R v Visser
[2016] ACTSC 261
•7 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Visser |
Citation: | [2016] ACTSC 261 |
Hearing Dates: | 21 July; 7 September 2016 |
DecisionDate: | 7 September 2016 |
Before: | Murrell CJ |
Decision: | For the trafficking offences, sentenced to a 16-month intensive correction order subject to conditions, and for the possession offences, fined $1,200. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdicts in judge alone trial – drug offences – traffic in controlled drug other than cannabis – traffic in trafficable quantity of cannabis – possession of oxycodone – possession of declared substance – intensive correction order |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) (Criminal Code) ss 603(7), 603(5) Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 36 |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571 Bui v The Queen [2015] ACTCA 5 R v Visser [2016] ACTSC 40 |
Parties: | The Queen (Crown) Wayne Visser (Offender) |
Representation: | Counsel Ms E Beljic (Crown) Mr J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Number(s): | SCC 125 of 2015; SCC 127 of 2015 |
MURRELL CJ:
Background
After a judge alone trial on 18 March 2016, the offender was found guilty of three offences, each of which occurred on 29 August 2014:
(a)Trafficking in a controlled drug other cannabis, i.e. methylamphetamine (total quantity 10.291 grams), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 10 years' imprisonment).
(b)Trafficking in a trafficable quantity of cannabis (total quantity 898 grams), contrary to s 603(5) of the Criminal Code (maximum penalty 10 years' imprisonment).
(c)Possession of oxycodone, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty two years' imprisonment).
The offender is also to be sentenced on the transferred offence of possessing a declared substance (anabolic steroids), contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) (maximum penalty two years' imprisonment). On 28 January 2015, in the Magistrates Court, the offender pleaded guilty to that offence. He should receive a discount in recognition of the early plea of guilty.
In relation to each of the trafficking offences, the prosecution relied upon possession of a quantity of the substance that exceeded the trafficable quantity. Possession of a quantity in excess of the trafficable quantity gives rise to a presumption of intention to sell (trafficking). The trafficable quantity for methylamphetamine is six grams. The commercial quantity is three kilograms. The trafficable quantity for cannabis is 300 grams. The commercial quantity is 30 kilograms.
Facts
The facts upon which the offender was found to be guilty are set out in my decision: R v Visser [2016] ACTSC 40.
In brief, at 9.28 am on 29 August 2014 the offender walked towards his Citroen van carrying a black satchel. He was approached by police, who searched the offender, his premises and the van. The van was used by the offender in his carpet cleaning business.
On searching the offender, police located $12,200. The sum of $2,200 was in his pockets, divided into two bundles. The sum of $10,000 (200 x $50 notes) was in the offender's satchel, separated into bundles. Possession of this money was the subject of a charge that was ultimately not pursued.
In the kitchen fridge door were two 10-mil vials of anabolic steroids (testosterone, total weight 8.631 grams, and boldenone undecylenate, total weight 8.654 grams) and three one-mil injections of steroids (testosterone, total weight 3.502 grams). In a record of interview, the offender said that he intended to use the substances himself.
In the dashboard compartment of the van, police found blister packs of oxycodone (54 tablets, total weight 8.433 grams, being .81 grams of pure oxycodone), that were apparently for personal use by someone. There were also 75 blue heart-shaped anabolic steroid tablets (9.963 grams of methandienone). The offender said that these were a “weight-gainer” that he had obtained from a mate at the gym.
In the driver's door compartment, police found 10.291 grams of methylamphetamine (78.1% pure) that was contained in three clip-seal bags, which were in a larger plastic bag that was, itself, within a brown paper bag.
Under the front passenger seat, police found 898 grams (just short of two pounds) of cannabis in two similar plastic bags, which were contained within one larger vacuum‑sealed bag.
