of this classification of drugs including cannabis ought to be undertaken bearing in mind the growing body of evidence concerning the adverse effects of these substances (see R v Sladic[4]; R v Becker[5]).
[4] (2005) 92 SASR 36 at 27, 28
[5] (2005) 91 SASR 498
The submission of counsel for the Director, Mr Hinton, was that this Court ought to review the classification and further he submitted that:
·sentencing drug offenders by reference to a range or hierarchy of seriousness of the drug concerned is an impermissible fetter on the sentencing discretion and therefore should not be adopted;
·in any event the classification is of no real assistance to the Court given the absence of any workable criteria as to determining relative seriousness; and
·alternatively ecstasy should not be regarded as a middle of the range drug.
Counsel for the defendant, Mr Ey, contended that the classification should remain the same and that it was for the Court of Criminal Appeal to embark upon any review.
In my view, it is appropriate for a sentencing court, such as this Court, as opposed to the Court of Criminal Appeal, to embark upon the exercise of reconsidering the classification of the illicit drugs of dependence and the prohibited substances proscribed in the Controlled Substances Act 1984. It is a matter for evidence and therefore more appropriately a matter for resolution in a court of first instance (see R v Reppucci[6]; R v Calder[7]; Calder v R[8]; R v Bellissimo[9]).
[6] (1994) 74 A Crim R 353
[7] unreported, District Court, WA, Hammond CJ, 7 September 1995
[8] unreported, Court of Criminal Appeal, WA, 11 September 1996
[9] (1996) 84 A Crim R 465 per Rowland J
So I upheld the Crown submission that any reclassification can be determined by this Court.
However, I took the view at the end of the evidence that I was not in a position to reconsider the classification because, as will be seen, the expert evidence adduced dealt only with ecstasy.
I turn then to the evidence, because it remains relevant to the sentencing in this case.
The prosecution tendered the following evidence:
·report of Associate Professor Robert Ali – Director, Clinical Policy and Research – Drug and Alcohol Services entitled “The Health Effects of MDMA and MDA” dated 12/09/05;
·2005 World Drug Report by United Nations Office on Drugs and Crime;
·2004 National Drug Strategy Household Survey by Australian Institute of Health and Welfare, Canberra;
·Statistics on Drug Use in Australia 2004 dated July 2005 published by Australian Institute of Health and Welfare, Canberra;
·publication by Office of Crime Statistics and Research as to drug offences, dated 2003;
·Illicit Drug Data Report 2003 – 2004 by Australian Crime Commission.
Counsel for the Director also contended, correctly in my view, that I could take into account trends and information obvious to the Court in dealing with drug offences over the years.
Counsel for the defendant tendered, by consent, a report dated 28.02.05 entitled MDMA Basics by Erowid.
In arriving at the following findings, I have had regard to, in particular, the report of Professor Ali together with the document submitted by the defence entitled MDMA Basics by Erowid. I will use the word ecstasy in preference to MDMA. I must say that Professor Ali’s report seemed, in comparison to the document proffered by the defendant’s counsel, to be more objectively scientific. The document MDMA Basics originated from the Internet and its author, Erowid, is a somewhat mysterious entity.
Findings as to dangerousness of Ecstasy
-Some History
Professor Ali indicated in the context of discussion of hyperthermia that although there was a substantial use of ecstasy in the 1970’s “the first reports of deaths involving MDMA use did not appear in scientific literary until around 1987”. He indicated that the harmful toxicity appeared to arise in the setting of “raves” or dance parties, where a combination of ecstasy, high ambient temperature, sustained physical activity and inadequate fluid replacement acted to impair temperature regulation. He said that in two-thirds of cases where a persons body temperature exceeded 41.5°C the person died.
-Pharmological Effects
Ecstasy acts in the brain to enhance or elevate the neurotransmitters Serotonin and Dopamine. Serotonin regulates aggression, mood, sexual activity, sleep, sensitivity to pain and is also important in regulating memory and temperature. Dopamine plays an important role in the control of movement, cognition, motivation and reward.
-Psychological Effects
The immediate positive psychological effect is a feeling of euphoria, disinhibition, increased energy and a feeling of closeness to others.
The less common immediate negative psychological effects are paranoia, anxiety and depression.
-Physical Effects
Common short term physical effects are pupil dilation, increased jaw tension, grinding of the teeth, loss of appetite, dry mouth, tachycardia, hot and cold flushes and sweaty palms.
Long term effects include insomnia, depression, headaches and muscle stiffness.
-Pharmocokinetics and Metabolism
Ecstasy is well absorbed and effects will be apparent 20 minutes or so from ingestion and will last for about four hours.
