CRIMINAL LAW - APPEAL - Sentence - trafficking a controlled drug - whether the Magistrate provided adequate reasons for sentencing decision - whether the Magistrate gave adequate consideration to sentencing alternatives - appeal upheld

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - conviction confirmed - appellant re-sentenced

1. Robert John Lodding appears before me today appealing the severity of a sentence imposed upon him in the Magistrate's Court in relation to the offence of trafficking a controlled drug, being methylamphetamine, pursuant to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is imprisonment for ten years.

2. The offender entered a plea of guilty. The penalty imposed by the magistrate was that of a custodial sentence of 15 months (less 1 day) from 23 July 2019 to 21 October 2020 with a nonparole period of 10 months (less 1 day) to expire on 21 May 2020.

3. It appears from the facts found by the learned magistrate the appellant's residence was searched on 11 December 2018. 114.169 grams of 76.5% pure methylamphetamine was found on his premises. Scales were found in the garage. The offender made admissions at that time. It seems that he had been a long-term user of methylamphetamine, and his evidence was that he had sold that drug to fund his addiction, not for other commercial purposes.

4. From the material before me it is clear that he had some prior offences, those being in 1997 and 2004 and since that time there has been no other drug offence or other matter relevant to these proceedings. I understand that he has been in employment and has trade qualifications. Since he has been in custody and since his arrest, I understand there to have been clean urinalysis and that the offender has accepted responsibility for his actions and that there is insight into his offending behaviour.

5. The appellant makes submissions to me that the reasons given by the magistrate for imposition of a custodial sentence do not expose his reasoning sufficiently and that on that and other grounds the conviction and sentence the appeal should be allowed. It is submitted that the magistrate did not set out the steps which he had taken into account to expose his reasoning and whilst he did look at the provisions of an Intensive Corrections Order (ICO), he did not set out any reason to reject that alternative, stating instead that he felt a full time custodial sentence to be the appropriate one. He did not address the steps or address the subjective factors of remorse or steps to rehabilitation. Whilst it seems that the magistrate did look at other sentencing options by noting them, it is submitted that he did not properly address those options.

6. Whilst an ICO is a more lenient sentence than a full-time custodial sentence, it is not a lenient sentence. It is one which involves an offender undertaking relevant programs, being under constant supervision and it is a sentence which is not of the same degree of leniency as perhaps a suspended sentence.

7. The Crown makes submissions that no order for an ICO would have been appropriate, although it seems that the submission made at the time of the sentencing exercise is somewhat unclear as to the reasoning for the Crown saying there was no basis for them to oppose an ICO. It is suggested that the submission was that they would make no objection to ordering an assessment.

8. It is necessary to consider how any sentence is to be served. It does not appear that the magistrate considered a suspended or a partly-suspended sentence. He looked mainly towards the objective seriousness of the offence and found this to be towards mid-range but did not assess that further.

9. It seems from the evidence that the use of the methylamphetamine was for personal use. It is suggested by the Crown that selling to defray his own habit was something which the magistrate found was for some financial gain. Even if not for profit, it was submitted that the offender was working as a user/dealer although for his own habit and this is not a mitigation factor.

10. It is clear to me that this gentleman has been a long-term user of drugs, albeit any prior offences were some 15 to 20 years ago and it is noted that in the subsequent years there has been no offending behaviour of that kind. I think that to be a relevant factor which must be taken into account.

11. The offender entered a guilty plea and was afforded a 25% discount. It is submitted by his counsel that this could have been increased and that it is not a mandatory amount for an early plea. It seems to me that a 25% discount is within range and I find nothing in particular that would cause me to increase the percentage. I therefore accept the magistrate's findings in that regard.

12. The Crown submits that the sentence is not outside the range and the weight of objective seriousness plus the two prior offences are such as to attract a custodial sentence.

13. The objective seriousness of this offence, it is submitted by the appellant, ignores relevant common law principles. In particular, that the three-step process has been ignored which is required to assess the way a sentence should be served and the appropriate way to serve a sentence.

14. It is my view that the other sentencing options were noted by the magistrate but I do not believe them to have been properly addressed. I agree an ICO to be a more lenient sentence than a full-time custodial sentence, but I do not find it to be a lenient sentence. It is a discretionary matter, however, pursuant to s 33 I must consider the plea, the effect of a sentence upon the offender, the fact that he has been seeking treatment and has maintained clean urinalysis, that he has expressed some remorse and that the utilitarian value of the plea is only one factor in weighing up the sentencing options.

15. The objective seriousness was found to be towards the mid-range, but I find it a little lower than that. I find the 25% discount appropriate, as I have said. The motive for his use was for his own use and to support his habit.

16. The sentence imposed as I have noted was that of 15 months (less 1 day) with a nonparole period of 10 months. It has been submitted to me that an ICO may now be the appropriate sentence to be afforded this offender. I take into account the fact that eight weeks will be needed for such an assessment to be done, which will take it to mid-February 2020. It seems to me that to impose such a condition as to make an ICO assessment would be to unduly prolong this process.

17. I have come to the conclusion that the sentencing discretion did disclose an error in relation to the sentence imposed by not considering fully all the available options. I am therefore prepared to uphold the appeal. I do not find an ICO to be an appropriate remedy due to relevant time factors and the circumstances of the offending.

18. I therefore intend to re-sentence the offender. I find the conviction to be upheld. I set aside the term of imprisonment imposed and I re-sentence the offender. I impose a 14-month (less 1 day) term of imprisonment from 23 July 2019 to 21 September 2020. I set a nonparole period of seven months (less 1 day) to 21 February 2020.

19. Accordingly, the orders of the Court are as follows:

(1) The appeal is upheld and the sentence imposed by Magistrate Stewart on

23 July 2019 is set aside.

(2) The conviction is confirmed.

(3) In respect of the offence of trafficking in a controlled substance other than cannabis (CC2018/14704), the appellant is re-sentenced to a term of imprisonment of 14 months (less 1 day), commencing 23 July 2019 and expiring on 21 September 2020.

(4) I set a nonparole period of 7 months (less 1 day), commencing 23 July 2019 and expiring on 21 February 2020.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgement of her Honour Acting Justice Ashford.