R v Stott
[2016] ACTSC 94
•9 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stott |
Citation: | [2016] ACTSC 94 |
Hearing Date: | 9 May 2016 |
DecisionDate: | 9 May 2016 |
Before: | Walmsley AJ |
Decision: | See [33]. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdict following jury trial – drug offences – trafficking controlled drug – methylamphetamine CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdict following jury trial – weapons offences – s 5 Prohibited Weapons Act 1996 (ACT) – mace |
Legislation Cited: | Criminal Code 2002 (ACT) s 603(7) Prohibited Weapons Act 1996 (ACT) s 5 |
Parties: | The Queen (Crown) Sharon Ann Stott (Offender) |
Representation: | Counsel Mr Dean Sahu Khan (Crown) Mr John Nicholson SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 107 of 2015; SCC 113 of 2015 |
WALMSLEY AJ:
Introduction
Ms Sharon Ann Stott, who was born on 12 April 1963, was found guilty by a jury of two counts. One was trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The other was unauthorised possession of a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The minimum quantity for the trafficking offence is six grams. Beyond this offence, is the offence of trafficking in a commercial quantity where the minimum quantity is three kilograms.
The maximum penalty for the drug offence is 10 years imprisonment and for the prohibited weapons offence, five years.
Background
On 18 January 2015, the police executed search warrants at the offender’s Kambah home and seized a large quantity of drugs, namely 167.68 grams of methylamphetamine. The drugs were hidden around the house. Police also found a mace canister which was a prohibited weapon.
They also found paraphernalia for drug sales such as scales. They found a smoking pipe, some cannabis, ammunition for a shotgun and a rifle, a stolen iPad, and a large quantity of cash.
Originally, I was told that I would be asked to deal with the lesser offences relating to the ammunition and the stolen iPad remitted here from the Magistrates Court. However, I have today been asked only to sentence the offender for the two trial matters, as an appeal against the guilty verdicts has been lodged and the sentencing for the lesser matters is, by agreement, to be deferred until after the result of the appeal is known.
When the police executed the warrants, a co-accused, Mr Vo, was found to be present at the home. Two days before the trial of the current offender, Mr Vo pleaded guilty to a lesser offence of attempting to participate in the sale or supply of a drug of dependence, namely amphetamines, based on an assumption, which was not an assumption before me, that he went to the offender’s home to buy drugs, with $5,000.00 to spend.
The story Mr Vo gave to police, and which was part of the factual matrix on which he was sentenced, was that he either bought, or intended to buy, drugs for his own use and some for selling. He had no other significant criminal history and the end result for him was a non-custodial sentence after he had agreed to assist the police by giving evidence against the offender in this case. As it turned out, he did not provide much assistance, but that is irrelevant in this sentencing exercise. Clearly he was guilty of a less serious offence and as opposed to the current case, he had a strong subjective case and a limited record. It is agreed, I think, by Mr Nicholson SC that the parity issue is not of relevance.
Ms Stott, in effect, denied to police that any drugs were present when the search warrants were executed.
In relation to the trafficking offence, the Crown relied on the fact that when they executed the search warrants, the police found the drugs hidden in strange spots in the house and they also found large quantities of cash hidden about the house.
As it happens, a large quantity of the cash was tied up in bundles and the offender’s DNA was found on some of the rubber bands around some of them. The cash was found in two areas. There was $31,800.00 found in a storage place in a lounge chair in the lounge room and there was $14,405.00 found in the offender’s bedroom. She conceded that the money in her bedroom was hers but not the other money. She claimed to be in the business of buying and selling motor vehicles so as to account for having cash. However, evidence adduced from the person she nominated as the source of her income denied having paid her any money for any motor vehicle dealing.
The case had its complexities from a proof point of view. There was a tiny quantity of methylamphetamine police found on the refrigerator in the home. That was significantly less than the trafficable quantity and was essentially ignored by the Crown in attempting to prove its case. The Crown essentially relied on the finding of two large quantities of methylamphetamine – 27.909 grams being found in an air conditioning unit in the offender’s son’s bedroom, and 139.005 grams found in the family’s washing machine.
The jury heard evidence that a friend of the offender’s son with some drug connections had put the drugs in the air conditioning unit in his bedroom. There was also evidence that the co-accused, Mr Vo, had put drugs in the washing machine. The Crown presented a scenario to the jury that when the police came, the drugs or the money, or both, were in the house. They were there either for sales by Mr Vo to the offender or purchases by Mr Vo from the offender; it was put that in the panic of the police arrival, the offender and Mr Vo hid the drugs and the monies around the house.
There was evidence before the jury that Mr Vo was a drug dealer and he had been in Canberra from Sydney for several days on his commercial round. In putting the Crown case to the jury, the Crown submitted that what was available to them was a number of alternatives. They could find that she concealed or she guarded or possessed the drugs in the air conditioning unit or the washing machine or both.
Mr Nicholson put a number of matters to the jury on the possible scenarios other than one being that the offender was in possession of the drugs or was concealing or guarding them and he put to the jury reasons why her DNA might have been on the money as a result of an innocent transfer. But the jury clearly did not accept Mr Nicholson’s submissions. At the close of the Crown case, Mr Nicholson submitted to me that there was insufficient evidence on either count and that I should give directed verdicts. For reasons I gave at the time, I dismissed that application.
