R v Pahl
[2022] ACTSC 113
•23 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pahl |
Citation: | [2022] ACTSC 113 |
Hearing Date: | 23 May 2022 |
DecisionDate: | 23 May 2022 |
Before: | Mossop J |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in a controlled drug other than cannabis – failing to store ammunition in approved locked container – failing to store firearm in approved locked receptacle – offender was a user/dealer – trafficking offence at the low end of objective seriousness – ammunition offences at the low end of objective seriousness – failing to store firearm below the mid-range of objective seriousness – strong potential for rehabilitation – limited criminal history – intensive correction order imposed – community service condition – fine |
Legislation Cited: | Criminal Code 2002 (ACT), s 603(7) Crimes (Sentencing) Act 2005 (ACT), ss 7, 10 Firearms Act 1996 (ACT), s 181(1) |
Parties: | The Queen ( Crown) Jason Pahl ( Offender) |
Representation: | Counsel B Morrisroe ( Crown) J Purnell ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender) | |
File Numbers: | SCC 47 of 2022 SCC 48 of 2022 |
MOSSOP J:
Introduction
The offender, Jason Pahl, has pleaded guilty to the following offences:
(a)One count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
(b)Two counts of failing to store ammunition in an approved locked container, contrary to s 181(1)(b) of the Firearms Act 1996 (ACT). The maximum penalty is one year’s imprisonment.
(c)Two counts of failing to store a firearm in an approved locked receptacle, contrary to s 181(1)(a) of the Firearms Act. The maximum penalty is one year’s imprisonment.
Facts
The facts were agreed and are in summary as follows.
On 19 November 2020, at approximately 5:30am, police attended the offender’s residence at an address in Ngunnawal in the Australian Capital Territory (ACT) to execute a number of search warrants on the premises, three vehicles and the offender. When the police arrived, they spoke with the offender’s partner who informed them that the offender had left for work approximately 10 minutes earlier. At 5:58am, the offender was stopped by police while driving one of the vehicles for which a warrant had been issued.
During the execution of the warrant at the Ngunnawal property, police located a gun safe which was properly secured against an interior wall of the garage. However, the safe was unlocked and open. In the unlocked gun safe, the police located and seized one category A firearm (a shotgun), one category B firearm (a .222 rifle) and ammunition including eight .222 shells and a box of such shells. Four of the loose .222 shells were located in the magazine of the rifle. The offender was authorised to possess and use the two firearms. However, he was not authorised to store ammunition in the same receptacle as any firearm, was not authorised to store ammunition outside of a locked container and was not authorised to store the firearms in an unlocked receptacle where they were found.
Police also seized a total of 352.279 g of cocaine and indicia of drug trafficking, including clear plastic bags and containers, sets of scales, spoons lined with white powder residue and $2320 cash in various denominations. Analysis conducted by the ACT Government Analytical Laboratory showed that approximately 350 g of the 352.279 g of cocaine identified from the items seized was between 45.9 and 59.1 percent purity.
The offender made several admissions during the execution of the search warrant, including that he was the only person who had access to the garage, that the bedroom in which some of the cocaine was located was his “humble domain” and that everything that was found had nothing to do with his partner or son, “it’s just me, not them”.
Forensic evidence linked the offender to the items seized. This included DNA obtained from the outside of the air-conditioning unit in which some of the cocaine was found and from a thumb print on a freezer bag.
Objective seriousness
The offender was a user/dealer. He sold for both financial gain and so as to support his habit. The quantity of cocaine was substantial, the trafficable quantity being 6 g and the commercial quantity being 3 kg. The offending was at the low end of objective seriousness for this offence.
The ammunition offences were at the low end of objective seriousness having regard to the small quantity of ammunition involved and the absence of any manifestation of the risks associated with improper storage of such ammunition. Four rounds of the .222 ammunition were in the magazine, which is more serious than in relation to the ammunition that was stored outside because of the risks associated with this location.
10. The failing to store the firearm in an approved locked receptacle is below the mid-range of objective seriousness for this offence. The firearms were in fact within the gun safe but that a gun safe was unlocked and open. There is no evidence that the risks associated with such unsafe storage of weapons manifested themselves.
Subjective circumstances
11. The offender’s subjective circumstances are outlined in a pre-sentence report dated 20 May 2022, two psychological assessment reports of Professor Boer and Dr Bollinger respectively, three character references, a letter from the offender, a letter from Directions Health and in oral evidence that the offender and his partner gave.
12. The offender was born in South Africa. His parents separated when he was 10 years old. His father moved to Australia at that time, while the offender remained in South Africa with his mother. The offender had a positive upbringing and did not experience illicit substance use or domestic violence in the home. He was the youngest of two brothers born to his parents’ union and he maintains a close relationship with both brothers. The offender moved to Australia when he was 12 years old. He maintains a close relationship with his mother, who he described as positive and supportive. He also maintains contact with his father.
13. The offender has two young children with his partner of seven years. His partner remains supportive, although the relationship in the past has been “off and on again” over time.
14. The offender purchased the family home in February 2022 after renting the property for a couple of years beforehand.
15. The offender completed primary school in South Africa. His secondary schooling in Australia was somewhat disrupted by changes in schools due to his father’s changes in jobs. The offender completed his Year 10 certificate before commencing employment across different trades. In 2020, the offender commenced work as a sole trader. In 2021, he started his own concreting business in which he currently employs a number of staff. He works full-time. He has a mortgage on his house and business loans relating to work equipment. His business is currently successful and financially rewarding.
