R v Slater
[2016] ACTSC 198
•7 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Slater |
Citation: | [2016] ACTSC 198 |
Hearing Date: | 7 July 2016 |
DecisionDate: | 7 July 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 32 months’ imprisonment with a nonparole period of 20 months and two weeks and good behaviour orders. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in methylamphetamine – summary offences transferred – on conditional liberty – guilty plea CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence – breach of good behaviour order – trafficking in methylamphetamine – trafficking in cannabis |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) s 7 Magistrates Court Act 1900 (ACT) s 90B |
Parties: | The Queen (Crown) Daniel Austin Slater (Offender) |
Representation: | Counsel Mr S Saikal (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Numbers: | SCC 250 of 2015; SCC 251 of 2015; SCC 142 of 2012 |
MURRELL CJ:
The offender pleaded guilty to the offence that, on 29 April 2015 at Canberra, he trafficked in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years' imprisonment and/or a fine of $150,000.
The amount of methylamphetamine was 10.457g. The trafficable quantity of methylamphetamine is six grams. The commercial quantity is three kilograms.
Four summary offences were transferred to the Supreme Court pursuant to s 90B of the Magistrates Court Act 1900 (ACT):
(a)possess prohibited substance, namely cannabis (maximum penalty two years' imprisonment and/or a $7,000 fine);
(b)possess knife in a public place (maximum penalty six months' imprisonment and/or a $1,500 fine); and
(c)two counts of unlawful possession of property reasonably suspected of being stolen or unlawfully obtained (maximum penalty six months' imprisonment and/or a $7,500 fine).
The offences place the offender in breach of a good behaviour order imposed by Higgins CJ on 10 February 2014 for very serious offences of trafficking in methylamphetamine and trafficking in cannabis. The quantity of methylamphetamine was 248g and the facts referred to a number of firearms and a large amount of cash. For the offence of trafficking in methylamphetamine, his Honour imposed a sentence of three years' imprisonment. For the offence of trafficking in cannabis, his Honour imposed a sentence of 14 months' imprisonment. The sentences were to be served concurrently and were backdated to 17 June 2013, although the offender was not actually in custody during the period from June 2013 to February 2014. From 10 February 2014, the sentences were suspended and the offender was released on a three-year good behaviour order (until 9 February 2017).
In relation to the drug trafficking matter before the Court, the offender pleaded guilty after he was committed to the Supreme Court, but before a trial date was set. The Crown case was strong. The sentences that would otherwise be imposed should be reduced by about 15% in recognition of the pleas of guilty.
The offender has been in custody since his arrest on 29 April 2015 and the sentences will date from then.
Facts
At about 6:00 pm on Wednesday, 29 April 2015 (about one year after the offender’s release on the suspended sentences), police approached a vehicle that was parked in Red Hill. The offender was in the driver's seat. A female exited the passenger door. Police spoke to the offender. They searched his vehicle. They found a small set of electronic scales in a parcel shelf in the driver's door. They found two plastic bags each containing 100 small clip-seal bags. Later, a trace amount of methylamphetamine was detected on the scales.
Police searched the offender. In his underwear, they located a small bag of cannabis and 15 clip-seal bags containing various amounts of methylamphetamine. They located three clip-seal bags of cannabis in the offender's clothing. Within the car they located two stolen mobile telephones. When the offender's wallet was searched at the police station, police located a black credit-card-style folding knife.
At the time of his arrest, the offender said that he had consumed “ice” (methylamphetamine) at about 2:00 pm on that day. Other material before the Court suggests that, at the time of the offence, the offender was using methylamphetamine at least every second day.
Objective seriousness
The combined weight of methylamphetamine found in the offender's possession was 10.457g, which is at the low end of the scale.
The offender appears to have been a street level user/dealer. The quantity found in his possession, the fact that it was found in his car and the fact that the Court has information that the offender was a regular user of the drug support this proposition. The street value of the drug is unknown, as is the extent to which the offender was to profit from its sale. However, it is clear that he did intend to sell the drug for profit because he had scales and the drug was located in clip-seal bags with other clip-seal bags readily available.
Although the offence has significant objective seriousness, it is far from the most serious offence of this nature. The offender’s role, the amount of drug and the lack of information about the extent to which the offender was to profit place the offence at the lower end of the scale of objective seriousness.
Subjective factors
The offender is 36 years old. He was 35 years old at the date of the offences.
The offender has a number of prior convictions for drug matters. As noted above, in 2014, he was sentenced for a serious drug matter that occurred in 2012. He has also been sentenced for drug matters that occurred in 2003 (possessing methylamphetamine, for which he received a three-month suspended sentence) and 2001 (possessing cannabis, for he received a good behaviour order). There are two earlier matters of possessing a prohibited substance.
The offender has other matters on his criminal history, including dishonesty matters in the mid‑2000s. However, as an adult, the offender has served no full-time imprisonment as a sentenced prisoner.
While in custody at the Alexander Maconochie Centre (AMC) awaiting sentence on these matters, the offender was the subject of five disciplinary actions, including one for refusing to supply a urine sample for drug testing and four for possessing prohibited items, including makeshift weapons, implements for administering drugs and illicit drugs. The explanation that the offender advanced for these infringements lacks all credibility.