-Neurotoxicity
There is evidence that even moderate use of ecstasy causes brain damage. There are significant differences on this topic between Professor Ali and the author of the document MDMA Basics on the other. However, both agree that studies have shown that the use of ecstasy has caused changes to the brain. Professor Ali referred to three studies which suggested amongst other things alteration in brain morphology and in particular impairments in short term memory. He concluded as follows on this topic:
The mechanism of MDMA’s neurotoxicity is uncertain, and an area of active research. It would appear that brain damage is largely irreversible and does not depend on an extensive history of MDMA use. Hence, it is likely that the incidence of this irreversible neurotoxicity will be high in all users of MDMA but the long-term functional consequences of ecstasy use in humans remains uncertain. Indeed neurological and/or cognitive deficits may only become apparent as the population of ecstasy users ages and normal brain function naturally declines. The functional consequences that could be anticipated, due to serotonin nerve cell degeneration would be disorders of sleep, mood and appetite.
I accept Professor Ali’s view as to this topic. This evidence from both sides was documentary only.
-Health Consequences
Ecstasy use, particular in the setting of “raves” or dance parties, can artificially induce a body temperature above normal (ie hyperthermia). As previously indicated, if the temperature of the person reaches levels of 41.5°C death can result. Further, use of ecstasy can cause disturbances of salt and water balance in the body.
The signs and symptoms of this include confusion, reduced consciousness and seizures or convulsions. Professor Ali indicated that these symptoms will abate as sodium levels are normalised. However, he said that fatalities can occur which are apparently caused by cerebral oedema.
Use of ecstasy is also associated with the release of an anti-diuretic hormone. Combined with hyperthermia there can be a diminution of the formation of urine and consequential exacerbation of excessive fluid consumption.
Modest doses of ecstasy cause an increased heart rate and blood pressure and can cause cardiovascular and cerebrovascular complications such as haemorrhage cerebral ischaemia or blood vessel ruptures.
One study referred to by Professor Ali identified use of ecstasy during pregnancy as a possible cause of increased risk of birth defects, but he noted that the study was deficient in that it did not have sufficient statistical power to confirm any causal link.
Also it has been found that liver damage can occur after single or multiple doses of ecstasy. Professor Ali said that the majority of such causes resolve spontaneously and again he made the point that the mechanism of ecstasy related liver damage is uncertain and “... ecstasy use remains a minor contributor to the incidence of liver failure ...”.
Professor Ali also drew attention to a range of psychiatric sequelae arising from ecstasy use including depression, low mood, concentration, memory problems, panic disorders, “flash backs” and delusions. However, again he warned that such consequences usually pertain to sustained high doses and use of ecstasy in conjunction with other drugs such as cannabis. Further, he indicated that the risk is greater if there is a family history of psychiatric disorder.
Professor Ali summarised his views in the following terms:
The incidence of serious acute adverse events arising from ecstasy use is low. It is the unpredictability of those adverse events and the risk of mortality and substantial morbidity in young people that makes the health consequences of ecstasy significant.
Hyperthermia and hyponatraemia are the most significant, and potentially life-threatening, acute adverse effects associated with ecstasy use.
Other significant health consequences are also possible, but again are rare. But difficult and complicated implications of long-term neurocognitive deficits associated with ecstasy use are still to be fully understood. This burden of illness, however, is probably going to represent the most difficult challenge in the future.
Deficiencies in the evidence
As can be seen, apart from survey and statistical evidence about the usage and prevalence of the commonly used drugs of dependence and prohibited substances, the evidence was confined to ecstasy. There was no expert testimony of a comparative nature. That is, the Crown put nothing before me about recent research into the health effects of the usage of for instance, amphetamines, cannabis and the so-called ‘recreational drugs and designer drugs’. Neither was there any evidence comparing the health effects of the prohibited drugs with each other and with heroin at “the top” and cannabis at “the bottom”. Certainly I could draw upon the Court’s experience as to matters such as prevalence and the harmful effects of other illicit substances. For instance, it is clear the use and production of amphetamine and its derivatives has become prevalent and heroin offending is on the wain. Also, I am aware of the research into the harmful effects of the use of marijuana and its connection to schizophrenia. But to come to a decision to reclassify ecstasy, for instance, more expert evidence about the drugs in the hierarchy is necessary.
So, in the light of there being no “comparative” evidence before me, I declined to embark upon any reconsideration of the so-called classification of drugs. I called this matter back on on the 8th December 2005 and raised this difficulty with counsel. Counsel, Mr Hinton, agreed. Allowing more time to address this deficiency would have caused a further delay in sentencing. So having heard argument, I reluctantly declined to further adjourn the sentencing of this defendant.
