Robert James Polosak v Joshua Asfour
[2022] ACTMC 14
•21 June 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Robert James Polosak v Joshua Asfour |
Citation: | [2022] ACTMC 14 |
Hearing Date(s): | 2 June 2022 |
DecisionDate: | 21 June 2022 |
Before: | Chief Magistrate Walker |
Decision: | See [30], [35] – [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Offending occurred during existing intensive corrections order |
Legislation Cited: | Crimes Act 1900 (ACT) s 375(15)(a) Criminal Code 2002 (ACT) s 603(7) Crimes (Sentence Administration) Act 2005 (ACT) (‘Sentence Administration Act’) s 7, s 33, s 65, s 79 Firearms Act 1996 (ACT) s 42(1)(a)(iii) |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 R v ER [2022] ACTSC 112 R v Figura (No 3) [2021] ACTSC 162 R v Hoang [2020] ACTSC 262 R v Pahl [2022] ACTSC 113 R v XXL [2022] ACTSC 24 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Robert Polosak (Informant) Joshua Asfour (Defendant) |
Representation: | Solicitors E Wren (ACT Director of Public Prosecutions) T Sharman (Tim Sharman Solicitors) |
File Number(s): | CC 14481 of 2020 CC 1928 of 2022 CC 1929 of 2022 |
CHIEF MAGISTRATE WALKER:
The offender is charged with one count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to section 603 (7) of the Criminal Code 2002 (ACT). This offence on conviction carries up to 10 years imprisonment, a fine of up to 1,000 penalty units, or a combination of both. He is further charged with possessing a prohibited firearm contrary to section 42 (1)(a)(iii) of the Firearms Act 1996 (ACT), namely a gel blaster, whilst not authorised by a license, permit or otherwise, an offence which also carries up to 10 years imprisonment. In respect to each of these offences, the defendant consented to the jurisdiction of this court, limiting the maximum penalty of imprisonment which can be imposed to five years imprisonment or a fine of up to $15,000 pursuant to s375(15)(a) of the Crimes Act 1900 (ACT).
The defendant is also charged with possessing a declared substance, being controlled or prescription only medicines, namely clonazepam, diazepam, buprenorphine and fentanyl, without authorisation to possess the substances. This offence attracts a maximum penalty of two years imprisonment or a fine of up to 200 penalty units, or a combination of both.
The factual circumstances are uncomplicated. At about 4 a.m. on 18 December 2020, police executed a search warrant at 30/1 Roustabout Street, Lawson where the offender was living.
During the search of his bedroom approximately 35g of cocaine was found inside a Louis Vuitton bag. It has been assessed by the ACT Government Analytical Laboratory as being 28.8% pure, consistent with the offender’s admission at the scene that it would be over 28% pure. Scales were also found in the bag. Clip seal bags with white residue were found in a bedside table drawer. On the floor, a small grinder containing white residue and a plastic bag containing a common cocaine cutting agent, “inositol”, were found.
The following items were also found in the offender’s possession:
(a)behind the mirror in his room, also admitted in advance, a gel blaster replica of an AK-47 automatic rifle;
(b)inside a laundry bag in the bedroom, seven bottles, each containing 50 5mg diazepam tablets;
(c)inside a black box, smaller boxes containing five 4.2mg fentanyl patches and two 20mg buprenorphine patches;
(d)inside a gym bag in the room, a bottle of containing 74 2mg clonazepam tablets.
The offender’s explanation for possessing the controlled drug and declared substances was that he owed money to those who owned drugs which were seized from him, and for which he was charged and sentenced, in 2020. The offender was within the first half of a 15-month Intensive Corrections Order at the time of this offending.
In considering the seriousness of the trafficking offence, I have regard to the guidance in the decisions of Bui v The Queen [2015] ACTCA 5; Zdravkovic v The Queen [2016] ACTCA 53, R v Hoang [2020] ACTSC 262, R v ER [2022] ACTSC 112 and, R v Pahl [2022] ACTSC 113.