I have taken the jury verdict to amount to a finding beyond reasonable doubt that the jury was satisfied that she was trafficking in at least one of the senses put by the Crown. The Crown put that she was concealing or guarding the drugs or possessing the drugs. As the drugs were in the washing machine and were therefore hidden in the house where she lived, in her laundry, and she was a long term government tenant of the house, I find that the jury’s verdict on the drug count amounts to a finding beyond reasonable doubt that she concealed the drug in the washing machine.
In view of evidence of her son concerning the drugs in the air conditioning unit that a friend put them there, and there being evidence of his own drug problems and his own engagement with the criminal law arising from drug use, I conclude that the jury was not satisfied beyond reasonable doubt about the drugs in the air conditioning unit and proceeded to find the verdict of guilty only on the basis of the presence of the drugs in the washing machine.
I am satisfied the jury found beyond reasonable doubt that her DNA being on the rubber bands on wads of money was an important factor. She was a friend of Mr Vo. He was a known drug dealer. Her phone number was in his phone. He stayed at her home from time to time and she was concealing the drugs. I am satisfied based on all of those matters that the jury’s verdict was based on her concealing the drugs for trafficking by herself either with or without Mr Vo.
In other words, I find that she was not simply looking after the drugs for Mr Vo. I propose to sentence her on the basis that the verdict of guilty involved a finding by the jury that she was guarding or concealing the drugs for the use to which I have referred and I think no more can be said about it.
The mace was found in her home. She carried an onus of, in effect, showing that she did not know about it and there was no evidence put by her on that issue. I am satisfied that the jury was satisfied beyond reasonable doubt that she did know about the mace and that she had not discharged her evidentiary onus.
Objective seriousness
The mace possession was not a serious weapon offence. It was not a gun and I would place that offence at the very low end of the scale of objective gravity for that offence. Indeed, the Crown suggested to the jury that some might be surprised to know that it was an offence to have a mace spray in your house.
But the drug offence was objectively, a serious example of the offence. The quantity of the drug is not a vital factor on objective gravity but it is a relevant one.
Here the quantity was 139.005 grams, being 23 times the minimum trafficable quantity. On the other hand, as the commercial quantity offence is three kilograms, it was at the low end of the scale of seriousness for this already serious offence.
The offender has an extensive record, including matters similar to the drug offence. Her record stretches over the whole of her adult life in New South Wales and in the ACT.
She has recently been sentenced for serious offences including forcible confinement, for which she was sentenced to three and a half years in 2009. On 24 October 2011, Refshauge J sentenced her after a plea of guilty for trafficking in a small amount of methylamphetamine to 21 months imprisonment and released her into the community. In my view, her record permits no leniency.
Subjective circumstances
She has a sad and difficult social history. Her childhood was impoverished in the sense that it was violent and chaotic. She ran away from home when she was very young. She has apparently lived on social security payments for many years. She has battled drug addiction, but she seems, for the moment, to be in charge of that. She did tend to minimise her part in the offences when talking to the authors of the pre-sentence report, according to their assessment. I infer that her prospects of rehabilitation are limited by reason of her minimisation of the offences and her lengthy criminal history, her past drug use and her history of unemployment.
She is 54 years of age. A partner was murdered in 2008, dealing her, as her referee said, a cruel blow. She has two boys. One has a drug history and a record and has been in prison. The younger boy has, it seems, a good history.
In evidence was an insightful reference from Ms Rita Ann Baxter, and I have taken that into account. The sad and difficult childhood of the offender is also something which I have taken into account. For that she is entitled to greater understanding than would usually apply.
Mr Nicholson conceded no penalty other than imprisonment was appropriate. He submitted that I ought impose a sentence but order that the sentence be served by intensive corrections order or that any sentence be suspended. The Crown urged upon me that the case was one deserving of a lengthy period of imprisonment and it would follow that she would not qualify to serve any period of imprisonment by intensive corrections order because four years is the maximum imprisonment period to permit the sentence to be served by an intensive corrections order.
The Crown provided me with a number of cases where ACT judges have sentenced offenders for this and like offences and I have taken into account Mr Nicholson’s submission that the offence was in the past, different from its present form. I have taken the cases into consideration and as Mr Nicholson urged me to, I took account of the fact that they involved different factors from this case.
I take into account the need to deter this offender and others.
In particular, I take into account that the supply of methylamphetamine causes great harm to individuals and their families and to society generally.
I have come to the view that I should impose a period of full time imprisonment and that it be greater than could be served by way of an intensive corrections order.
Sentence
For the trafficking offence, I impose a sentence of five years of imprisonment to date from 1 April 2016 to expire on 31 March 2021. For the weapons offence, I impose a sentence of one month imprisonment to be served from 1 April 2016 to expire on 30 April 2016. The offender will be eligible for parole after serving two years and eight months of custody. That is, on 1 December 2018.
| I certify that the preceding thirty three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley. Associate: Nishadee Perera Date: 11 July 2017 |
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