R v Smith
[2019] ACTSC 196
•22 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith |
Citation: | [2019] ACTSC 196 |
Hearing Date: | 18 July 2019 |
DecisionDate: | 22 July 2019 |
Before: | Mossop J |
Decision: | See [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importing border controlled drugs – attempting to possess border controlled drugs – where the ‘dark web’ is used to import border controlled drugs – cultivation of two cannabis plants – possessing a prohibited substance – possessing declared substances |
Legislation Cited: | Crimes Act 1914 (Cth), ss 20(1)(a), 20(1)(b) Criminal Code Act 1995 (Cth), ss 307.3, 307.4, 308.1, 312 Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), s 36 |
Cases Cited: | Cameron v The Queen [2002] HCA 6; 209 CLR 339 Lee v R [2017] NSWCCA 156 |
| The Queen v De Simoni (1981) 147 CLR 383 | |
Parties: | The Queen (Crown) Trinity Smith (Offender) |
Representation: | Counsel E Wren (Crown) J Robertson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 125 of 2019 SCC 126 of 2019 |
MOSSOP J:
Introduction
The offender, Trinity Smith, pleaded guilty in the Magistrates Court to the following indictable offences:
(a) one count of importing a border controlled drug, namely 3,4‑methylenedioxymethamphetamine (MDMA) contrary to s 307.3 of the Criminal Code Act 1995 (Cth), the maximum penalty being imprisonment for 10 years or 2000 penalty units or both (CC2018/13893);
(b) one count of attempting to possess controlled drugs, namely N,N dimethyltryptamine (DMT) contrary to s 308.1 of the Criminal Code, the maximum penalty being imprisonment for two years or 400 penalty units or both (CC2019/3711);
(c) one count of importing border controlled drugs, namely ketamine and 2‑fluorodeschloroketamine contrary to s 307.4 of the Criminal Code, the maximum penalty being imprisonment for two years or 400 penalty units or both (CC2019/6076); and
(d) another count of breaching s 307.4 by importing lysergide (LSD) (CC2019/6077).
The offender also pleaded guilty to the following related summary offences:
(a) one count of cultivate two cannabis plants (CC2018/13890) contrary to s 162 of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being one penalty unit;
(b) one count of possessing a prohibited substance, namely, less than 50 grams of cannabis (CC2018/13891) contrary to s 171 of the Drugs of Dependence Act, the maximum penalty being one penalty unit; and
(c) two counts of possessing certain declared substances, namely oxycodone (CC2018/13892) and salvinorin A (CC2019/464) contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) the maximum penalty being 200 penalty units or imprisonment for two years of both.
Facts
The charges under the Criminal Code relate to five parcels containing border controlled drugs, addressed to the offender.
The first parcel was intercepted by the Australian Border Force (ABF) on 1 November 2018. It was addressed to the offender and was consigned from the Netherlands. The parcel contained a vacuum sealed plastic bag containing one tablet of a substance containing MDMA, weighing 0.426 grams. MDMA is a border controlled drug. This importation forms part of the rolled up charge CC2018/13893.
The second parcel was intercepted by the ABF on 8 November 2018. It was addressed to the offender and was consigned from Belgium. The parcel contained a foil sachet of taco seasoning mix which concealed 4.916 grams of a substance containing DMT. DMT is a controlled drug. This gives rise to charge CC2019/3711.
The third parcel was handed to police by a member of the public on 14 November 2018. The parcel was a small envelope addressed to the offender and contained a sealed cardboard sleeve containing 50 small MDMA tablets weighing 19.172 grams. The envelope had been addressed to the offender and had been sent from France. This importation forms part of the rolled up charge CC2018/13893.
Upon obtaining a search warrant on 15 November 2018, the police attended the offender’s home. The police found a laptop displaying a website called Dream Market. The offender said she used the website to purchase small amounts of drugs to be delivered by mail. She told police that she had recently ordered MDMA online using ‘Bitcoin’ to the value of a couple of hundred dollars. Later enquiries with BTC, a Bitcoin provider, revealed that the offender had held an account with that provider since 5 June 2017. The offender’s admission that she used the ‘dark web’ to import illicit substances via the post was thereby corroborated.
She also told police that she was intending to “move out bush” and was ordering the drugs for the purposes of having “a bit of fun” once she moved. She maintained that the illicit substances were only intended for personal use. She told police that she had been unemployed for three months and was struggling to make her mortgage repayments.