In terms of the role of the offender, that is where he sits in the hierarchy of distribution, the prosecution submit that he is a street level dealer, so fairly low in the supply chain but nonetheless a vital link. The presence of a grinder and cutting agent is evidence of active preparation of the drug for sale.
As to the quantity and purity of the cocaine possessed by the offender, the amount is not great, nonetheless it is approximately six times the trafficable quantity. As to the purity of the drug, he knew it to be above 28%, which was confirmed on testing; it was a lower quality product. The street value of the cocaine was between $7,000 to $14,000 depending on how it was sold, a small but significant contribution to local supply.
An offender’s motive for their offending is relevant. Where the motive is pure profit, the seriousness of the offending tends to be greater. Where it is the result of a need to service a drug dependency, or meet basic living needs, that might be seen as a less serious example of the offence. This situation, accepting the offender’s explanation (as to which there is no contrary evidence), is somewhat outside the norm but not unheard of. The offender submits that he was trafficking the drugs to raise money to meet a debt that he incurred when drugs that he was holding for someone else with no intent to sell were seized, leading to his previous conviction and the existing intensive corrections orders.
Continuing to engage in illegal activity in the absence of direct evidence of intimidation or threat of harm merely serves to perpetuate this type of offending and consequent harm to the community. To do so whilst subject to conditional liberty for similar offending smacks of contumacious disregard. The offender also submitted that when apprehended in respect to current offences, he was able to meet his $120,000 debt legitimately by offloading property and “working harder” and coming to some form of “resolution” that the full amount was not required to be paid. There is no suggestion that this option was not available to him in the first place. In these circumstances, the seriousness of the offending is more akin to profit than desperation.
As to the offence of possession of a controlled substance, I note that four such substances are particularised in the charge. It is therefore a rolled-up charge. I have had regard to the significant quantity of substance reflected in it, especially in terms of the number of pills, and the purpose of possession apparently being for sale. Whilst the offender submits through his lawyer, that he was just holding these things for someone else, I have reservations about that submission in the absence of direct evidence from the offender, particularly noting his previous claimed experience of holding drugs on behalf of someone else, the reason given for possession of the drugs when last sentenced. That would suggest that he was well aware that such conduct is criminalised.
As to possession of the prohibited firearm, it was urged upon me that a gel blaster is effectively an “adult toy”, unlikely to be used in a nefarious way. The photograph of this object discloses a frightening looking thing which to an untrained eye looks realistic. The fact that it is incapable of discharging bullets is a mitigating factor, however, great harm lies in the appearance of the item and the fear it could cause, rendering it capable of being used for nefarious purposes, the very reason for criminalising the possession of such items. Whilst the offender disavows ownership of the item, it was stored in his bedroom, to his knowledge, with no innocent explanation for its possible intended use put before the court. It was not in fact used in any way to aggravate the possession. Nonetheless this is far from a trivial offence.
Subjective factors
The offender is a 20-year-old man recently married. He appears to have a supportive and largely prosocial family.
He is educated to year 12 level with a Certificate IV in building. He operates a business as a tiler and renovator. He has provided a number of letters of reference to the court referring to his skills as a tradesman, from those who have worked with him: Michael Rodden, Mark Nieuwenhuys, Luke Rezo, Pat Barbaro, and those for whom he has done work: Helen Hill and Sophie Maclean.
There are no apparent mental or physical health factors contributing to his criminal offending. He barely drinks and there is no evidence of drug dependency.
Apart from recent like offending, his criminal history consists of a small number of driver licensing related offences and a common assault matter in NSW. However, on 19 June 2020 he was convicted of trafficking in a controlled drug and sentenced to a 15-month intensive corrections order. He was also fined for possessing a prohibited firearm with intent and a further common assault.
