R v Brown [2019] ACTSC 59

Crimes (Sentencing) Act 2005 (ACT), s 7

Drugs of Dependence Act 1989 (ACT), s 164(3)(c)

Nchouki v The Queen [2018] ACTCA 28

R v BG [2017] ACTSC 382

R v Campbell [2010] ACTCA 20

R v Davidson [2018] ACTSC 227

R v Hyde [2017] ACTSC 337

R v Le Pavoux [2017] ACTSC 330

R v Lou (No 2) [2017] ACTSC 266

R v Nchucki (No 2) [2017] ACTSC 387

R v Olbrich [1999] HCA 54; 199 CLR 270

Zhao v the Queen [2018] ACTCA 38

1. The offender, Corey Brown, has pleaded guilty to the following offences:

(1) trafficking in a controlled drug other than cannabis, namely, methylamphetamine between 20 October and 31 October 2017 (CC2018/5013) contrary to the Criminal Code 2002 (ACT), s 603(7), the maximum penalty for which is 10 years imprisonment or a fine of $150,000 or both; and

(2) possessing a prohibited substance namely 3,4methylenendioxyamphetamine (MDA) for the purpose of sale or supply on 30 October 2017 (XO2019/31468), an offence contrary to the Drugs of Dependence Act 1989 (ACT), s 164(3)(c), the maximum penalty for which is five years imprisonment or a fine of $75,000 or both.

2. The offender has asked the court to take into account the following additional offences in sentencing him for the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine:

(1) unauthorised possession of a prohibited weapon, being a blue handled dagger on 30 October 2017; and

(2) unlawful possession of stolen property, being a silver Isuzu D-MAX motor vehicle on 30 October 2017.

3. Had they been sentenced separately, the maximum penalties for these offences would have been five years imprisonment or a fine of $75,000 or both and six months imprisonment or a fine of $7500 or both respectively.

4. I will take these into account in the manner described in R v Campbell [2010] ACTCA 20 at [47]- [50].

5. On 30 October 2017, police executed a search warrant at the house of the offender and his wife. During execution of the search warrant police located and seized a number of items including $41,685 in cash, a number of clip seal bags, various amounts of drugs, a stolen silver Isuzu D-MAX motor vehicle, mobile phones and knives. The offender and his wife lived at the property although it was owned by his wife's parents. The offender paid his wife's parents rent on a weekly basis of $400-$450 in cash. The couple's son lived with them. Amongst the items located on the premises was a crystalline substance weighing 43.52g which contained methylamphetamine, a similar substance weighing 1.328g which contained methylamphetamine, and tablets weighing 1.507g containing 3, 4-methylenendioxyamphetamine and methylamphetamine in the tablets. Two ice pipes were also found containing residue which contained methylamphetamine. Also seized were seven mobile phones, a collection of small clip seal bags, three sets of digital scales and an unused ice pipe. The offender gave an explanation to police for his possession of the money which he attributed it to successful gambling and money earned from his work as a concreter and doing up and selling cars.

6. The silver Isuzu D-MAX vehicle had been stolen from its owner in mid-2017. The vehicle had been moved to the offender's premises by a tow truck driver.

7. The blue handled dagger, the subject of the possession of a prohibited weapon charge, was identified as a prohibited weapon by a trainee forensic firearms examiner because the knife had a flat blade with cutting edges along the length of both sides of the blade.

8. At the time of the offences, the offender was subject to a grant of bail for unrelated matters. Amongst the conditions of his bail were conditions that he was not to consume illicit substances and that he was not to be in the possession of keys to a motor vehicle.

9. There was a dispute between the parties as to the significance to be placed upon the amount of cash found in the premises for the purposes of characterising the extent of trafficking in which the offender was involved. In addition to the statements made to police which were contained in the admitted Statement of Facts, the offender gave oral evidence that he had only commenced using methylamphetamine a couple of months prior to the execution of the search warrant and that he only sold drugs in order to pay for his own habit. He gave evidence that at the time of the search warrant he earned income through buying, renovating and selling cars, a process which he described as "flipping them". He gave evidence that he sold his white VT Clubsport Commodore for $15,000 on 29 October 2017 and that the cash paid for this formed part of the money which was found by police. He also gave evidence in relation to a series of invoices which were issued by him on behalf of a company which his wife owned called Multiprofix Pty Ltd. Although not all of the invoices were legible, they disclosed charges in excess of $44,000 including GST during the period November 2016 to April 2017. There is no evidence of the payment of those invoices, but if they were paid they would reflect income to the company of the same amount.

