R v PU
[2018] ACTSC 373
•29 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v PU |
Citation: | [2018] ACTSC 373 |
Hearing Date: | 22 August 2018 |
DecisionDate: | 29 August 2018 |
Before: | Burns J |
Decision: | See [37] – [44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two offences of trafficking in a controlled drug other than cannabis – consideration of subjective features – relatively minor criminal history – on conditional liberty at time of offending – consideration of Pre-Sentence Report – history of substance abuse – consideration of psychological assessment report – pleas of guilty entered in the Magistrates Court |
Legislation Cited: | Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) s 603(7) Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 36 |
Parties: | The Queen (Crown) PU (Offender) |
Representation: | Counsel T Hickey (Crown) P Woodhouse (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offender) | |
File Numbers: | SCC 56 of 2018; SCC 57 of 2018; SCC 163 of 2018 |
BURNS J:
1. PU, you appear before me for sentence with respect to two offences of trafficking in a controlled drug other than cannabis. The first such charge, using its Magistrates Court charge number CC2017/10748, concerns you trafficking in MDMA and MDA on 27 September 2017 contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code).
2. The second such charge, CC2018/5489, concerns you trafficking in MDA, MDMA and methylamphetamine between 4 January 2018 and 6 April 2018 contrary to s 603(7) of the Criminal Code.
3. The maximum penalty for each such offence is 10 years' imprisonment, a fine of $150,000, or both.
4. In addition, I am to sentence you with regard to three offences transferred to this Court from the Magistrates Court. The first such offence is a charge of possession of property suspected of being the proceeds of crime on 27 September 2017 (CC17/10749), contrary to s 114C of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of two years' imprisonment, a fine of $30,000, or both.
5. The second such offence is a charge of possessing a declared substance without authorisation on 27 September 2017 (CC17/12557), contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), which carries a maximum penalty of two years' imprisonment, a fine of $30,000, or both.
6. The final charge is one of possession of a drug of dependence on 27 September 2017, in this case cocaine (CC18/4195), contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT), which carries a maximum penalty of two years' imprisonment, a fine of $7,500, or both.
The facts
7. With regard to the offences which occurred on 27 September 2017, the Agreed Statement of Facts states that on that day police executed a search warrant at your home. Police forced entry into the premises and found you panting heavily while standing just outside the bathroom. Police officers heard the toilet cistern flush. Inside the toilet bowl officers found a plastic bag containing cocaine.
8. On top of the toilet cistern were five plastic bags containing variously coloured MDMA and MDA tablets and powders. During the search police also located four bundles of cash hidden in various locations in the house totalling $40,680. In your bedroom police found a box of 20 pill containers which contained diazepam tablets.
9. You were charged on 28 September 2017 in the Magistrates Court with the offences which occurred on 27 September 2017. You were released on bail that day. On 30 October 2017 you were charged with an unrelated offence and you were held in custody until you were again released on bail on 15 December 2017.
10. The second offence of trafficking in a controlled drug occurred between 4 January and 6 April 2018. You were initially charged with eight counts of trafficking either MDA, MDMA and/or methylamphetamine as a result of [redacted]. After negotiations with the Crown, you entered a plea of guilty to one rolled‑up count of trafficking MDMA, MDA and methylamphetamine during that period by way of a joint criminal enterprise with a co‑accused. Your co-accused made frequent trips to Sydney to obtain drugs, which he then provided to you and which you then on‑sold.
11. The total number of pills trafficked over the period of this charge was 6,298, with a total estimated street value of $157,450. You directly supplied 4,316 pills and your co‑accused supplied 1,982. The amount of pills trafficked by you and your co‑accused by weight is estimated to be in excess of 1.5 kg. The total amount of money used by the police in the conduct of this operation to buy the pills during the period of the offence totalled $42,950, of which $28,950 was paid directly to you and $14,000 was paid directly to your co‑offender.
Subjective features
12. You have a relatively minor criminal history, but it is relevant to observe that at the time you committed the offence of trafficking in a controlled drug between 4 January and 6 April 2018 you were subject to a Good Behaviour Order imposed in the Magistrates Court on 28 November 2017 for an offence of damaging property. At the time you committed that offence, that is, the offence of trafficking in a controlled drug between January and April 2018, you were also on bail for the offences which occurred on 27 September 2017.