Ms Kim Smith, Community Corrections Officer, prepared a report as to the offender’s suitability for an intensive corrections order when he was sentenced for similar offending in 2020. She was his supervising officer when an intensive corrections order was imposed and prepared a report for these proceedings dated 4 May 2022. She was required for cross-examination by Mr Sharman and prepared a supplementary report dated 2 June 2022. She was cross-examined and was an impressive witness demonstrating a professional and impartial approach.
During her supervision of the offender, he attended regularly for supervision and completed community service as required. However, Ms Smith, became concerned about his accommodation arrangements, in the sense of who he was living with, particularly following these charges being laid and in light of his earlier offending. He claimed to be living alone. His father told her that he had a housemate after which he revealed that he did in fact have an unapproved co-resident living with him whom he said had moved in only a week earlier. He refused to provide documentary evidence of his living arrangements; it transpired that he was not the only person on the lease to the property in which he was living. In March 2021 he moved in with his new wife.
Ms Smith was also worried about the offender’s continuing sporadic drug use during the period of his intensive corrections order. He admitted to using cocaine during the order. He was breached twice for this; and was warned both times by the sentence administration board. It appears he may have tampered with urine samples which were flagged by the laboratory service conducting urinalysis as possibly diluted.
Finally, Ms Smith was concerned about where the offender’s income was coming from in light of his offending history. He was reluctant to provide documentary evidence; the limited evidence he did provide did not support his claim that he had plenty of work with a lot of money at his disposal.
Ms Rachel Dobbie, the offender’s wife, was also called to give evidence at sentencing. They married on 28 February 2021 and moved in together soon afterwards. She said that he is a hard worker and that after he was charged in respect to these offences, together they arrived at a plan to pay off his drug debt from that income. Ms Dobbie attested as to the contents of bank statements for the period 5 January 2021 and 4 May 2022 which were relied upon to show that the offender was operating a business which was, according to Mr Sharman’s submission, “an ongoing concern with work that is being performed and money is going in and out as would be expected”. I have reviewed these documents at length and find it difficult to draw the conclusion invited by the offender.
It was submitted by Mr Sharman on behalf of the offender that the total income for the business from January 2021 through June 2022 was $385,000. The court was directed to those entries highlighted in yellow as evidence of monies received. A quick review of the flagged entries, taken at face value as business income, shows approximately $225,000 received, with a significant downturn after July 2021. It is not clear that the deposits made into the accounts detailed were from clients. I note that Centrelink payments were received in October 2021. There is no clear pattern of purchase of materials or payments to workers (either employees or sub-contractors) which would support the submission that the offender conducts a busy and profitable tiling and renovation business.
Ms Dobbie says that she was aware that the offender was using drugs after their marriage although “not all the time”; that he was not using them as of 2 June 2022 but that she was unaware when he had ceased their use. I note that he provided samples for urinalysis on 26 April and 18 May 2022 in which no drugs were detected.
In terms of her economic reliance upon the offender, Ms Dobbie indicated that in the event he was incarcerated, she would move in with his parents in Yass. She would be unable to maintain the monthly rental of $2925 required by a lease entered into by the offender, somewhat optimistically, on 20 April 2022.
Whilst conceding that the offender was “less than candid with Corrections about, ultimately, things like accommodation, work and the like”, Mr Sharman invites me to conclude that the offender has now moved into a period “of a productive lifestyle in terms of work and commitment to his family”. I am not persuaded that this is so. Mr Sharman points to the offender’s marriage as the point in time in which he rethought his criminal ways. His wife thinks he is now not taking drugs, but she cannot say when he stopped. The financial records provided to the court in support of what is described as a thriving business do not in fact support that conclusion.
I share Ms Smith’s reservations as to the offender’s honesty.
The offender entered a plea of guilty in respect to the charges before the court on the morning of the hearing, over a year after an early plea of not guilty was entered. This did follow some negotiation as to the charges but not a significant reduction in the criminal culpability reflected in those amended charges. There was a reasonably strong prosecution case from the outset, in part based on the offender’s own early admissions to police. Nonetheless there was some small utilitarian benefit in the late plea which attracts a discount of approximately 15 per cent.
