R v Yeboah
[2022] ACTSC 127
•1 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yeboah |
Citation: | [2022] ACTSC 127 |
Hearing Date: | 29 April 2022 |
DecisionDate: | 1 June 2022 |
Before: | Kennett J |
Decision: | The offender is convicted and sentenced to imprisonment for a period of two years and five months, with a nonparole period of fifteen months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Dealing with the proceeds of crimes – Trafficking in controlled drug other than cannabis being cocaine – Where offender’s role was that of courier – Where offender claims offending related to drug related debt – Where offender has previously committed offence of a similar nature |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 46D, 57, 63, 78 Crimes Act 1900 (ACT) s 114C Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Filippou v The Queen [2015] HCA 29; 256 CLR 47 R v Speechley [2002] NSWCCA 300; 133 A Crim R 430 R v Zdravokic [2015] ACTSC 393 |
Parties: | The Queen ( Crown) David Achanfuo Yeboah ( Offender) |
Representation: | Counsel C Muthurajah ( Crown) S McLaughlin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 296 of 2020 SCC 297 of 2020 |
KENNETT J:
Introduction
The offender, David Achanfuo Yeboah, pleaded guilty to two offences for which he is to be sentenced:
(a)trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Count 1); and
(b)dealing with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT) (Count 2).
The maximum penalty for Count 1 is 10 years’ imprisonment, a fine of $160,000, or both. The maximum penalty for Count 2 is two years’ imprisonment, a fine of $32,000, or both.
Pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I am asked to take into account an additional offence (possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT)) when imposing the sentence on Count 1. The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000, or both.
Facts
The facts below are a summary of the agreed statement of facts before the Court.
On 14 August 2020, police obtained search warrants in respect of a Holden Cascada vehicle and the residence of the offender’s partner.
That day, at 2:26PM, the offender and his partner drove from Canberra to Sydney in the Holden Cascada. At around 9:00PM, on their return to Canberra, police intercepted and stopped the vehicle.
A police officer asked the offender if he “had anything on him”. Among other things, the offender handed the police officer a spring-loaded “flick” knife (additional offence).
On searching the vehicle, police located the following items:
(a)a handbag belonging to the offender’s partner, containing cards in the offender’s name and a purse containing $3,010;
(b)a black Samsung mobile phone; and
(c)a black bag.
Inside the black bag was a white plastic shopping bag with two smaller plastic bags containing white powder. Forensic analysis later showed that the white powder was 270.203 grams of cocaine (Count 1) at approximately 55 per cent purity.
At about 11:00PM, police accompanied the offender’s partner to her residence to execute the search warrant. They located a black Gucci bag that contained a digital set of scales with cocaine residue and a clip seal bag containing 0.376 grams of cocaine.
Both the offender and his partner participated in records of conversation/interview with police. The offender also participated in a forensic procedure.
The offender told police the following.
(a)He had travelled with his partner to Sydney to visit her parents.
(b)There was cocaine in the car.
(c)Earlier that day, he had driven a friend to an address in Canberra. After attending the address, the friend returned to the vehicle with a number of bags. These contained ice, cocaine, and possibly heroin or MDMA. He considered that the friend was selling drugs.
(d)The friend gave him $1,500, which he then gave to his partner (Count 2). He believed that this money was “probably dirty”. The friend owed him $2,000 in respect of a loan.
(e)After dropping the friend off, he noticed that the friend had left a bag in the vehicle.
(f)When in Sydney, he met with a man in Liverpool. He delivered the man approximately $8,000–$9,000 that he owed him.
(g)He knew that the Gucci bag contained digital scales, but he did not admit to owning the cocaine inside or knowing about the cocaine residue on the scales.
The offender’s partner told police the following.
(a)She travelled with the offender to Sydney as the offender needed to see a friend.
(b)They travelled to a house in the vicinity of Bonnyrigg. The offender went inside for approximately 20–30 minutes. She stayed inside the car.