Objective seriousness
Trafficking offences (methylamphetamine and cannabis)
Both offences were committed on the same day and were related in that both substances were located in the offender's vehicle. In each case, the quantity of the substance was at the lower end of the range. The quantity of methylamphetamine was 10.291 grams, which is to be compared to the range of six grams to three kilograms. The quantity of cannabis was 898 grams, which is to be considered in the context of a range of 300 grams to 30 kilograms. The cannabis was packaged in a way that was consistent with it either having been bought in substantial one pound quantities, or having been packaged for sale by the offender in substantial quantities.
The presence of the money casts some light on the reason for the offender's possession of the drugs. One cannot say whether the money was the proceeds of previous sales of drugs, or whether it was to be utilised in relation to the selling of the drugs that were found on the day in question. In any event, the money was packaged in a way that was consistent with most of the money being used in connection with a drug transaction.
When assessing the objective seriousness of trafficking matters, the amount of drug in question is always relevant, but not as relevant as what an offender does in connection with the drug. In this case, the amounts of methylamphetamine and cannabis were towards the lower end of the range.
The offender's role is unclear. It is unclear whether he was selling at street level (which is possible, given the overall quantity), or at a higher level (which is also possible, given the packaging of the cannabis). In any event, I infer that his involvement in drug trafficking was not insignificant.
The value of the drugs is not known. There was no evidence about the value of the drugs found in the offender's possession.
On several occasions, the offender disavowed a substance abuse problem. The only available inference is that the drugs were to be sold for profit. This means that, despite the relatively low quantity of drugs, the trafficking offences are of not insignificant seriousness.
Possession offences (oxycodone and anabolic steroids)
In each case, the offence was of some objective seriousness. The quantities were not small quantities. However, in neither case is the offence of a high‑level of objective seriousness. In each case, the maximum available penalty is a two-year sentence of imprisonment.
Subjective circumstances
The offender is 25 years old. He was 24 years old at the date of the offences.
As an adult, he has had three convictions for driving while disqualified. The last offence occurred in 2011. Suspended sentences were imposed in 2010 and 2012, and a three-month periodic detention order was imposed in 2010. There is also a conviction for damaging property in 2014, which resulted in a fine.
The offender says that past involvement in criminal activity was the result of impulsive conduct and an immature attitude. The subject offences are his first venture into serious criminality.
At times, when subject to supervision by ACT Corrective Services, the offender has failed to comply with directions. However, in 2012–13 he satisfactorily completed a 12‑month good behaviour order.
The offender was born in Canberra. He is an Aboriginal man who strongly identifies with his cultural heritage.
He had a difficult upbringing. He witnessed violence towards his mother and substance abuse within his family. His parents separated when he was very young and his mother re-partnered on several occasions. The offender's first stepfather was violent and abused substances, bringing the family to the attention of child protection services when the offender was about three years old. A subsequent partner was also violent. For a period after the offender's natural father was released from prison, the offender resided with him in Sydney, but the offender's natural father was also violent towards the offender and, when the offender was 13 years old, he returned to live with his mother in Canberra.
Currently, the offender enjoys a close relationship with his mother, with whom he continues to reside. Also resident in the house is the offender's younger sister, for whom the offender assists to care. The offender provides support to his mother, who suffers from an anxiety disorder as a result of past domestic violence. He helps his mother around the house and assists her financially.
When the offender was four years old, he was diagnosed with Attentive Deficit Hyperactivity disorder (ADHD). In 2011, a general practitioner referred him to a psychiatrist to investigate depression, but intervention was not pursued. In 2012, the Galambany Circle Sentencing Court obtained a psychiatric assessment of the offender from Dr Kasinathan, who diagnosed obsessive compulsive personality traits and narcissistic personality traits, but otherwise diagnosed no mental illness or disorder. It was suggested that the offender should engage in an anger management course, and recently the offender has done so.
The offender denies a substance abuse problem and says that he has not used illicit drugs for some years, nor has he used steroids for at least a couple of years. He says that he is an occasional and a modest social drinker.
The offender enjoyed school and completed Year 10. After leaving school, he worked as a cement renderer. He then undertook a Certificate III course in administration at the Canberra Institute of Technology (CIT). For a short period, he worked as a public servant, and he enjoyed that work very much.