I do not consider that the plea reflects genuine remorse for his offending behaviour nor indeed any insight into the harm that this type of conduct causes to the community. I formed this conclusion despite the view expressed by his close friend, Ms Hales, who refers to his remorse. Such remorse as has been demonstrated appears to relate to the defendant’s own unhappy situation as opposed to the impact of his criminal conduct on the community.
This offending occurred during an existing intensive corrections order. I am required by section 65 of the Crimes (Sentence Administration) Act 2005 (‘Sentence Administration Act’) to determine how that breach is to be dealt with as the offender committed further offences against a territory law while subject to the intensive corrections order. The existing order expired in September 2021. Section 79 of the Sentence Administration Act provides that a court may act in relation to anything arising during the term of the order even after it has ended. I have had regard to the decisions of Mossop J in R v Figura (No 3) [2021] ACTSC 162 and R v XXL [2022] ACTSC 24. Section 65(2)(a) of the Sentence Administration Act requires the sentencing court to act “as soon as practicable” after a breach. Whilst it is highly desirable that any breach be dealt with promptly, where establishing that breach is dependent upon recording a finding of guilt, it may be difficult to achieve in as timely a manner as the Act envisages. Having regard to the reasons articulated in similar circumstances to these by his Honour in Figura (No 3) [2021] ACTSC 162 and XXL [2022] ACTSC 24, I conclude:
(a)that there is no remainder of the sentence to be imposed, and
(b)that it is not in the interests of justice to cancel the intensive corrections order.
Whilst His Honour saw fit in those decisions to take the existence of the intensive corrections order into account to reflect presentence custody, that does not arise in this case. The breach will be taken into account in terms of my assessment as to the offenders reduced prospects of rehabilitation and the more limited scope for lenience in sentencing on this occasion.
Having regard to the sentencing objectives in section 7 of the Sentence Administration Act, both specific and general deterrence loom large. Accountability and denunciation are important considerations along with recognition of the harm to the broader community which flows from the uncontrolled trafficking of illicit substances. Rehabilitation is still a factor for the court’s consideration but significantly less so in light of the offender’s squandering of his most recent opportunity.
Having regard to the provisions of section 33 of the Sentence Administration Act, the circumstances of the offending have been addressed above; in short, the offender made a deliberate choice to engage in serious criminal offending despite being given the opportunity to rehabilitate for prior similar offending in the community. Whilst incarceration of the offender will no doubt impact upon his wife, who may be pregnant, I am not satisfied that such impact would be beyond the usual consequences of incarceration of a married person. She is fortunate to have both the moral and practical support of the offender’s family.
Both prosecution and defence accept that a sentence of imprisonment, albeit one of last resort, is the only appropriate sentence in relation to the trafficking offence. The offender submits that it is open to the court to consider a further intensive corrections order, or suspending a sentence of imprisonment, either partially or totally. Ms Smith opines that the offender is not suitable for an intensive corrections order due to his criminal record and non-compliance with the previous intensive corrections order. I agree. A suspension of all or part of any sentence of imprisonment would prioritise rehabilitation over deterrence in a way not warranted in these circumstances.
I record a conviction on all 3 charges.
On charge CC2020/14481, I impose a sentence of imprisonment of 1 year and 5 months (reduced from 1 year and 8 months).
On CC2020/1928, I impose a sentence of 5 months (reduced from 6 months) to be served concurrently with the existing sentence as to 3 months.
On CC2020/1929, I impose a fine of $8,500 reduced from $10,000.
The total period of imprisonment is therefore 1 year and 7 months, commencing today 21 June 2022 and to expire on 20 January 2024.
I set a non-parole period of 12 months, commencing today and to expire on 20 June 2023.
No time is allowed to pay.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker. Associate: A Jones Date: 12 July 2022 |
0
7
4