The Queen v Suto

[2021] QSC 155

[2021] QSC 155

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

BOWSKILL J

Indictment No 76 of 2021

THE QUEEN

V

MICHAEL IVAN SUTO

SENTENCE

18 JUNE 2021

Note:  Due to a technical issue, the audio recording of the proceedings in this matter on 18 June 2021 failed part way through the sentencing hearing.  As a result, the court’s ruling made on the contested fact (commerciality), the prosecutor and defence counsel’s submissions and sentencing remarks were not recorded.  Consequently, I have recorded in this written decision my ruling on the contested fact on the sentencing hearing and my sentencing remarks.   Each of the prosecutor and defence counsel have also agreed to provide a summary of their submissions on penalty, which will be marked as an exhibit.

RULING ON CONTESTED FACTS - COMMERCIALITY

The defendant has been convicted, on his pleas of guilty, of one count of possessing the drug cocaine, in a quantity exceeding 2 grams, and one count of possessing other drugs, alprazolam, methylamphetamine and MDMA.  He is before the court today for sentencing.

The Crown contends that he possessed the cocaine for both personal and commercial use.  The defendant contests that, saying the cocaine was for his personal use only.   He has given evidence to that effect in this sentencing hearing, in his affidavit which is exhibit 4, and has been cross-examined.

Section 132C of the Evidence Act 1977 provides that, if an allegation of fact is not admitted or is challenged, the sentencing judge may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true. For that purpose, the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. For present purposes, it may be accepted that the sentence which would be appropriate for commercial (or partially commercial) possession of cocaine would be more severe than where the possession is only for personal use. Accordingly, I must be satisfied to a fairly high standard that the allegation contended for by the Crown – that the cocaine was possessed for a commercial purpose – was true, before acting on that allegation.

For the following reasons, I am not satisfied of that to the requisite standard.

The offending was discovered by police when they searched the defendant’s home on 9 January 2020.  They found a fairly significant quantity of cocaine, as well as smaller quantities of the other drugs.  The cocaine was found in 10 clip seal bags, seven of which were found in the garage and the other 3 found in the walk-in wardrobe of the defendant’s bedroom.  Of those, nine bags contained varying small amounts of cocaine and the tenth contained 9.171 grams of cocaine, in 18.911 grams of substance.  In total, 11.333 grams of pure cocaine was found, in 23.907 grams of substance.

The MDMA and methylamphetamine were small amounts, found in clip seal bags in the garage; three alprazolam tablets were found in the bathroom drawer.  The Crown accepts these were possessed for personal use.

Also found was about $56,000 cash, in a safe in the house, and another $2,405 found in the garage; containers of white powder, which were labelled glutamine and a homeopathic infant teething powder, which the Crown says were used as cutting agents; a vacuum sealer machine in the kitchen, with a vacuum bag with cocaine residue inside; and a cocaine testing kit.  The Crown’s argument is that having regard to the quantity of cocaine, the cutting agent, cash, vacuum sealer and testing kit found, the court should infer that the defendant possessed the cocaine for a commercial purpose, although accepts he also possessed it for his own use.

The defendant has given evidence in the form of an affidavit (exhibit 4) and been cross-examined before me by the Crown prosecutor.

On the basis of that evidence, it is apparent that the defendant had the financial means to purchase cocaine in relatively large quantities.  He runs his own business, as a stonemason, and also has investments in residential and commercial property from which he earns additional income.  He has put into evidence his and his business’ tax returns, and bank statements, which support that.  

He acknowledges his fairly significant addiction, over a number of years, to regular use of cocaine.  His evidence is that he periodically buys half an ounce of cocaine, for his own use, for around $4500.  He said he would do this roughly every 3 to 6 weeks.  He prefers to buy it in this way to save money and also because he believes he gets a better (ie more pure) product. 