Further related to the charges under the Criminal Code, during the search of the offender’s premises, police seized:
(a) a ‘mylar’ clip seal bag containing 0.788 grams of a substance containing MDMA (this is part of the rolled up charge CC2018/13893);
(b) a clip seal bag containing 0.025 grams of a substance containing ketamine, which is a border controlled drug (this is part of the rolled up charge CC2019/6076);
(c) a clip seal bag containing 0.575 grams of a substance containing 2-flurodeschloroketamine, a drug analogue of ketamine. Any analogue of ketamine is a border controlled drug (this is part of the rolled up charge CC2019/6076); and
(d) a medium sized clip seal foil bag containing 1.329 grams of a substance containing 2-flurodeschloroketamine (this is part of the rolled up charge CC2019/6076).
During the search of the offender’s premises police also seized:
(a) two cannabis plants, one weighing 88 grams and the other weighing 152 grams (this gives rise to CC2018/13890);
(b) a medium sized clip seal bag containing 12.4 grams of cannabis bud (this gives rise to CC2018/13891);
(c) a small plastic container containing 0.523 grams of a substance containing salvinorin A, a declared substance (this gives rise to CC2019/464); and
(d) a mylar bag containing 13 oxycodone tablets and two small blister packs containing seven oxycodone tablets. The offender stated that these tablets were from a previous ‘endone’ prescription, yet was unable to provide the prescription (this gives rise to the rolled up charge CC2018/13892).
On 20 November 2018, the ABF intercepted another parcel from Belgium, addressed to the offender, containing 0.063 grams of cardboard containing LSD, a border controlled drug (this gives rise to charge CC2019/6077).
On 7 December 2018, the ABF intercepted a further postal consignment addressed to the offender, from the Netherlands, containing 22.304 grams of MDMA pills (this importation forms part of the rolled up charge CC2018/13893).
The identity of all substances were analysed and confirmed by the Australian Capital Territory (ACT) Government Analytical Laboratory. However, the purity of the drugs was not determined and for that reason the quantity of the pure drug in the amounts stated cannot be determined.
Objective seriousness
The assessment of the objective seriousness of the offences is influenced by:
(a)the purpose of the conduct;
(b)the offender’s knowledge of its illegality;
(c)her role in the importation;
(d)the extent of the reward she intended to gain; and
(e)the quantity of the drugs involved.
The offender was the only person involved at the Australian end. It was a relatively unsophisticated method of importing the drugs. She knew it was unlawful. She used the dark web to obtain the drugs. Save in respect of the MDMA, the quantities involved and the variety of drugs involved are consistent with the purpose of personal experimentation. The issues of the quantity of drugs and the extent of intended reward will be dealt with below.
The present case is made more complicated by the fact that the level of purity of the substances was not identified. Therefore, while there are gross weights determined, because the level of purity was not identified, pure weights have not been proven. It is the pure weight which is of significance for the purpose of the provisions of the Criminal Code which identify marketable, trafficable or commercial quantities and create offences in relation to such quantities: s 312. It is for that reason that offence provisions not involving any proven weight of the border controlled drug have been relied upon. The charges where that presents less of a problem are those relating to cannabis and the endone pills.
A similar issue was addressed in Lee v R [2017] NSWCCA 156 (Lee) in which a parcel containing a gross weight of 3.2 kilo-grams of methamphetamine was imported. The purity was not determined. The marketable quantity was only 2 grams. The Court of Appeal concluded from the reasons that the sentencing judge sentenced the offender on the basis that the appellant had imported 2 grams, or more likely considerably more. As a consequence, the Court of Appeal considered that this infringed the principal in The Queen v De Simoni (1981) 147 CLR 383. In resentencing the Court noted (at [42]):
Whilst it is necessary to have regard to the quantity imported as being less than 2 grams, it is undoubtedly the case and a highly relevant matter that the applicant's intention was that a far more substantial amount of the drug be brought into the country. His moral culpability is greater for that reason.
In this case the relevant figures are:
(a)MDMA: gross weight 42.69 grams, marketable quantity 0.5 grams;
(b)Ketamine: gross weight 1.92 grams, marketable quantity 3 grams;
(c)LSD: gross weight 0.063 grams, marketable quantity 0.002 grams;
(d)DMT: gross weight 4.916 grams, marketable quantity 250 grams.
In the present case however, there is not such a dramatic difference between the gross weight and the marketable quantity weight as there was in Lee. In the absence of evidence about the usual quantities of active ingredient to be contained in gross amounts such as those the subject of the present charges, it is not possible to reach any conclusion beyond reasonable doubt as to whether and the extent to which the intended import would have exceeded the marketable quantity. It is certainly not a matter in relation to which judicial notice is possible. The charge in relation to which this is most significant is that in relation to MDMA, where the gross weight is approximately 85 times the marketable quantity. However, in the absence of evidence about the usual levels of purity, no conclusion can be reached on the basis of the significant number of tablets containing MDMA that were found.