(c)The only other location they visited in Sydney was a shopping centre.
(d)The offender has two mobile phones.
Objective seriousness
Count 1
The salient features when assessing the objective seriousness of drug trafficking offences are discussed in Bui v The Queen [2015] ACTCA 5 (Bui) at [41] and R v Zdravokic [2015] ACTSC 393 at [24]. These are as follows.
(a)The role of the accused. Those whose role in the operation is at a higher level of the hierarchy are more culpable.
(b)The quantity of the drug. While not of chief importance, it is a relevant sentencing factor because it provides information about the harm flowing from distribution.
(c)The motivation for the offence. Pursuit of profit is more objectively serious than sale to sustain a personal drug addiction.
The offender has pleaded guilty to Count 1 on the basis that he was trafficking by transporting the drug with the belief that someone else intended to sell the drug. He was, effectively, a courier not otherwise involved in the operation; that is, he did not stand to gain from it except by whatever consideration he received for his services as a courier. The method of transportation was not sophisticated. The drugs were transported in a bag located on the back seat of a vehicle. While less objectively serious than engaging in both transport and sale, and despite the lack of sophistication in the transport method, the offender’s conduct still formed an important part of the drug trafficking operation. Transport, particularly of a large amount of an illicit drug, is an integral part of an illegal drug operation. Transport by a courier also shields those at a higher level in the hierarchy from some of the risk of detection, thereby sustaining the operation in the longer term.
The quantity of cocaine involved is substantial. 270 grams is approximately 45 times the minimum trafficable quantity: See Criminal Code Regulations 2005 (ACT) sch 1. If sold, it had an approximate value between $42,460 and $104,027. It was submitted on behalf of the offender that, although the quantity was significant, it was far below the quantity required for the more serious offence of trafficking a commercial quantity: Criminal Code 2002 (ACT) s 603(3). I take this to be a submission that the factor of weight of the drug should be assessed on a continuum by reference to the quantities required to make out the other offences created by s 603. I do not find this submission to be of assistance. Section 603(3) is a separate offence that carries with it a different maximum penalty (cf R v Pearce (No 2) [2022] ACTSC 71, [15]).
Two Pre-sentence Reports are before me, one dated 19 August 2021 (PSR1) and the other dated 20 April 2022 (PSR2). The offender told the authors of both reports that his motivation for the offending was to partially repay a drug related debt incurred in 2013. Antisocial criminal peers, to whom he owed the debt, instructed him to transport the cocaine from Sydney to Canberra to partially pay off the debt. The offender also said that these persons made threats to him and his family, which made the offender feel compelled to accede to their request. However, he did not go into evidence and submit himself to cross examination on this explanation.
The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64], [66]. Although the rules of evidence do not apply in this proceeding (Evidence Act 2011 (ACT), s 4(2)), I have reservations about accepting at face statements made to the author of the PSR, untested in cross-examination.
In this case, the authors of both PSR1 and PSR2 had reservations about the veracity of what the offender told them because he had provided ACT Corrective Services with a letter, purporting to be from a medical practice known as Canberra Eye Surgeons, which is fairly clearly not genuine. The medical practice exists but enquiries made during the preparation of PSR1 revealed that the offender was not a patient of that practice and it did not provide the letter. Further, although the letter appears to draw on some medical knowledge, almost every sentence in it is ungrammatical, and it is very difficult to accept that it was written by a medical specialist. The letter purported to confirm that the offender suffers from a serious and incurable eye condition. I was informed from the bar table (and the Crown does not dispute this) that the offender’s solicitors are in possession of documents indicating that he does in fact suffer from this condition. However, the fact does remain that the offender was prepared to submit a bogus document for the purposes of his Pre-Sentence Report and thereby undermine the utility of that process. This makes it all the more difficult for me to rely on the truthfulness of statements that he made to the authors of the reports.
