R v Thorn
[2015] ACTSC 218
•29 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thorn |
Citation: | [2015] ACTSC 218 |
Hearing Date(s): | 29 July 2015 |
DecisionDate: | 29 July 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to imprisonment for two years and one month, to be released after serving 12 months on a recognizance release order, subject to conditions. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – drug importation offences – import commercial quantity of border controlled drug – Gamma-butyrolactone (GBL) – scheduled offences – pleas of guilty – cooperation with law enforcement authorities – long history of substance abuse – general deterrence – rehabilitation – discount for pleas of guilty and cooperation with law enforcement authorities |
Legislation Cited: | Crimes Act1914 (Cth) ss 16A, 16BA Criminal Code Act 1995 (Cth) ss 307.1, 307.8, 307.11, 308.1 Criminal Code Regulations 2002 (Cth) sch 3 |
Cases Cited: | DPP (Cth) v Maxwell [2013] VSCA 50 R v Karan [2013] NSWCCA 53 R v Phelps (Unreported, NSW District Court, Ellis J, 5 September 2014) |
Parties: | The Queen (Crown) Christopher Walter Thorn (Offender) |
Representation: | Counsel Ms K Musgrove (Crown) Mr S Whybrow (Offender) |
| Solicitors Director of Public Prosecutions (Crown) Ben Aulich and Associates (Offender) | |
File Number(s): | SCC 108 of 2015 |
MURRELL CJ:
The offender entered a plea of guilty in the Magistrates Court to the offence that between 12 October and 20 October 2014 he imported a commercial quantity of a border controlled drug, namely Gamma-butyrolactone (GBL), contrary to s 307.1 of the Criminal Code Act 1995 (Cth) (Criminal Code).
Pursuant to s 16BA of the Crimes Act1914 (Cth) (Crimes Act), I take into account two scheduled offences:
(a)On 15 October 2014, in the ACT, the offender attempted to commit an offence against s 307.8 of the Criminal Code in that he attempted to possess a commercial quantity of GBL; and
(b)On 15 October 2014, in the ACT, the offender possessed a controlled drug, methamphetamine, contrary to s 308.1 of the Criminal Code.
The maximum available penalty for the principal offence is life imprisonment, a fine of $1.275M or both. The maximum available penalty for the first scheduled offence is the same as that for the principal offence. The maximum available penalty for the offence of possession of a controlled drug is two years' imprisonment, a fine of $68,000 or both.
The offender indicated the pleas in the Magistrates Court at an early stage, albeit in the face of a strong prosecution case. It should also be noted that the offender was immediately forthcoming with police when they attended his premises in October 2014; he readily admitted his involvement and proffered information. The offender is entitled to a discount of at least 20% for his willingness to facilitate the course of justice, and I will allow 25%.
Facts
The agreed facts indicate that, on 12 October 2014, the Australian Customs and Border Protection Service intercepted a package addressed to the offender in the ACT. The package had been sent from a company in Shanghai, China. It was labelled as a sample of a chemical substance. The package contained a bottle which itself contained a clear liquid. Analysis of the clear liquid found that it included a pure weight of 5.2 kilograms of GBL. GBL is soluble in water. When ingested by humans it is naturally converted to Gamma-hydroxybutyrate or GHB, an illicit drug.
On 15 October 2014, a controlled operations authority was issued. On the afternoon of 15 October 2014, an AFP officer, posing as a delivery person, attended the offender's address. The offender signed for the consignment and took delivery of the package. Shortly thereafter, a search was conducted pursuant to a search warrant. During the search the offender cooperated by showing police to the location of the container, which he stated contained GBL. The offender had hidden the item in a location where he believed that his partner would not find it.
The offender was cautioned, and then made significant admissions to AFP officers. He stated that he had ordered the substance online from China, using internet cafes to order it via email. He described the manner in which he had paid for the substance. He stated that he uses the substance on a daily basis and had been using GBL for 12 years. The offender said that he used to buy GBL in Sydney, but it had become too expensive and that is why he commenced purchasing it online from China. The offender also volunteered that there was ice on the premises. The offender said that he smoked it daily. AFP officers located a total of nine grams of methamphetamine (ice) and two smoking implements.
Following his arrest, the offender spent approximately 92 days in custody.
After he was taken into custody on 19 October 2014, the Australian Customs and Border Protection Service identified a further imported package addressed to the offender. This package was similar to the first package, but in this case it contained 18 kilograms of pure GBL. A day later, on 20 October, the Australian Customs and Border Protection Service identified a third package addressed to the offender that had entered Australia from China. This third package contained 1.9 kilograms of pure GBL. During a subsequent record of interview the offender admitted that all three items belonged to him. The AFP also seized laptops from the offender's residence and confirmed that the offender had used them to conduct internet searches relating to GBL.
GBL is a border controlled drug. The commercial quantity of GBL is one kilogram. The total pure weight of the GBL imported by the offender was 25.26 kilograms. Methamphetamine is a controlled drug, as defined in sch 3 of the Criminal Code Regulations 2002 (Cth). The approximate cost to the offender of the GBL that he purchased was $1,000 to $2,000 for the 25 kilograms. Had the substance been purchased in Australia, the cost for 25 kilograms would have been about $15,000.