The other substance which exceeded the marketable quantity was LSD. The gross weight of the LSD included the cardboard on which it was found. It is not possible to draw any conclusion about the likelihood that the pure amount of LSD exceeded the marketable quantity.
Therefore, in my view, the offender must be sentenced on the basis that in relation to each of the drugs the pure weight did not exceed the marketable quantity, and no conclusion can be reached beyond a reasonable doubt about whether or not the offender intended to import more than a marketable quantity.
In relation to the MDMA, the charge is a contravention of s 307.3 of the Criminal Code. The plea of guilty to this charge is an acceptance by the offender that at least part of the drugs were intended to be sold. That is a conclusion that can be drawn because s 307.3 provides that it is a defence to that charge if the person establishes that they did not intend, nor believed that another person intended, that any of the drugs were to be sold. The evidence does not establish beyond reasonable doubt the level of profit that was likely to have been, or was intended to be made, as a result of the sale of the MDMA. In R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106, the Court of Appeal observed at [72] that unless there is evidence to the contrary, it should be inferred as a matter of common sense that a person who is importing drugs is doing so for profit. There is no evidence that is capable of establishing that the offender was part of any larger importation or trafficking enterprise.
Counsel for the offender conveyed his instructions that the offender was intending to provide some of the MDMA to two of her friends at cost. The Crown disputed this contention. In the absence of evidence from the offender to support the contention, and the presence of some evidence in the documentary material consistent with an intention to sell drugs at a profit, I am not satisfied that it has been established on the balance of probabilities that her intentions were as limited as her instructions would indicate.
I treat the MDMA charge as being at the low to mid range of objective seriousness for this offence.
Of the two cannabis offences, the offence relating to the plants is in the upper range of objective seriousness and the offence relating to the cannabis buds is in the mid range of objective seriousness for these offences. However, that is because the offences are quite specific and have very low maximum penalties.
Each of the other charges are in the low range of objective seriousness for the respective offences, having regard to the gross weight involved, the absence of any evidence of the pure weight and the absence of other factors that would make it more serious.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections, a reference from a work colleague and the report of Mr Visser, a clinical psychologist.
The offender is 31 years old. She lives by herself with her dogs in a property subject to a mortgage for which she is fully responsible. The offender has a Diploma in Network Engineering. She currently works in the IT industry.
Prior to her current employment the offender was unemployed for approximately 10 months from August 2018. During this time she did not seek unemployment benefits. This period of unemployment has created significant financial problems for the offender. She reported to the authors of the pre-sentence report that she has debts related to her mortgage totalling approximately $550,000.
The offender has intermittently used cannabis since the age of 14. At the age of 23 this consumption progressed into frequent weekly use. Upon her unemployment her use of cannabis became sporadic.
The offender reported to authors of the pre-sentence report that she had tried other illicit substances, aside from heroin, out of curiosity as to their effects. For some time the offender has been prescribed medication for psychological and physiological conditions. Experimentation with illicit drugs is reported by the offender to be part of a personal experiment to see whether they would more effectively assist her in her personal and professional life.
According to the offender, at the age of eight she was sexually assaulted by a 14‑year‑old child of family friends, an event which the offender’s mother did not believe to have occurred. The incident was never reported to the police. The offender’s father, while not recalled to be violent, engaged in alcohol abuse. The offender’s parents separated when she was 14 years old.
The offender has lost contact with her mother. After a period without contact with her father, she has reformed a mutually supportive relationship with him.
In August 2017 the offender successfully applied for a personal protection order following text messages from a work colleague which threatened her life and that of her animals. The order was in place for one year. The events caused the offender to enter a depressive state which removed her capacity to function properly in her workplace.
The offender is confirmed to suffer from attention deficit hyperactivity disorder alongside autism spectrum disorder, depression and polysubstance abuse. The offender also reports suffering from hypothyroidism, chronic fatigue and anxiety. A psychiatric review of the offender did not raise any acute concerns for the offender’s mental health or safety, although this is clearly different to Mr Visser’s medical report which identified some specific concerns. She regularly attends psychiatric and psychology sessions.
The offender reportedly consumed alcohol from ages 16 to 22, often to intoxication, within the context of staff drinks after work. Since that time the offender’s alcohol consumption has diminished, particularly when she became unemployed.
The pre-sentence report identifies a range of protective factors which include family supports, employment and stable housing. She has been assessed as being of medium to low risk of recidivism.
The offender has been recorded as accepting responsibility for her actions.
Criminal history
The offender does not have any criminal history.