The offender was raised in a loving home, although his father was a firm disciplinarian who used corporal punishment. Until recently, the relationship between the offender and his father was poor. The offender has always enjoyed a close relationship with his mother. It is a significant stabilising influence on the offender that both his parents are currently very supportive of him.
When the offender was 19 years old, he left home to reside with his then partner. The relationship was characterised by substance abuse. It lasted seven years and produced a daughter who is now nine years old. She resides with the offender's parents. Prior to the offender going into custody last year, he saw his daughter frequently and she often stayed overnight at his residence. She visits him in custody. The offender is close to his daughter and her presence in his life is another very important stabilising influence.
The offender has the equivalent of a Year 10 Certificate. He has a Certificate IV in computer animation, which he obtained about 10 years ago. He has held intermittent employment in relatively unskilled occupations but, as a result of becoming "mentally unstable" and presenting as unreliable to employers, since 2006 he has been on the disability support pension.
The offender has a long history of polysubstance abuse. When he was 12 years old, he began to use cannabis, opiates and amphetamines as a form of self-medication to alleviate symptoms of mental illness and possibly symptoms of depression. In 2002, the offender was diagnosed with depression which may have been present since childhood. In 2005, he was diagnosed with schizophrenia. Subsequently, he was diagnosed with paranoid schizophrenia, secondary to polysubstance abuse. The offender has been receiving antipsychotic medication at the AMC.
The offender has undertaken drug rehabilitation. In his twenties he undertook periods of residential rehabilitation. In connection with the proceedings before Higgins CJ, in the latter part of 2013 and early 2014, the offender spent seven months in the Grow Community Dual Diagnosis Program. After his sentence in February 2014, he remained in the Program for about six weeks. The offender has received pharmacotherapy for his drug problem: buprenorphine and, at one stage, methadone while in the AMC. I understand that pharmacotherapy has now terminated and the offender has no ongoing reliance on those medications. The offender has undertaken SMART Recovery and other drug programs at the AMC.
The offender received a head injury in a 2010 assault. The defence sought to obtain a neurological report about his current condition, but was unable to do so. It remains uncertain as to whether the 2010 head injury continues to impact on the offender.
An emerging issue is the question of institutionalisation, which is a matter about which the offender's parents are concerned.
The offender's situation is complex, like that of any offender who has a dual diagnosis. The coexistence of mental health problems and substance abuse problems remains a serious concern and one which will not be addressed easily, particularly because of the offender's lack of insight and firm resolve to address his problems. As submitted by the prosecutor, even during the offender’s recent imprisonment he has been unable to resist significant drug use. The CADAS report states:
Mr Slater had no plans for future AOD treatment and reflected little insight, even when prompted, to think about possible relapse risks. He declined the suggestion of returning to the Grow community.
The offender has also expressed ambivalence about undertaking the Solaris Therapeutic Community Program. However, he has been assessed for the Detention Exit Community Outreach Program, which may be able to provide support in relation to dual diagnosis issues.
Other sentencing considerations
The prosecution provided a helpful table of cases that are more or less comparable. Of course, the maximum available penalty is the most significant sentencing parameter.
The offence is of relatively low objective seriousness, but it was committed while the offender was on conditional liberty for a much more serious offence of the same nature and the offender remains at high risk of re-offending. His rehabilitation prospects are, at best, doubtful. The offender's criminal history and his subjective circumstances do not increase the sentence that would otherwise be imposed, but nor do they support any significant leniency.
The Court has regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, purposes of personal and general deterrence, accountability and punishment are important. Rehabilitation is to be considered, both in relation to the type of sentence that should be imposed and in relation to the way in which the sentence should be structured. There is no doubt that the offender should receive a sentence of full-time imprisonment, both in relation to the matters for which he is to be re-sentenced and in relation to the new matter of trafficking in methylamphetamine.
Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), if satisfied of a breach the Court must cancel a good behaviour order and either impose the suspended sentences or re-sentence the offender for the offences. It is more convenient to re-sentence the offender, but in doing so I pay close regard to the length of those sentences and the circumstances that led to their imposition.
I cancel the good behaviour orders. The offender is convicted of trafficking in methylamphetamine and he is convicted of the four transferred matters. I impose the following sentences:
(a)For the breach offence of trafficking in methylamphetamine, the offender is sentenced to 21 months' imprisonment from 29 April 2015 to 28 January 2017.
(b)For the breach offence of trafficking in cannabis, the offender is sentenced to six months' imprisonment from 29 April 2015 to 28 October 2015.
(c)For the offence of trafficking in methylamphetamine on 29 April 2015, I would have imposed a sentence of two years' imprisonment, but I have reduced it by 15% for the plea of guilty to a sentence of 20 months' imprisonment. That sentence will run from 29 April 2016 to 28 December 2017.
(d)For each of the transferred matters, I impose a 12-month good behaviour order. Each of the 12-month good behaviour orders will start from the date of the parole period (11 January 2017) and will be subject to the condition that the offender accepts the supervision of ACT Corrective Services for as long as they consider necessary and reports to Eclipse House within one working day of his release.
The effective sentence is 32 months’ imprisonment. I fix a nonparole period of 20 months and two weeks to expire on 11 January 2017.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 4 August 2016 |
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