R v BG [2017] ACTSC 382

Drugs of Dependence Act 1989 (ACT) ss 169(1) and 171(1)(b)

Bui v The Queen [2015] ACTCA 5

R v Cooper [2012] ACTCA 9

R v De Leeuw [2015] NSWCCA 183

ACT Office of the Director of Public Prosecutions (Crown)

SCC 49 of 2017; SCC 50 of 2017

1. On 26 July 2017, the offender pleaded guilty to three counts in an amended indictment. The three counts and their respective maximum penalties are:

(a) Trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $150,000 and/or 10 years imprisonment.

(b) Cultivate a cannabis plant for sale, contrary to s 616(8) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $45,000 and/or 3 years imprisonment.

(c) Possess child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is a fine of $105,000 and/or 7 years imprisonment.

2. The offender is also to be sentenced in respect of two transfer charges. These are:

(a) Possessing a prohibited substance, contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is a fine of $7,500 and/or 2 years imprisonment.

(b) Possessing a drug of dependence, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is a fine of $7,500 and/or 2 years imprisonment.

3. The offender was born in Canberra in 1976. In 2009, he was convicted of an offence of driving under the influence of alcohol. It would appear that this is the extent of his criminal record.

4. The offender had a relatively stable upbringing. However, he appears to have been significantly affected by the suicide of a close friend, which occurred when he was about 20 years old. His mother died in 2015, which also severely affected him.

5. The offender has been in three lengthy relationships and has a daughter who is now 17 years of age. The offender's daughter currently resides with her mother.

6. The offender successfully completed Year 12. He has obtained a number of vocational qualifications. The offender has been employed as a musician in a number of bands. He was asked to leave because of his drug use. The offender was operating a business that provided rehearsal spaces to bands at the time of his arrest. In late 2016, the offender commenced employment as a dry cleaner. The offender has been in employment ever since leaving school.

7. The offender has indicated that he has a lot of debt. He has a credit card debt and owes money on a personal loan. The offender obviously consumes too much alcohol, although it appears that he has recently moderated his use. His drug use has affected his capacity to work.

8. The offender appears to have not used drugs while has been on bail for these offences. He has also attended counselling and appears to be genuine in his efforts to overcome his drug issues.

9. The two drug charges are, relatively speaking, not particularly serious. The offence of possess child pornography is serious. Each time a photograph is taken is taken of a child for the purposes of producing child pornography, that child is exploited both at the time and indefinitely into the future. That child's image is spread by deviant people through the internet. The psychological effects on the child are potentially immense.

10. The psychologist, Mr O'Brien, observed that the offender does not have an interest in pornography involving children, nor any sexual interest in that them, but rather:

...his interest has become more in younger models, usually sourced under the link 'teenage girls' on any one of the free pornographic sites, because these sites use mature women who look quite young.

11. To the extent that this is an excuse for the child pornography retained by the offender, I reject it. As I have observed above, each child photographed is a victim. The fact that the offender has no "interest" in them does not lessen the exploitation of these victims.

12. Notwithstanding the above remarks, the Crown conceded that the offence was at the low end of the scale and pointed to a number of facts in support of that assessment, derived from R v De Leeuw [2015] NSWCCA 183 and R v Cooper [2012] ACTCA 9.

13. I specifically asked the Crown whether it would be inappropriate for me to wholly suspend any sentence imposed. The Crown indicated that a term of imprisonment was appropriate but that it did not wish to be heard on the manner in which the sentence should be served.

14. My initial reaction was one of surprise. Considerations of general and specific deterrence and the need for the condemnation of any action involving the exploitation of children generally dictates otherwise. However, the submissions made by the Crown and Mr Archer have persuaded me that there are enough subjective factors present in this matter to take an approach that does not necessarily involve full-time custody. I should add that I do so with a degree of reluctance. Were it not for the evidence suggesting that the offender has made significant steps in his rehabilitation, has expressed genuine remorse and the fact that there is little prospect of reoffending, I would most certainly have not followed the course that I intend to follow.

15. In respect of the drug offences, it has been pointed out to me that, applying the factors in Bui v The Queen [2015] ACTCA 5, it would be appropriate to treat these offences as being towards the lower end of the scale.

16. I think that the offence of trafficking in a controlled drug other than cannabis is more serious than the other drug offences and that this should be reflected in the sentence. In sentencing the offender, I take into account the offence of possessing a prohibited weapon.

17. The offender's lifestyle and, to some degree, his reaction to his mother's death, have been referred to as a primary cause of the offending in relation to drugs. As far as the offender's lifestyle is concerned, that was a matter of his own choosing. In respect of his distress following the death of his mother, I accept that such an event can be a precipitative factor to the use of drugs. That does not mean that drugs should have been supplied, even if supplied free of charge.

18. The sentencing process requires an examination of the purposes and principles of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is particularly important because it tells the court that an offender should not be imprisoned unless there is no other alternative. In this case, the offender has said full-time imprisonment is not a necessity. There are options such as an Intensive Corrections Order and a suspended sentence.

19. Some time has passed since these offences were committed. During this time, the offender has taken significant steps towards dealing with his problems. He has had counselling on a weekly basis and has continued in secure and responsible employment. As I have already intimated, the sentences that I impose will be suspended. I sincerely hope that the community does not regard this as a lenient approach but rather as one which tries to address the criminality of the offences but also seeks to avoid the continued destruction of this man's life. If the offender were to spend any significant period in prison, I suspect his return to drugs would be swift and the chance of him living a constructive life would be slim.

20. I note that a discount of approximately 25% has been applied to the terms of the imprisonment. This arises from the pleas of guilty.

(a) In respect of the offence of trafficking in a controlled drug other than cannabis (CC 17/633), the offender is sentenced to 12 months imprisonment commencing on 13 December 2017 and ending on 12 December 2018.

(b) In respect of the offence of cultivate cannabis plant for sale (CC 17/634), the offender is sentenced to 3 months imprisonment commencing on 13 December 2017 and ending on 12 March 2018.

(c) In respect of the offence of possess child exploitation material (XO 17/3110), the offender is sentenced to 18 months imprisonment commencing on 13 December 2017 and ending on 12 June 2019.

(d) In respect of the offence of possessing a prohibited substance (CC 2017/935), the offender is sentenced to 1 month imprisonment commencing on 13 December 2017 and ending on 12 January 2018.

(e) In respect of the offence of possessing drugs of dependence (CC 2017/636), the offender is sentenced to 1 month imprisonment commencing on 13 December 2017 and ending on 12 January 2018.

(f) All of the terms of imprisonment are suspended with immediate effect, on condition that the offender enter into a Good Behaviour Order for a period of 2 years on condition that the offender report to ACT Corrective Services within 72 hours and accept all reasonable directions of the Director-General in respect of counselling, programs or treatments as directed by the supervising officer.

(g) A forfeiture order is made pursuant to s 23ZD of the Crimes Act 1914 (Cth) in respect of the following items:

• (i) Lexar 16GB USB;
• (ii) LG 4GB USB;
• (iii) SD card
• (iv) Black Samsung phone;
• (v) Toshiba with cracked screen;
• (vi) Silver Samsung phone;
• (vii) Dell laptop; and
• (viii) Samsung tablet.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.