Of course, as indicated, I take into account in assessing the gravity of this offending the expert evidence given in this case as to the harmful effects of ecstasy and this Court’s experience as to matters such as prevalence. Counsel, Mr Hinton, urged me to make further specific findings from the statistical evidence, but I decline to do so because such findings will have no purpose whatsoever bearing in mind that they would not bind any future court should the classification issue arise again.
General Sentencing Considerations
In respect of all these offences, the defendant is entitled to a full discount for his pleas of guilty and for his cooperation with the authorities.
Further, he has been in custody from the day of his arrest on the 25th September 2003 until the 7th November 2003 when he was granted home detention bail.
Through no fault of the defendant there has been a delay in sentencing in the order of eight months or so. In part, this can be attributed to difficulties experienced by the Director of Public Prosecutions in obtaining and adducing the expert evidence necessary to support a reconsideration of the drug classification. The resultant delay has become inordinate and so I propose to regard it as a matter of mitigation (see R v Todd[10]).
[10] [1982] 2 NSWLR 517 at 519 per Street CJ
Sentencing Considerations - Drug Offences
The drug offences are gravely serious. The quantity of ecstasy seized was 931.29 grams. That quantity could translate to in excess of 9,000 tablets. The material before me suggests that a tablet might sell for as low as $13 and as high as $50. So, the seizure in this case had a street value of as low as $117,000 to as high as $450,000.
The defendant says he was going to stop at 10,000 tablets because he would then have enough money to pay off his debts. He said he then intended to commit suicide. The prosecution contend that I should infer from a range of circumstances that this was part of an ongoing commercial production of ecstasy. I am unable to resolve this issue. I am not prepared to infer against the direct contention of the defendant without evidence that this production was an ongoing commercial operation. So I accept that the defendant would have stopped when he had made 10,000 tablets.
General deterrence is a primary sentencing consideration. Producing drugs of the amphetamine family has become prevalent. The evidence of, in particular, Professor Ali spells out the dangers of this substance. The community expects that the courts will impose such penalties as will deter the production of these miserable substances. I note in particular that the market for these tablets is the young and vulnerable. It is sold at discos, nightclubs and other entertainment venues. And though not pertinent to this case, a wide range of harmful adulterants are used in the tablets.
As indicated, the defendant suffers from Asperger’s Syndrome and as at the time of offending he also suffered from a Major Depressive Disorder. Dr Raeside’s view was that the defendant “... clearly knew the nature and quality of his actions, the wrongfulness of them and was able to control his conduct at the time of his offending” (see report 28 July 2004 at 12). Dr Raeside did however suggest that his long-standing poor mental health was “a significant influence”.
However, this offending involved a considerable feat of intellect and applied chemistry. In a pre-meditated way the defendant drew upon his knowledge and his enthusiasm for chemistry. Further, he had taken calculated steps to avoid detection. There was surveillance cameras in place and he had a loaded handgun nearby to protect his enterprise.
So while I accept that the Asperger’s Syndrome and the Major Depressive Disorder are to a degree mitigating matters, he knew and appreciated what he was doing and its wrongness (see R v Maddeford[11]).
[11] (2001) 120 A Crim R 497
As indicated, the defendant’s son by reason of his Asperger’s Syndrome is troublesome and, further, the defendant’s mother has heart problems. These people are dependent on the defendant for support. I am obliged to have regard to such circumstances, (see s10(1)(n)), I direct myself that to discount any sentence markedly for it there must be extreme or exceptional circumstances (see R v Adami[12]; R v Wirth[13]). I would accept that it will a considerable hardship for the defendant’s wife to be left alone to care for their teenage son. Some leniency due to this is called for.
[12] (1989) 51 SASR 229
[13] (1976) 14 SASR 308
The defendant’s antecedent report discloses nine previous court appearances, six of which concern drug offences, apparently involving cannabis. This offending has been penalised by fines and notably there have been no sentences of imprisonment, even suspended sentences. However, the defendant is not learning from his conflict with the law and has now graduated to serious offending.
Confiscation proceedings relating to the property at Willunga have resulted in the family making a payment of $17,500, which has enabled them to remain living there. This too is a matter I will take into account.
Sentencing Considerations – Firearms Importation offences
The matters to which I must have regard are set out in s16A of the Crimes Act which is similar to s10 of the Criminal Law (Sentencing) Act (SA). Although not specifically mentioned in s16A, general deterrence is also a consideration in appropriate cases (see DPP v El Karhani[14]). Further, one penalty may be imposed for multiple offending pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA) (see R v Jackson[15]).