In relation to the fact of the 10 clip seal bags found in the wardrobe and the garage, the defendant’s evidence, which I accept, is that he goes out frequently, at least four nights a week, using cocaine basically every time.  Sometimes after a night out he returns home with an unfinished bag of cocaine.  He said he would put that bag somewhere – hiding it from his fiancé, who does not use drugs and disapproves of his drug use.  He said he sometimes loses track of these bags.   As submitted by counsel for the defendant, the range of quantities in the clip seal bags found in the walk-in wardrobe and garage, as set out in paragraph 3 of the agreed statement of facts, is consistent with the defendant’s evidence in this regard.    Apart from the one larger bag found in the garage, they range from 0.034 grams of substance, containing 0.017 grams of cocaine up to 0.809 grams of substance, containing 0.520 grams of cocaine.  The purity ranges from 29.2% up to 64.4%.

I observe also that no digital scales were found in this search, which is also consistent with the defendant’s evidence that he roughly divides up the larger quantity of the drug that he buys, and also roughly adds, previously, either glutamine or the infant teething powder, and now just the latter, to make the substance last longer and mitigate the discomfort of ingesting the drug nasally.

As to that, although the prosecutor submitted the presence of cutting agents was consistent with commercial activity, I can see no reason not to accept the defendant’s evidence about the use he made of these agents, and the purpose of them.  There is no basis in the evidence before the court to reject that as implausible from a drug user’s point of view.

In relation to the vacuum sealing machine, I accept the defendant’s evidence about this belonging to his fiancé and being used by her in the course of a business she runs, selling clothing, which she packages for mailing to clients.  The defendant gave an explanation for why cocaine residue was found on one of the vacuum sealed bags, by reference to a friend showing him how to use it.  That explanation was less than convincing.  However, because I accept the evidence of this machine belonging to the fiancé and being used by her in the manner described, and because there is otherwise no link between this machine and the way in which the drugs were found (which was in clip seal bags, not vacuum sealed bags), I do not regard this as supporting the inference of commerciality.

In relation to the money found, again, I accept the defendant’s evidence in relation to this.  He is, as he said, a tradesman and builder, and it is a matter of common experience that work of that kind can sometimes be paid for in cash.  His explanation of wanting to have a sum of cash available as a safety net, and because he “doesn’t trust banks” is not so implausible as to reject it.   The financial documents exhibited to his affidavit show that he has also included cash payments in his tax returns.  Those financial documents also diminish the significance that might otherwise attach to finding a sum of money of this kind in a safe in someone’s house.  The smaller sum was apparently found in a work folder in the garage, consistent with that being a cash payment for work.

I am somewhat more sceptical about the evidence given by the defendant in relation to his phone.  The evidence is that on the day of the search, when the police went to the home, the defendant was not there, although his fiancé was.  They called the defendant and asked him to come home.  So he knew there was a “raid”, to use his word, happening at his house, and knowing that he had drugs there, assumed that it was about drugs.  He took two hours to get there.  His evidence was that he had to pack up his job site first, which I accept.  He also said that in doing that, he accidentally dropped his phone into a bucket of glue used for his stonemasonry business.   The phone was irreparably damaged as a result.  He stopped at McDonalds on the way home to get something to eat, and put the phone in the bin there because it was unsalvageable.  He said he also stopped on the way home to see his lawyer, having to do this in person because his phone no longer worked. 

It is highly convenient that this incident, of his phone falling into the glue, would occur on the very day the police have called the defendant to ask him to come home where they are executing a search warrant.  Although, the defendant says this had happened before to his phone, and that he thinks he replaces his phone about four times a year due to such incidents.

Whilst I am, as I have said, sceptical about this evidence, it does not cause me to form a different view about the allegation of commerciality of the possession of cocaine, having regard to the other evidence, which I do accept, and the fact that it would have been open to the police to obtain a warrant to search the defendant’s phone records, and there is no evidence before the court of that step being taken. 

For those reasons, I am not satisfied, to the requisite standard, that the allegation of a partly commercial purpose to the defendant’s possession of the cocaine is true, and he will be sentenced on the basis that he possessed the drug for his personal use.

SENTENCING REMARKS

Michael Ivan Suto, you are to be sentenced today for one count of possessing the dangerous drug cocaine in a quantity exceeding 2 grams and one count of possessing some other drugs, alprazolam, methylamphetamine and MDMA.

You pleaded guilty to those offences when arraigned before another Judge of this Court on 19 April 2021.  I am taking your pleas of guilty into account in reducing the penalty that otherwise would have been imposed on you.  It shows you have taken responsibility for your actions and that you are willing to assist the course of justice.  I accept that the pleas of guilty were indicated at a very early time.