13. A Pre‑Sentence Report was prepared for the sentence hearing. You are currently 26 years old and your previous engagement with Corrections has been described as satisfactory. During your current period on remand your behaviour has been described as satisfactory. You have engaged in employment and you have requested assessment for programs and education. There has been no recorded instance of institutional misconduct.
14. The report states that you had a mostly positive upbringing, although your relationship with your father was strained for the majority of your formative years. In February 2018, your father was diagnosed with cancer and since that time you have re‑established a supportive relationship with him. You continue to experience the support of your mother, who has visited you in the AMC.
15. You were in a prosocial and supportive relationship while in the community, but that relationship ended upon you being remanded in custody. You were residing with your father prior to being remanded in custody, but the premises in which you were residing have now been sold. You advised the author of the report that you could live at your grandmother's address, where your parents are also currently residing, when you are released into the community.
16. You completed your education to Year 10 level but left during Year 11. Your subsequent employment record has been sporadic, working casually as a security guard for a number of different contractors. You advised that you were working as a labourer for an interior construction company before being remanded in custody. You claimed that you can return to that employment upon your release.
17. You have a long history of substance abuse commencing at an early age. Most recently, you commenced using cocaine when you were 20 years old, and by the age of 25 years your use had increased to heavy daily consumption. You commenced using Valium around July 2017. You claimed that after having been charged with the current offences you have been abstinent from all illicit substances.
18. [Redacted].
19. The Pre‑Sentence Report notes that because of [redacted]. [Redacted]. You told the author of the report that you took responsibility for your actions, and the author was of the opinion that you did not attempt to minimise or justify your behaviour. You were assessed as being at a medium low risk of generalised re-offending.
20. A psychological assessment report dated 9 July 2018 from Dr Danielle Clout, a clinical psychologist, was tendered at your sentence hearing. Based upon the history provided to her, Dr Clout expressed the opinion that you were suffering from symptoms consistent with several mental disorders, including Attention-Deficient/Hyperactivity Disorder, Panic Disorder, Post‑Traumatic Stress Disorder and Stimulant Use Disorder.
21. You were diagnosed with Attention-Deficit/Hyperactivity Disorder as a child and prescribed medication. You reported experiencing panic attacks from approximately eight years of age. You stated that those panic attacks increased in frequency when you began abusing cocaine and you continued to experience panic attacks approximately two or three times a week.
22. You also told Dr Clout that [redacted]. You described ongoing difficulties which met the diagnostic criteria for Post‑Traumatic Stress Disorder. I note that you gave evidence of [redacted] in the proceedings before me on 22 August 2018.
23. You told Dr Clout that at the time of the offences on 27 September 2017 you were addicted to cocaine. She expressed the opinion that it was likely that your mental health, particularly your Post‑Traumatic Stress Disorder symptomology, contributed to your substance use, and your substance use in turn impacted on your impulsivity and behaviour. At the time of the second offence of trafficking in a controlled drug Dr Clout said that it was probable that [redacted] exacerbated your symptoms and the distress associated with your mental health conditions. Overall, she said it was likely that the conditions that you were experiencing had a significant role in your offending behaviour.
24. I take into account two testimonials that were tendered at your sentence hearing. I accept that each of the deponents to those testimonials have no involvement with [redacted], and I reject any suggestion that DE attempted to mislead the court as to the nature of her employment. I see no reason not to accept the contents of those testimonials.
25. I take into account the letter which was written by you which was tendered as Exhibit 3 at the sentence hearing. I note that you also gave evidence attesting to the matters of fact set out in that letter and you were subject to cross‑examination with respect to those issues. In that letter you express remorse for your actions and your commitment to choosing a better path in life in the future. [Redacted].
26. [Redacted].
27. [Redacted].
28. I am satisfied on the balance of probabilities that the evidence you gave was the truth and that you engaged in the second offence of trafficking in a controlled drug for the purpose of [redacted].
29. I am therefore not satisfied that you are to be sentenced on the basis that you engaged in that offence with a motive of generating a profit for your own use. This, of course, does not excuse your participation in this offence, but it does eliminate an alleged matter of aggravation.
30. I accept the evidence of Dr Clout. On that basis I accept that you suffer from a longstanding condition of attention deficit hyperactivity disorder and at the time of these offences you were also suffering from Post‑Traumatic Stress Disorder, Panic Disorder and Substance Abuse Disorder. The first three of these conditions operated so as to reduce your moral culpability, but not greatly so. I also accept her opinion that incarceration in your case comes with a risk of exacerbating your mental health difficulties.