As at the date of the offences, he was operating a carpet cleaning business, which he sold in January of 2015. He then went to Sydney, where he worked as a truck driver and a concreter. In January 2016, he returned to Canberra and worked as a part‑time concreter for several months, before commencing his current full‑time work as a formwork labourer. Generally, he works six days a week. His employer describes him as conscientious, courteous and respectful. Other evidence attests to him being well dressed and well presented.
Recently, the offender has completed a Certificate III in community services at CIT. His teacher provided the Court with a letter of support stating that the offender had worked hard to complete the certificate while also working full‑time and attending anger management classes. The teacher described him as respectful, intelligent, hard‑working and a natural leader. She said that she had observed a growing maturity during the period that the offender studied at CIT. She said that the offender has come to a "fork in the road” and now has a positive vision for his future.
The offender informed the Court that he wanted to help the Indigenous community and to be a role model for younger people. He is interested in pursuing further education and undertaking youth work, at least on a voluntary basis.
The offender's mother gave evidence that, over the last two years, she has noticed a big change in the offender. In particular, he is able to control his anger and he is enjoying work, both because of the work itself and because it keeps him fit. The offender's uncle also gave evidence. He holds a responsible position and has a leadership role in the Indigenous community. He has observed that the offender has gained self-respect and maturity through full‑time work. He provides guidance to the offender and is a good male role model.
Caselaw
The Court was referred to a number of cases, including: R v Lee [2015] ACTSC 415; R v Hoang [2015] ACTSC 138; R v Hasani [2015] ACTSC 161; Bugmy v The Queen (2013) 249 CLR 571; and Bui v The Queen [2015] ACTCA 5. The Court was also referred to the ACT Sentencing Database statistics for offences of this type.
The number of matters in the Database is quite small. It is probably not statistically significant. But it does provide a general indication of the sentencing pattern in this jurisdiction for trafficking matters. The fact that a pattern exists does not necessarily mean that it is the right pattern, but it is a “yardstick” against which the Court can assess the penalty that is contemplated.
Sentencing considerations
The Court is mindful of the sentencing purposes in s 7 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act). For any drug trafficking matter, the purposes of general deterrence, punishment, accountability and denunciation are usually important, particularly in cases where the offence involves sale for profit, as is the case here.
The offender is 25 years old, but I categorise him as a young offender. He is still maturing. Therefore, rehabilitation looms large as a sentencing purpose, particularly because the offender does seem to be at a critical point in his life. He obviously has considerable personal resources. He is intelligent and motivated. He has a reasonable education level and he is interested in pursuing further education. It is important to capitalise on the fact that the offender is motivated to change and seems to have the capacity to do so.
The Court must also have regard to sentencing considerations in s 33 of the Sentencing Act insofar as they are relevant and known to the Court. I have referred to the relevant factors above.
Sentence
At proceedings on 21 July 2016, I convicted the offender of the possession offences and imposed fines of $700 for the oxycodone matter and $500 for the anabolic steroid matter (total of $1,200), with two months to pay. For the trafficking offences, I indicated that I would impose nine months’ imprisonment for trafficking in cannabis and 12 months’ imprisonment for trafficking in methylamphetamine, concurrent by five months; an effective sentence of 16 months’ imprisonment
On that date, I referred the offender for assessment for an intensive correction order.
ACT Corrective Services has assessed the offender as suitable for an intensive correction order.
For trafficking in cannabis, I sentence the offender to nine months’ imprisonment from today, 7 September 2016 to 6 June 2017.
For trafficking in a controlled drug other cannabis (methylamphetamine), I sentence the offender to 12 months’ imprisonment from 7 January 2017 to 6 January 2018.
I am satisfied of the matters referred to in ss 11(3) and 77 of the Sentencing Act.
Pursuant to s 11 of the Sentencing Act, I make an intensive correction order for a period of 16 months. The order is to include an additional condition that the offender report to ACT Corrective Services by 4:00 pm today and accept all home and field visits as directed.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 15 September 2016 |
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