10. The evidence that the offender gave about having commenced using methylamphetamine two months prior to the execution of the search warrant was inconsistent with what he told the author of the pre-sentence report who recorded that he had commenced using in 2013. In oral evidence he subsequently explained that his use had only been very minor from 2013. In answer to some leading questions in reexamination he then said that what he had told the author of the pre-sentence report related to his use of MDA rather than ice.

11. The evidence that the offender gave was not convincing. It was given in general terms, unsupported by reliable documentation and appeared to be inconsistent with the amount of methylamphetamine that was found on the premises. He gave no explanation why, if his activities were at a modest level, seven mobile phones would have been found at his house. His evidence was certainly not sufficient to permit findings to be made on the balance of probabilities that the source of the funds were as he gave evidence. However, if facts are to be taken into account in a way that is adverse to the interests of the accused, it is for the Crown to establish beyond reasonable doubt those facts: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]. The agreed facts are not such as to permit a finding beyond reasonable doubt that the whole, or a substantial part of the money seized by police was itself the proceeds of trafficking activities occurring during the charged period. Similarly, the evidence does not establish beyond reasonable doubt that he was more than a user-dealer albeit at a substantial level.

12. The quantity of methylamphetamine was significant both in terms of the potential harm to the community, but also as one of the indicators of his level in the hierarchy of traffickers. Whilst the evidence does not establish that he was more than a user-dealer, it is sufficient to establish that the scale of activity was at the higher rather than lower end of this category of trafficking. The quantity of methylamphetamine is enough to be significant in terms of the harmful effects caused by its distribution. The Crown has not established that the motivation went significantly beyond the maintenance of a significant methylamphetamine habit. Overall, I would assess the objective seriousness of this offence as below the mid range of the objective seriousness for offences of this type.

13. So far as the MDA offence is concerned, this is clearly at the low end of objective seriousness having regard to the quantity in question and the absence of evidence about the circumstances in which it might have been supplied to other persons, other than to friends of the offender upon their request.

14. The offender is 34 years old. He was born in Wellington, New Zealand and is one of three children. His mother and stepfather moved to Australia when he was 16. He had a positive relationship with his mother and stepfather. However, he experienced violence and alcohol abuse outside the family home.

15. He completed Year 10 level education in New Zealand and commenced work after arriving in Australia. He has worked as a rigger and in the concreting industry, although his precise work history is not detailed in the evidence. He has five children with three different mothers. The children are aged 13, 11, 10, nine and two. His current partner is the mother of the nine-year-old and the two-year-old. He is resigned to being deported from Australia after completing his sentence for the present offences and plans to reestablish himself in New Zealand with his partner and two youngest children.

16. He commenced using methylamphetamine in 2013. Whilst there were periods of abstinence, relationship or employment difficulties triggered his return to drug use. He did not report any significant mental or physical health conditions. He has no prosocial supports outside his family and acknowledged his association with antisocial peers as contributing to his offending conduct.

17. He was assessed by the author of the pre-sentence report as being a medium risk of reoffending. He was assessed as not suitable for community service work due to his unaddressed drug use.

18. The offender's criminal history in the Australian Capital Territory (ACT) commences in 2006 and comprises driving offences and an offence of possessing a drug of dependence. In 2015 and 2017 he received sentences of imprisonment in relation to charges of driving while disqualified and driving with a prescribed drug in his oral fluid. His New South Wales record commences in 2004 and comprises driving offences up until 2014 when there is a break, enter and steal offence for which he was sentenced to eight months imprisonment and three months imprisonment for a drive whilst disqualified charge. He was required to serve a total of four months imprisonment before being eligible for parole.