31. You initially pleaded not guilty to the offences of 27 September 2017, but you ultimately pleaded guilty to those charges in the Magistrates Court on 28 February 2018, following which you were committed for sentence to this Court. Your pleas of guilty to these charges cannot be said to have been entered at the earliest opportunity, but they were nevertheless entered in the Magistrates Court. The case against you with respect to those charges was strong but not overwhelmingly so. I assess the appropriate reduction in sentence for your pleas of guilty with regard to those charges at approximately 20 per cent.
32. With regard to the second offence of trafficking in a controlled drug, I accept that your plea of guilty was a relatively early plea. You have had the benefit of negotiating a rolled-up charge which operates to reduce the effective maximum penalty with regard to what was otherwise a series of offences of supplying controlled drugs [redacted]. Nevertheless, the plea of guilty was entered in the Magistrates Court, and I will also allow a reduction in sentence of approximately 20 per cent with regard to that offence, notwithstanding the strong Crown case.
33. [Redacted].
34. I will reduce the otherwise appropriate sentences by approximately 10 per cent [redacted]. I will also reduce the otherwise appropriate sentences by approximately 20 per cent [redacted].
35. I accept the Crown's description of you as a mid-level dealer who, in the second trafficking offence, sold drugs in bulk to a person posing as a street level dealer. Clearly this was a very substantial illicit operation moving substantial amounts of drugs and likely to generate a significant financial return. Notwithstanding my finding that you were not involved in this offending for the purpose of personal profit this was still a very substantial commercial operation. I accept that your moral culpability with respect to all of these offences is to some slight extent ameliorated by your mental health conditions [redacted].
36. I also take into account that the second offence of trafficking in a controlled drug occurred over a number of months and, as I have said, involved very substantial amounts of drugs. I would assess the objective seriousness of the first offence of trafficking in a controlled drug in the low to mid‑range of such offences. I am satisfied that nothing less than immediate terms of imprisonment will be sufficient to meet the requirements of sentencing for these offences and, in particular, the requirement of general deterrence.
Sentence
37. I record convictions with respect to all charges.
38. My starting point with regard to the second charge of trafficking in a controlled drug is a sentence of three years and nine months' imprisonment. I will reduce that to three years and one month’s imprisonment to reflect your plea of guilty. I will further reduce that to two years and eight months' imprisonment [redacted]. I will then further reduce it to two years' imprisonment [redacted]. As at 22 August 2018 you had spent 151 days in custody, so that the starting date for that sentence should be 24 March 2018 and that sentence will expire on 23 March 2020.
39. My starting point with regard to the first charge of trafficking in a controlled drug is a sentence of two years' imprisonment. I will reduce this to 20 months to reflect your plea of guilty. I will reduce it further to 17 months [redacted]. I will then reduce it by a further four months to 13 months' imprisonment [redacted]. That sentence will commence on 24 October 2019 and expire on 23 November 2020.
40. My starting point with respect to the charge of possession of a declared substance is eight months' imprisonment. Reducing that sentence by 50 per cent to allow for your plea of guilty, [redacted], results in a sentence of four months' imprisonment. That sentence will commence on 24 October 2020 and expire on 23 February 2021.
41. My starting point with regard to the charge of possession of property suspected of being the proceeds of crime is 10 months' imprisonment. Reducing that sentence by 50 per cent to allow for your plea of guilty, [redacted] results in a sentence of five months' imprisonment. That sentence will commence on 24 December 2020 and expire on 23 May 2021.
42. Finally, with regard to the offence of possession of a drug of dependence, my starting point is four months' imprisonment. Reducing that sentence by 50 per cent to allow for your plea of guilty, [redacted] results in a sentence of two months' imprisonment. That sentence will commence on 24 October 2019 and expire on 23 December 2019.
43. The aggregate sentence which I have therefore imposed is three years and two months' imprisonment commencing on 24 March 2018 and expiring on 23 May 2021.
44. I set a non-parole period of one year and seven months commencing on 24 March 2018 and expiring on 23 October 2019.
45. Were it not for [redacted] I would have increased each of the individual sentences by 20 per cent and I would have structured the aggregate sentence in such a way as to increase it by 20 per cent.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 17 June 2019 |
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Amendments
29 August 2018 Replace “23 March 2021” with “23 May 2021” Paragraph: [43]
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