Plea of guilty
The offender pleaded guilty to each of the charges when the proceedings were in the Magistrates Court. They were entered after negotiations with the Crown at a relatively early opportunity following receipt of the relevant ACT Government Analytical Laboratory certificates. So far as the Commonwealth offences are concerned, any discount for pleading guilty must be in accordance with Cameron v The Queen [2002] HCA 6; 209 CLR 339, namely that the discount should be based on evidence of remorse, an acceptance of responsibility and a willingness to facilitate the course of justice rather than for the utilitarian benefit of a plea. I adopt this approach in relation to the Commonwealth offences. In relation to the Territory offences, I will take the guilty pleas into account pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT). The custodial sentence that I will impose is accordingly reduced by 25% of what otherwise would have been imposed. I take into account the guilty plea more generally for the other offences.
Time in custody
Following the offender’s arrest, she spent 13 days in custody prior to being released on bail. I take this period into account and will backdate the sentence that I impose by a period of 13 days.
Consideration
In the case of the offences involving importation of drugs through the post, general deterrence must be a very significant consideration in sentencing because of the ease with which such offences may be committed and the difficulty of detection.
The offending is, in relation to all of the charges except the MDMA charge, consistent with experimentation with a variety of drugs. In relation to the MDMA, the conduct is consistent with an intention to supply some of it, but also with an intention to use it herself.
The offender’s autism and depression are significant in a number of the Verdins principles. I accept the psychological evidence that her depression is likely to have had some effect upon her offending, reducing her ability to exercise appropriate judgment and her ability to make calm and rational choices. Her suitability as a vehicle for general deterrence is modestly reduced by her conditions. I accept the evidence that a sentence of imprisonment would weigh more heavily upon her and would have a significant effect on her mental health. In particular, I accept the evidence of Mr Visser that a period of incarceration would further impact upon her mental health and that she would be, at least initially, at a high risk of suicide.
Having regard to the maximum penalty, it is only in relation to the MDMA offence that in my view, having considered the available alternatives, no sentence other than a custodial sentence is appropriate in the circumstance of this case. In relation to that offence, the maximum penalty, the need for general deterrence and the fact that it is a rolled up charge involving multiple importations lead to the conclusion that only a custodial sentence would be appropriate. The starting point is a sentence of eight months’ imprisonment reduced to six months on account of the plea of guilty.
Having regard to the objective seriousness of the offence, the offender’s good character to date and her personal circumstances, the other federal offences can be dealt with by way of recognizances. Similarly, the Territory offences other than those relating to cannabis may dealt with by way of good behaviour orders.
In relation to the two cannabis offences, having regard to the offender’s good character to date, the very low maximum penalties for the offences and the other sentences that I impose today, I consider that it is not appropriate to impose any punishment other than nominal punishment. Therefore, they will be disposed of without conviction under s 17 of the Crimes (Sentencing) Act.
Orders
The orders of the Court are:
1. On the charge of importing a border controlled drug (MDMA) (CC2018/13893), the offender is convicted and sentenced to imprisonment for a period of six months from 9 July 2019 to 8 January 2020 and I direct that she be released forthwith upon entering into a recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth) with security of $500 without surety to be of good behaviour for a period of 12 months with the following additional conditions:
i. that she be subject to supervision by the Director-General administering the Crimes (Sentencing) Act 2005 (ACT) for that period or such shorter period as determined by the Director-General;
ii. that she participate in such educational, vocational, psychiatric or psychological programs as directed by the Director-General; and
iii. that she submit to urinalysis as directed by the Director-General.
2. On the charge of attempting to possess a controlled drug (DMT) (CC2019/3711), the offender is convicted and required to enter into a recognizance under s 20(1)(a) of the Crimes Act1914 (Cth) with security of $500 without surety to be of good behaviour for a period of 12 months.
3. On the charge of importing a border controlled drug (fluorodeschloroketamine) (CC2019/6076), the offender is convicted and required to enter into a recognizance under s 20(1)(a) of the Crimes Act1914 (Cth) with security of $500 without surety to be of good behaviour for a period of 12 months.
4. On the charge of importing a border controlled drug (LSD) (CC2019/6077), the offender is convicted and required to enter into a recognizance under s 20(1)(a) of the Crimes Act1914 (Cth) with security of $500 without surety to be of good behaviour for a period of 12 months.
5. On the charge of cultivating cannabis (CC2018/13890), the charge is dismissed under s 17 of the Crimes (Sentencing) Act2005 (ACT)
6. On the charge of possessing cannabis (CC2018/13891), the charge is dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
7. On the charge of possessing a declared substance (oxycodone) (CC2018/13892), the offender is convicted and required to enter into an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.
8. On the charge of possessing a declared substance (salvinorin A) (CC2019/464), the offender is convicted and required to enter into an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: |
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