The prosecution accepts that the GBL was for the offender's personal use. There is no evidence indicating that the offender has ever supplied that substance or any other illicit drug. At the time of the offences, the offender's drug associates were located in Sydney, so he did not have ready access to a drug market in Canberra.
Subjective circumstances
The offender is 38 years of age. He is the youngest of five children. He had a troubled childhood. From an early age, the offender was exposed to heavy alcohol abuse by his mother. He was also physically neglected. As a consequence, when he was about five years old he moved to live with his adult sister and brother-in-law. Because his mother was unable to adequately care for him, he remained there until he was 13 years of age. When he was about 13 years old, his brother-in-law insisted upon him returning to his mother's home, and the offender returned to his mother under sufferance. His mother continued to abuse alcohol, as did the offender’s brothers who lived there.
The offender had a difficult time at school. He was bullied. He struggled because of the neglect at home and also because he was conflicted in relation to his sexual preference.
Towards the end of his teens, the offender's life improved. The offender acknowledged his sexual preference and he has been able to live openly since that time. In his early 20s, he formed a relationship with his current partner, who has been a great stabilising influence in the offender’s life.
When the offender was in his 20s, his mother gave up drinking and the offender developed a very close relationship with her. He was devastated by her death about five years ago. As an adult, the offender also developed a very close relationship with his siblings and other family members, who continue to provide strong support.
The offender has a long history of substance abuse. Given the domestic situation during his childhood, he has not been overly attracted to alcohol. Instead, he has abused illicit drugs. According to a CADAS report, he commenced using amphetamines at 23 years of age and used them recreationally until mid-2014, when his use became problematic. He commenced using GBH about 12 or 14 years ago, and was using it heavily until his arrest. He has also used other drugs recreationally.
The offender’s substance abuse was the driver for the commission of the subject offences.
Following his arrest, the offender remained in custody for about three months. In January 2015, he was released on strict bail conditions, including daily reporting, a curfew, a prohibition on internet access, and attendance at Arcadia House for a residential rehabilitation program. The offender successfully undertook that program. It involved a residential placement for eight weeks followed by a one month second phase that required full time participation (Monday to Friday) on a live out basis. Throughout the program, the offender had to remain abstinent and provide random urine samples. None returned a positive result.
After completing the Arcadia House Program, the offender remained at Arcadia House for a further month, assisting them with the delivery of the Program to others. He acted as a role model and conducted sessions with new participants. When he left Arcadia House, he had a relapse prevention plan, which he has endeavoured to implement.
Longstanding substance dependency is a chronic relapsing condition. Unfortunately, the offender experienced a relapse two weeks ago. This occurred when he attended a social function. He was feeling depressed. He was offered drugs and, after resisting the offer for a period, he succumbed. Shortly afterwards, he telephoned his partner and disclosed what had occurred. Later, he disclosed to Corrective Services that a drug test result was likely to prove positive, which proved to be the case.
I am not overly concerned about the relapse. It serves to illustrate to the offender that relapses do occur and it is important to avoid complacency. It is obvious that the offender has taken very important steps towards rehabilitating from substance abuse. In the past, he has demonstrated that he can remain drug free. He was free of substance abuse for about three years, between about 2011 and early 2014. He enjoys the support of a partner who is not a drug abuser. The offender now appreciates that substance abuse has been very damaging to his relationship, which he values highly. These considerations greatly reduce the risk of relapse and associated reoffending. If he can address his substance abuse problem, then the risk of recidivism is virtually eliminated.
A psychological assessment of the offender indicates that he suffers from depression and anxiety, perhaps related to his difficult early years. The reporter states that, at the time of his arrest the offender was diagnosed with major depressive disorder and also met the DSM-5 criteria for substance use disorder, but as a result of treatment the offender is now in remission from both conditions.
The offender is somewhat resistant to treatment for depression, but he may have to embrace treatment should he suffer from significant symptoms in the future. In the past, he has suffered from significant symptoms, and during his most challenging teen years he made a serious suicide attempt.
Other sentencing considerations
The general sentencing principles concerning serious Federal drug offences were discussed in R v Karan [2013] NSWCCA 53. At 54, Adamson J, with whom Johnson and Harrison JJ agreed, set out the relevant principles. A sentence must reflect the important sentencing purpose of general deterrence; i.e. must operate to inform would-be drug traffickers that the potential financial rewards from trafficking in drugs are more than neutralised by the risk of severe punishment.
It is significant that, in this case, the quantity of the drug was 25 kilograms, i.e. 25 times the commercial quantity of one kilogram. However, while the weight of the drug imported is always relevant to sentencing, it is not necessarily the determining factor.
A more important consideration is the offender's role in the drug enterprise. It is often difficult for a court to appreciate the full nature and extent of an enterprise or the offender's involvement, but there is no difficulty in this case. The offender had a one-man operation; it was entirely planned and implemented by the offender himself. The degree of planning associated with the operation meant that the offender had to undertake internet research and then link up with a supplier in China. It is significant that there was more than one importation; the principal offence involves three separate importations, albeit that the three packages were imported in quick succession, over a period of about a week.