For these reasons, although it is not implausible that persons involved in a drug trafficking operation regard the offender as owing them a “debt” (given his conviction for a drug trafficking offence committed in early 2014), and also not implausible that those persons might put pressure on the offender to perform services for them, I do not regard it as proved on the balance of probabilities that his motivation for committing the offence was as he described it to the authors of the pre-sentence reports. On the other hand, the Crown has not attempted to prove the existence of any different motivation. In these circumstances, the proper approach is to proceed on the basis that it is not known whether the offender was performing a courier service in part payment of a drug-related “debt”: Filippou at [64], [70]. Nor is it known whether, assuming such a “debt” did exist, it was open to the offender to repay it in some way that did not involve further offending (eg, by a payment of money). It is common ground, however, that the offending was not motivated by an urgent need for money to support a personal drug addiction.
Bui (above) referred to an offence motivated by “the purpose of profit” being a very serious matter. The cases in support of that proposition in Bui (R v Speechley [2002] NSWCCA 300; 133 A Crim R 430, [20] and R v Day (1998) A Crim R 275, 277) drew a distinction between an offence motivated by “greed” and one committed in order to fund the offender’s own addiction. A trafficking offence committed in order to pay off a debt is, without more, in the former category, as one would assume that the debt could be paid off in some way that did not involve offending (such as by a payment of money). The motivation is fundamentally financial. Thus, it would not have assisted the offender to prove that he was acting as a courier in part payment of a debt. The situation would be more complicated if he had proved that the so-called “debt” was not one that could be repaid in the ordinary way, and he had been induced to act as a courier by threats of harm to him or his family. Then, it could be argued that the motivation for the offence was not financial but based on fear, and that that pointed to a lower level of seriousness. On the other hand, there is some difficulty in the suggestion that the Court should regard criminal behaviour as less serious because it has been procured by pressure, exerted by actors in a criminal enterprise, and arising out of earlier criminal behaviour. That would sit uneasily, at least, with the importance of specific and general deterrence in the sentencing process. I prefer to leave the resolution of that question for a case where relevant facts have been proved and the question clearly arises.
Based on the above salient factors, I consider that the offender’s conduct falls somewhere in the mid-range of objective seriousness for this offence.
Count 2
The salient features that I consider to be relevant in assessing the objective seriousness of the offence of dealing with the proceeds of crime are (ee R v Pearce (No 2) [2022] ACTSC 71):
(a) the purpose of the dealing;
(b) the duration of the conduct; and
(c) the nature and value of the proceeds.
Here, the offender’s conduct involved the possession of money. The offender conceded that he believed the money was “dirty”, in that it represented proceeds from the sale of illicit drugs contrary to law. The amount was not significant ($1,500) and it was an isolated incident. The objective seriousness of this offence is low.
Additional offence
The principles for taking into account an additional offence pursuant to s 57 of the Sentencing Act are addressed in R v Campbell [2010] ACTCA 20 at [46]–[50]. The offender is not being sentenced for this offence. Rather, I am to take the commission of the offence into account in the same way as other matters are taken into account for the purpose of sentencing.
Having regard the range of prohibited weapons that are covered by the offence and the offender’s relationship to the weapon (see R v Cichacz [2022] ACTSC 28), the objective seriousness of this offence lies in the mid-range. It is certainly less serious that possession of a bomb, missile, flame thrower or grenade. However, it is more serious than possession of a baton. The weapon was found on the offender’s person during travel, which is more serious than it being located in a private residence. The offence was committed by possession of the weapon, rather than use which is more objectively serious.
Subjective circumstances
The subjective circumstances of the offender are mainly drawn from PSR2, and to that extent are based on his self-reporting. With the exception of his drug use, these matters appear uncontroversial.
The offender was born in Ghana. He is one of five children born of his parents’ union. His family relocated to Canada when he was a toddler, and then to Canberra when he was approximately 12 years of age. He is now aged 43.