19. The offender was charged with trafficking and additional offences to be taken into account on 31 October 2017 and pleas of not guilty were entered to those charges. The matters were committed for trial on 22 May 2018 and the trial was to commence on 26 November 2018. On 2 November 2018, the offender pleaded guilty to the charge of trafficking in a controlled drug and at that point an amended indictment was presented including the additional offence of possessing a prohibited substance. A plea of guilty was entered to that additional count. The pleas of guilty though not at an early stage have utilitarian value. Because of the pleas of guilty I will allow the offender a reduction of 15% on the sentence that I would otherwise have imposed on each offence.

20. The offender has spent 338 days in custody solely attributable to these offences. I will take this time into account by backdating the sentence. The backdate date is therefore 27 February 2018.

21. Counsel for the Crown helpfully provided a table of comparative sentences for trafficking in a controlled drug other than cannabis, namely methylamphetamine. Those cases were Zhao v the Queen [2018] ACTCA 38; R v Davidson [2018] ACTSC 227; R v Nchucki (No 2) [2017] ACTSC 387; R v BG [2017] ACTSC 382; R v Le Pavoux [2017] ACTSC 330; R v Hyde [2017] ACTSC 337 and R v Lou (No 2) [2017] ACTSC 266. I have had regard to the sentences imposed in those cases. The two most similar cases are Nchucki (No 2) and BG, which are generally consistent with the overall sentencing practice disclosed by the cases.

22. In Nchuki (No 2), the offender had 57.28g of methylamphetamine, the motivation of the sale of drugs was for profit and the offender was above a street level user-dealer. He was a 37-year-old drug user who had a successful business in the construction industry, but was a former member of an outlaw motorcycle gang. He had a minimal criminal history. For the trafficking methylamphetamine charge he received 18 months imprisonment. An appeal against the sentences imposed upon him was dismissed: Nchouki v The Queen [2018] ACTCA 28.

23. In BG, the offences were treated as being "towards the lower end of the scale", although the quantity of methylamphetamine in question was not described. The offender was 41 years old, had no relevant criminal history and was a drug user at the time of the offending. He received a sentence of 12 months imprisonment for trafficking in methylamphetamine.

24. Having regard to the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT), I am satisfied that in relation to each offence no sentence other than a sentence of imprisonment is appropriate. Counsel for the offender submitted that whether or not he was deported as a result of his conviction, it was the offender's intention to move his family to New Zealand when he was able to following the completion of any custodial sentence. He therefore submitted that having regard to the time already spent in custody on remand, he should not be required to spend a substantial further period in custody prior to being eligible for parole or prior to the suspension of his sentence. The submissions made by the Crown were not inconsistent with such an approach and I accept that it is an appropriate one. In the light of these submissions and the substantial period already spent in custody, it is appropriate that the custodial sentence be served by full time detention.

25. Taking account of the scheduled offences, I will impose a sentence of 17 months for the trafficking in methylamphetamine charge. This has been reduced from 20 months on account of the plea of guilty. I will impose a sentence of 52 days, reduced from two months on account of the plea of guilty for the charge relating to the possession of the MDA. This will be cumulative as to one month upon the previous sentence. This gives an aggregate sentence of 18 months imprisonment. I will impose a non-parole period of 12 months which represents 66% of the head sentence.

(1) On the charge of trafficking in a controlled drug other than cannabis, namely methylamphetamine the offender is sentenced to imprisonment for a period of 17 months from on 27 February 2018 and ending on 26 July 2019.

(2) On the charge of possessing a prohibited substance, namely 3,4 methylenedioxyamphetamine (MDA) the offender is sentenced to imprisonment for 52 days commencing on 6 July 2019 and ending on 26 August 2019.

(3) The non-parole period is from 27 February 2018 until 26 February 2019.

(4) Charges CC2017/11913 (possessing a drug of dependence, namely methylamphetamine), CC2017/11915 (unlawful possession of stolen property) and CC2018/5012 (possessing a drug of dependence, namely 3,4 methylenedioxyamphetamine (MDA)) are dismissed.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.