General deterrence remains an important sentencing purpose in the present case. The case is significantly different from most cases of importing a commercial quantity of an illicit substance in that, in this case (as the prosecution conceded), the drug was imported for personal use. General deterrence looms large as a sentencing purpose in the context of cases that involve the importation of a commercial quantity of drugs; an activity often conducted for profit, and often very significant profit. Although there was no direct profit in this case, as the prosecutor submitted, the offender's conduct still involved a personal gain. The offender imported the drugs because they were much more expensive if purchased in Australia, and he thereby saved about $13,000 to $14,000, not to mention the risks associated with trawling the streets of Sydney for the purpose of purchasing an illicit substance. However, the case is unusual because of the absence of any direct financial benefit to the offender.
The prosecution has provided the Court with a number of cases that are comparable to a greater or lesser extent. The most comparable case is the decision of R v Phelps (Unreported, NSW District Court, Ellis J, 5 September 2014) (Phelps). That matter involved the importation of 25 kilograms of GBL. The offender accepted delivery in return for the waiver of a $10,000 debt. His circumstances were somewhat similar to those of the present offender. He was 30 years of age. He entered a plea of guilty at the earliest opportunity. He had a substance abuse and mental health problems, but was undertaking rehabilitation. He had prior convictions, but they related to minor drug matters. He received a 15% discount for his assistance to the authorities. After a discount of 40% for the plea of guilty and assistance to the authorities, the offender was sentenced to a term of imprisonment of three years, to be released on recognizance after serving 15 months. That indicates a starting point for the sentence of about five years' imprisonment.
I have also been referred to the decision of DPP (Cth) v Maxwell [2013] VSCA 50 (Maxwell), a Crown appeal alleging manifest inadequacy in relation to sentences imposed for importing the commercial quantity of GBL. The sentences that were imposed were three years’ imprisonment and two and a half years’ imprisonment respectively, and the total effective sentence was four years' imprisonment, with a non-parole period of two years. The Victorian Court of Appeal dismissed the appeal against inadequacy, emphasising that the consistently lower sentences that had been imposed for the importation of GBL may reasonably be justified because of the dramatic difference in the profit associated with selling GBL as compared to other border controlled substances, and the related, reduced need, for sentences to reflect the purpose of general deterrence.
Annexed to Maxwell is a table of sentences imposed for offences of importing GBL. It discloses that a significant range of sentences have been imposed for such offences, ranging from a fine of $3,000, to a sentence of six years' imprisonment imposed upon an offender who pleaded not guilty, had prior convictions, and provided no assistance to the police. Consistent with the considerable range of sentences disclosed in that table, a search of the Commonwealth Sentencing Database shows that, for offences against s 307.11 involving GBL, of the 12 cases revealed, only 50% of the offenders received a sentence of full time imprisonment. Most offenders received a fully suspended sentence.
The Court is required to consider relevant factors under s 16A of the Crimes Act. The prosecution has identified the relevant factors to be taken into account in this case: the nature and circumstances of the offence; other offences that are required to be taken into account; a plea of guilty; cooperation with law enforcement authorities; specific deterrence; adequate punishment; subjective features; and prospects of rehabilitation.
With two possible exceptions, I have referred to those considerations. In relation to other offences to be taken into account, the prosecution submitted that the offence of possessing a controlled drug, methamphetamine, was a significant matter. I agree with that submission. The offender possessed about nine grams of the substance, which is significantly more than the trafficable quantity of two grams. The prosecution conceded that the drug was possessed for personal use. Nevertheless, the quantity was significant and attracts the sentencing purpose of general deterrence. In relation to personal deterrence, the prosecution submitted that it is an important sentencing consideration in this case. To my mind, although it has some importance, it is not of high importance. I am not convinced that it demands a sentence of full time imprisonment. On the other hand, I do accept that the offender's prospects of future offending will be diminished if he receives a sentence that is of moderate severity.
As far as rehabilitation is concerned, I accept that the offender has excellent prospects of rehabilitation. Relevantly, he is a man of prior good character; the minor matters recorded on his criminal history are not relevant for present purposes.
It is important that the Court impose a sentence that is an adequate punishment for the crime in question. The maximum available penalty of life imprisonment is a critical sentencing parameter that cannot be ignored, despite the fact that in this case it is accepted that the offender imported the drugs for personal use.
In sentencing the offender I take into account the three months that he has spent in custody. I also recognise the time spent in residential rehabilitation at the Arcadia House Program, and the stringent bail conditions which applied for a period of time, by treating those factors as the equivalent of two months' imprisonment.
Sentence
The offender is convicted.
The starting point for the sentence is three years' imprisonment but I have deducted 25%. The offender is sentenced to imprisonment for two years and one month. The sentence will run from 23 February 2015 to 22 March 2017, and the offender will be released on a recognizance release order after serving 12 months, on 22 February 2016. It is a condition of the recognizance that the offender report to Corrective Services at Eclipse House within two working days of release from custody and submit to the supervision of Corrective Services for as long as they consider necessary.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 8 September 2015 |
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