He reported a difficult upbringing. His father perpetrated violence against all members of his immediate family. This culminated in the separation of his parents when he was approximately 16 years of age, after which he lived with his mother and siblings. He maintains positive relationships with his siblings and mother.
He has been in a relationship with his current partner, with whom he lives in private accommodation, for approximately three years. He has five children to previous partners. Three of the children reside in Queensland. He maintains telephone contact with them. The other two reside in Canberra. The offender shares parental responsibility for these children with his ex-partner.
The offender completed Year 12 through the Canberra Institute of Technology. He reports being self-employed as a painter and decorator. The offender’s legal representative submitted, and I accept, that the COVID-19 pandemic caused a significant downturn in business.
He has ambitions to pursue a career in real-estate. He considers himself financially stable but claims that he is still in the process of repaying the outstanding drug related debt incurred in 2013.
He commenced smoking cannabis in his early twenties. This use has continued throughout his adult life. In August 2021, he reported smoking cannabis once per week. In April 2022, he reported continuing to smoke cannabis, but at a reduced level. Between 2015 and March 2021, he said that he occasionally used cocaine. The authors of PSR2 had significant reservations about this account. They noted the offender’s statement that he had a drug debt dating back to 2013 and considered that this indicated a more problematic history of illicit substance use than he had disclosed. They expressed the view that the offender had minimised his history of drug use while being interviewed. I will return to this point later.
The offender has an extensive criminal history. I accept the submission on behalf of the offender that much of the history is minor and does not significantly affect the sentencing exercise. For example, between 1997 and 2010, the offender committed a range of driving offences that were largely punishable by fine.
However, there are more serious offences of a similar type to the present offending that are material considerations. Most significantly, he was convicted of trafficking in a commercial quantity of cannabis and forcible confinement. In each case, he was sentenced to full-time imprisonment: see R v Le Clair; R v Yeboah [2016] ACTSC 126; Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19.
The similar offending is relevant for several reasons:
(a) First, it shows that the offending cannot be considered an aberration; the offender has manifested an ongoing attitude of disobedience with respect to the laws concerning trafficking of illicit drugs.
(b) Secondly, it demonstrates that, given this attitude, the leniency that can be afforded to the offender is minimal.
(c) Thirdly, it shows a need for personal deterrence in respect of the offender;.
(d) Finally, it supports a conclusion that, while the offender’s prospects for rehabilitation are not hopeless, the Court should be guarded about those prospects.
Tendered on behalf of the offender was a letter from his current partner. In her opinion the offender has demonstrated personal growth following the offending. She considers that the offender is humble and caring and has significant involvement in the lives of his children.
Other sentencing considerations
Plea of guilty
On 20 May 2021, the offender pleaded guilty to the charges before the Court. At that time the matter had been committed to the Supreme Court for trial but was yet to be allocated a trial date. The plea was indicated at a criminal case conference earlier in the month. There is no indication that the guilty plea resulted from negotiations about the nature of the charges. The offences to which the offender pleaded guilty were those set out in the indictment dated 25 February 2021. Pursuant to s 35 of the Sentencing Act, I will allow a discount of 15 per cent on the sentences that I would have otherwise imposed.
Time in custody
The offender has spent two days in custody attributable to the offences before the Court. Pursuant to s 63(2) of the Sentencing Act, I will direct that the sentence be backdated to take this period of pre-sentence custody into account.
Comparable cases
The Crown provided a table of comparable cases relating to trafficking in a drug other than cannabis (R v Mackinder [2021] ACTSC 176 (Mackinder), R v French [2021] ACTSC 133, R v Harmouche [2020] ACTSC 194, R v McCallum [2020] ACTSC 15, R v Clark [2019] ACTSC 147, R v Nchucki (No 2) [2017] ACTSC 387, R v Nikiro [2015] ACTSC 231, R v O’Brien [2014] ACTSC 156). The purpose of having regard to these cases is not to ensure strict numerical equivalence with similar sentences in the jurisdiction, but consistency in application of applicable principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.