16. Since being arrested for these offences, he has not interacted with his antisocial peers. It is very clear, having regard to the description of the nature of those persons in his father’s letter that antisocial associates were likely to have been a significant factor in his offending. The evidence is consistent with him no longer associating with those antisocial people and making an effort to engage with prosocial friends.
17. The offender has a problematic history of cocaine use, consuming the substance for the first time at 21 years old. At one point, he was consuming approximately $2000 worth of cocaine per week. He ceased using cocaine soon after the offending. He has engaged with counselling and indicated that he plans to obtain ongoing support by engaging with Directions Health Services for alcohol and drug interventions. It is not clear whether this will continue voluntarily after sentencing, but he expressed an intention to do so in order to keep himself on the right track.
18. The offender agreed with the police statement of facts and acknowledged the unlawfulness of his actions. He recognised that he may have become involved with the antisocial group because of instability in his adolescence and this influenced his use of illicit substances. He accepted that his problematic illicit substance use contributed to the trafficking charge because he could not support his drug dependency on his weekly wage. Since committing the offences, the offender has attended nine counselling sessions aimed at addressing his substance use, offending behaviour and the impact of his offences on his relationship and family. Professor Boer verified the offender’s engagement with counselling and commended the offender on his positive engagement, punctuality and motivation to live a prosocial lifestyle.
19. The author of the pre-sentence report assessed the offender as being at a low risk of general reoffending, with protective factors across all areas. The offender is assessed as being suitable for a good behaviour order with a low level of intervention. He is also assessed as suitable for an intensive correction order.
20. The character references came from his mother, father and a friend who is employed at the offender’s concreting business. These references all attest to the fact that the offender is taking deliberate steps to redirect himself away from the negative influences that led to his offending. The offender’s mother described the charges against the offender as being “both cruel and a blessing” because of the way they have caused the offender to reflect on the direction his life was heading in, remove negative influences and focus on building his business and providing for his family. The offender’s father expressed his disappointment upon hearing of the offending conduct but described that he has now seen his son transform his life. The offender’s friend and employee has known the offender for over 10 years and describes him as a good person who has never made trouble aside from some driving-related matters. The friend described the offender as a responsible business owner who is well‑respected by his employees, as well as an attentive father.
21. In a letter to the court, the offender accepts full responsibility for his offending and recognises the impact it has had on his family. The offender describes being “lost and misguided” at the time of his offences and sets out the steps he has taken to distance himself from bad influences and focus on his business and family.
22. In his oral evidence, he gave evidence about his drug use and sale of drugs, his family and his business circumstances. That evidence was very frank. He impressed me as a young man who regrets the direction he was going in and is doing the best he can to provide a secure and law-abiding future for himself and his family.
Criminal history
23. The offender’s criminal history is limited to three driving related matters in 2021 after the current offending and one matter in 2016.
Plea of guilty
24. The offender pleaded guilty to all five offences at the matter’s fourth mention in the Magistrates Court. There was initially a plea of not guilty and a brief was prepared. However, the plea was at an early stage and warrants a discount of between 20 and 25 percent.
Time in custody
25. The offender has not spent any time in custody in relation to the current offences.
Consideration
26. Offending of this type engages each of the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I accept that generally speaking, a period of full-time detention will be required for an offence of this nature. While recognising the objective seriousness of this offending and the need for general deterrence of persons involved in the sale and distribution of illicit drugs, the present case is one in which the potential for rehabilitation is a very significant consideration. Having regard to the offender’s limited criminal history apart from this offending and the evidence described most specifically in the letter of his father that he has chosen to step away from the unlawful associations that existed at the time of the offending, it is a case in which the interests of the community are best served by a sentence which recognises the strong potential for rehabilitation.
27. The nature of the offending is such that the threshold in s 10 of the Crimes (Sentencing) Act is clearly satisfied. The appropriate starting point for a sentence is two years imprisonment. That will be reduced to 19 months on account of the plea of guilty.
28. As to how the sentence should be served, in my view, having regard to the significant progress that the offender has made in rehabilitation and the very strong interest of the community that he does not return to his past antisocial associations, it is appropriate that the sentence be served by way of an intensive correction order. That will be combined with a component of community service and a fine in order to reflect the need for punishment and general and specific deterrence.
29. Notwithstanding the submissions on behalf of the Crown, in light of the fine and the community service requirements of the sentence I impose, I do not consider that a curfew should be imposed as a punitive component of the intensive correction order.
30. Each of the firearms charges may be dealt with by way of a fine.
Orders
31. The orders of the Court are:
1. On the charge of trafficking in a controlled drug other than cannabis (CC2021/9738) the offender is
(a)convicted;
(b)sentenced to imprisonment for a period of 19 months commencing on 23 May 2022 and ending 22 December 2023; and
(c)fined the sum of $20,000 which is to be paid within 12 months.
2. The sentence of imprisonment imposed pursuant to order 1 is to be served by intensive correction in the community subject to the core conditions and a condition that the offender perform 240 hours of community service.
3.On the charge of failing to store ammunition (CC2021/9734) the offender is convicted and fined $200 to be paid within 12 months.
4.On the charge of failing to store ammunition (CC2021/9735) the offender is convicted and fined $800 to be paid within 12 months.
5.On the charge of failing to store a firearm (CC2021/9736) the offender is fined $2000 to be paid within 12 months.
6.On the charge of failing to store a firearm (CC2021/9737) the offender is fined $2000 to be paid within 12 months.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 2 June 2022 |
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