[14] (1990) 51 A Crim R 123
[15] (1998) 72 SASR 490
Both general and personal deterrence are relevant considerations here.
I accept that the defendant had an obsession for collecting and possessing weapons as opposed to using them. However, he had illegally imported sufficient parts to make two complete Sten guns, which are a banned automatic machine gun. The email material in the papers indicates the defendant’s intention to assemble these guns. So too, he attempted to import parts for two prohibited Uzi submachine guns.
This offending was not a single aberrant act but there were seven separate importations effected over a period of a month. The defendant plainly knew that the parts were prohibited. For instance, as I have indicated in respect of counts 2 and 4, he invited the senders to describe the parts somewhat benignly to avoid the scrutiny of Custom officers. There was considerable debate as to whether the plaintiff went on importing the parts after having been warned by a Seizure Notice from the Customs authorities on the 29th August 2003. It was unnecessary to resolve this. Suffice it to say, he knew the importations were illegal.
Again, the defendant’s antecedent report shows State firearms offences, and, in particular, the defendant does not hold a firearms licence.
These offences are difficult to detect. The Customs authorities cannot open every parcel. It is plainly an important matter that the flow of illicit firearms and firearms parts into this country be strictly controlled. The increase in penalties applicable to this sort of offending which occurred in the year 2000 indicates Parliament’s intent that the courts impose deterrent penalties. As indicated, the maximum penalty is now, inter alia, 10 years imprisonment, whereas a fine was the only previously prescribed penalty. These are what are known as Tier 2 goods and their illicit importation must be viewed seriously.
Counsel for the Commonwealth Director of Public Prosecutions submitted that a custodial term of imprisonment should be imposed.
Sentencing Considerations – State Firearms offences
These are summary offences which are eclipsed in seriousness by the other two lots of offending
Sentences
I will deal firstly with the most serious of the three lots of offending, namely the drug offences.
Pursuant to s18A I will impose one penalty for all four offences, including even the unlawful possession. It was one episode of criminality.
Subject to making allowance for time in custody and for the long period of home detention the sentence of the Court is that the defendant be imprisoned for 7 years. If it were not for the pleas of guilty and the cooperation with the police together with the delay the sentence would have been 10 years. I fix a non-parole period of 5 years which again is subject to taking account of time in custody and the lengthy period of home detention.
As indicated, the defendant has been in custody for say 14 days and has been on home detention bail for in excess of 2 years. I propose to take account of the time in custody and the long period of home detention by deducting 3 months from both the tentative head sentence and the tentative non-parole period.
The sentence of the Court for the drug offending is:
·Head sentence 6 years 9 months
·Non-parole period 4 years 9 months
This sentence is to commence today.
I turn to the Firearms Importation offences.
Again, I will impose one penalty pursuant to s18A. The sentence of the Court is that for the seven offences the defendant is to be imprisoned for 4 months. If it were not for the defendant’s pleas of guilty and the delay, the sentence would have been 6 months. The sentence of imprisonment for these offences is to be served cumulatively upon the above penalty for the drug offences, and, in particular, will commence upon the expiration of the above non-parole period of 4 years 9 months. So the 4 month sentence will take effect forthwith upon the expiration of the non-parole period for the drug offending.
I turn to the State firearms offences. The defendant will be convicted of each of those offences, but without penalty.
Mode of Sentencing
As to the acceptability of this method of sentencing, namely by publishing reasons and briefly addressing the defendant, I refer to and rely upon the decision of the Court of Criminal Appeal in R v Capalbo[16]. The view of White J at p19 with whom Doyle CJ and Besanko J agreed was apparently not drawn to the attention of the Court in the later case of R v Becker[17]. This case dealing as it has done with the prosecution’s application for a reclassification of the drug hierarchy, expert evidence as to health effects of ecstasy, multiple counts and some difficult sentencing considerations could not, “sensibly” be managed wholly by oral remarks. Further, there were no victims to consider.
[16] [2005] SASC 47
[17] (supra)
ADDENDUM – 23 December 2005
In this matter I have made a mathematical error in the allowance I made for the time in custody and the long period of home detention. In particular, I allowed only 14 days for the period in custody between the 25th September 2003 and the 7th November 2003, effectively I have omitted the month of October from the calculation. Accordingly, I recall the sentence to the extent of correcting this error by adding a month to the allowance of three months for time in custody and home detention. Therefore, the sentence of the Court for the drug offending becomes as follows:
Head sentence 6year 8 months
Non-parole period 4years 8 months
0
6
1