The comparative cases reveal that a sentence of imprisonment is ordinarily appropriate, but the length and method of serving such sentence differs, and includes partially or wholly suspended sentences, intensive corrections orders or full-time imprisonment. Sentences have ranged from 12 months’ imprisonment to six years’ imprisonment. That range reflects the wide variety of circumstances considered in the cases.
The most relevant of the comparable cases is Mackinder. The offender in that case travelled from Canberra to Sydney, collected a package of cocaine weighing 503 grams at 77 per cent purity, and returned to Canberra. The offender was a drug user. Burns J accepted that the role of the offender was as courier, and that the offending was conducted to reduce drug related debt owed to the offender’s supplier. Burns J found that the offender was a prosocial person who became addicted to cocaine in the context of a marriage breakdown at that, provided drug use was addressed, he had good prospects of rehabilitation. Burns J imposed a sentence of two years and six months’ imprisonment, (discounted from three years’ imprisonment) to be served by intensive corrections order.
Consideration
The Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant.
In respect of sentencing purposes, general deterrence is, as with any matter involving drug trafficking, an important sentencing consideration.
Other relevant sentencing considerations are denunciation of the conduct of the offender, protection of the community and adequate punishment for the offences.
Careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Having regard to the factors set out above, I am satisfied that no penalty other than a sentence of imprisonment is appropriate. This was not in contest between the parties.
An important question is how that term of imprisonment should be served. The Crown submission was that full-time detention was appropriate. The offender’s submission was that the sentence could be served by way of intensive corrections order.
As Burns J observed in R v Srna [2018] ACTSC 337 at [13], the imposition of an intensive corrections order involves a degree of leniency because it does not require full-time detention. It is, however, not a lenient sentence; it requires strict adherence to a number of onerous conditions and breach can result in a period of full-time detention.
Before making an intensive correction order, I am required by s 78(2) of the Sentencing Act to consider the intensive correction assessment, which in this case forms part of PSR2. The authors of that report assessed the offender as not suitable for an intensive correction order on the basis of drug use. I am not obliged to agree with that assessment, and note that it was a cautious assessment based largely on the reservations that the authors had about the offender’s account of his level of drug use. However, a degree of caution is appropriate and I have given the assessment considerable weight.
I am also required, by s 78(4), to consider any of the indicators of unsuitability mentioned in the table in s 46D of the Sentencing Act. The only indicator that is mentioned in the assessment is drug use, as noted in the previous paragraph. However, that does not preclude me from considering for myself whether any of the other indications of unsuitability are present, and I consider it appropriate to do so. One of those indications of unsuitability is “serious criminal record or substantial non-compliance with previous court orders”. The offender can properly be described as having a serious criminal record. While many of the matters for which he has been convicted are relatively minor, the offences of forcible confinement and trafficking in cannabis mentioned above are clearly serious. They suggest a long-standing, if intermittent, involvement in criminal activity which casts significant further doubt on the offender’s suitability for an intensive correction order. It is also noted in PSR2 that he offended in 2019 while on parole. That particular offence was minor, but it suggests some difficulty in complying completely with requirements imposed on him by the authorities. In that connection, it is also of some concern that the offender was convicted in 2016 of contravening a protection order.
Given the offender’s criminal antecedents, the objective seriousness of the offending and the significant reservations that I share with the authors of PSR2 about his drug use, I am not satisfied that anything other than a period of full-time detention will adequately address the relevant sentencing purposes.
Sentence
The orders of the Court are:
(1)On Count 1, the offender is convicted and sentenced to imprisonment for a period of two years and four months (reduced from two years and nine months), from 30 May 2022 to 29 September 2024.
(2)On Count 2, the offender is convicted and sentenced to imprisonment for a period of two months (reduced from two months and ten days), from 30 August 2024 to 29 October 2024.
(3)I fix a non-parole period of fifteen months, from 30 May 2022 to 29 August 2023.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
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