The offences are serious.  Possessing a drug like cocaine, in a quantity such as you did, carries a maximum penalty of 25 years imprisonment.  That reflects how seriously the community regards offending of this kind, and that is because of the seriously damaging effect of drugs such a cocaine, and also methylamphetamine and MDMA.

You have been quite candid in your affidavit about the addiction you have to cocaine.  Given your circumstances, I am not sure if you have felt the damaging and destructive effects of that yet – although you are now experiencing standing in this Court to be sentenced for very serious criminal offending, and you will soon, as a result of the sentence to be imposed, have to face the challenge of ridding yourself of that addiction, because I am sure random drug testing will be a part of the parole regime, under which you will serve your sentence.   Beyond concern about the particular person who uses these drugs, the community is also concerned more broadly about the damage to society, and part of the purpose of this sentence is to communicate the community’s denunciation to you.

The facts I will outline briefly.  Your home was searched on 9 January 2020.  You were not there when police arrived, but came later.  A search of your home found cocaine across 10 clip seal bags, seven of which were in the garage and three in the walk-in wardrobe of your bedroom.  Overall, the total quantity was 11.333 grams, in 23.907 grams of substance, with an average purity of 47.4% (that is count 1).

The other drugs the subject of count 2 were found in the garage (two bags containing MDMA and another bag containing methylamphetamine) and the bathroom (the alprazolam).  Also found was money in the garage and in a safe in your house, and the other things already referred to – but those are not the subject of any charges before the court today.

I have found, for the reasons given earlier, that you possessed the cocaine for your personal use.  The Crown accepted you possessed the other drugs for personal use also.

You are presently 43 years of age, 42 at the time of the offending.  You do have a criminal history but it is to all intents and purposes irrelevant, as it has only one very dated and minor entry on it from 2003.  You do have a poor traffic history, which indicates you are someone who does not follow the rules which govern all of us as road users, but it is of limited relevance to today’s sentence.

As I have heard, in the evidence earlier, you are a stonemason and conduct your own business which is quite successful.  You have worked in that capacity the whole of your adult life, and before that for your father as well.   So you are otherwise a contributing member of the community, with a good work history and good work ethic.

In terms of the appropriate penalty to impose, in my view a sentence of 2 years imprisonment on count 1 is appropriate.  [I record that, in the course of oral submissions I indicated to defence counsel that I did not accept his submission that a term of 15 to 18 months’ imprisonment was appropriate, having regard to the quantity of cocaine possessed.]  I accept that a concurrent term of 6 months is appropriate for count 2.   In my view, the sentence of 2 years is warranted having regard to the quantity of cocaine possessed – which is significantly in excess of 2 grams, at 11.333 grams pure, even though I have accepted that was for your own use.  I factor into that also the fact that you have been convicted of possessing the three other drugs as well.

At the other end of the sentence, though, I am persuaded that it is appropriate to fix today as the date you be released on parole.  In forming that view I take into account your pleas of guilty, your cooperation more generally with the police at the time of the search, the absence of criminal history, your good work history and the fact that you continue to operate your own business.  You will be supervised by the parole authorities while you serve that sentence in the community, and so the community is protected because if you fail to comply with your parole, you face the very real prospect of being taken into custody.

Formalising the sentence:  in respect of count 1 on the indictment, you are sentenced to 2 years imprisonment; on count 2 you are sentenced to 6 months imprisonment, to be served concurrently, meaning at the same time.  For the reasons given, I fix today as the date you be released on parole.  The effect of that is that you are taken to be subject to a court ordered parole order.  You must report to the probation and parole office at Brisbane by 4 pm today to obtain a copy of the order.  There will be a range of conditions of your parole, including that you report to or receive visits from a parole officer, and possibly engaging in counselling or other programs, and I am sure it will include random drug testing.  It is very important that you comply, if you want to avoid going into custody.

Under the orders I am making, you get to serve your sentence in the community.  If you breach your parole, and find yourself in prison, you will have walked yourself in there.  I am giving you the opportunity to stay out of prison, but the responsibility is on you now.