R v Campbell [2017] ACTSC 74

30 November 2016; 14 December 2016; 1 February 2017

Total sentence of 13 months' imprisonment; sentences of 13 months' imprisonment for trafficking in a controlled drug other than cannabis and 3 months' imprisonment for dealing in the proceeds of crime to be served concurrently.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Drug offences - Trafficking in a controlled drug other than cannabis - Dealing in the proceeds of crime - Concurrent sentences - Imprisonment - Nonparole period - Decline to set a nonparole period - Significant criminal history

Crimes Act 1900 (ACT) s 114C

Crimes (Sentence Administration) Act 2005 (ACT) ss 148, 151, 161

Crimes (Sentencing) Act 2005 (ACT) ss 33, 65(4)

SCC 121 of 2016; SCC 122 of 2016

1. On 30 November 2016 the offender pleaded guilty to the following offences:

(a) On 22 December 2015 he trafficked in controlled drugs other than cannabis, namely methylamphetamine and heroin; and

(b) On 22 December 2015 he dealt in the proceeds of crime.

2. In relation to count one, the Court is asked to take into account the additional offence that on 22 December 2015 the offender trafficked in the controlled drug amphetamine.

3. The maximum penalty for the offence of dealing with the proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT) is two years' imprisonment and a fine of $30 000.

4. The maximum penalty for the offence of trafficking in a controlled drug contrary to s 603 of the Criminal Code 2002 (ACT) (Criminal Code) is 10 years' imprisonment and a fine of $150 000. For a commercial quantity, it is 25 years' imprisonment and a fine of $375 000. For a large commercial quantity, it is life imprisonment.

5. The trafficable quantity for methylamphetamine is 6g and the commercial quantity is 3kg. The trafficable quantity for heroin is 5g and the commercial quantity is 2.5kg. The trafficable quantity for amphetamine is 6g and the commercial quantity is 3kg.

6. In the week preceding the entry of the pleas of guilty, the parties discussed the appropriate charges. Pleas of guilty were foreshadowed several days before the trial was scheduled to commence and entered on the day when it was to commence. The pleas demonstrate some remorse and willingness to assist the justice process. Despite the reasonably strong prosecution case, the pleas do have a significant utilitarian value. The appropriate discount is in the range of 10 - 15 per cent.

7. Since his arrest on 22 December 2015, the offender has been in custody solely in relation to these offences.

8. On 11 December 2015, a Ms Crane hired an Audi sedan from Canberra Airport. The vehicle was due to be returned by 23 December 2015.

9. On 15 December 2015, police observed the vehicle parked in the driveway of the offender's residence in Franklin. However, in the early hours of 21 December 2015 a neighbour found the vehicle parked in his parking bay.

10. At approximately 10:30am on 22 December 2015, police executed a search warrant at the offender's residence. In his bedroom, they located the key to the vehicle. In the kitchen, they located numerous clip seal bags.

11. The police then conducted a search of the vehicle. In a large Louis Vuitton bag, they located $625, a glass pipe, a set of scales, a small Louis Vuitton bag and the illicit drugs. They found three bags of crystal methylamphetamine (weighing approximately 8.461g), a sandwich bag containing three clip seal bags and seven blue grey tablets (amphetamine weighing approximately 1.883g), a clip seal bag containing green vegetable matter and three bags of white powder (heroin weighing approximately 8.815g). In the small bag they located a wallet containing $240. A wad of $5565 in cash was stored separately in the small bag. They also found identification documents relating to the offender, a key to the offender's residence and a remote control to the garage of the offender's residence.

12. The offender's DNA profile was located on a number of items within the vehicle.

13. Under the Criminal Code, different types of drug may be the subject of one charge. In such cases, under s 631 of the Criminal Code, it is necessary to consider the "required fraction". In relation to the quantity of methylamphetamine and heroin that was found in this case, the "required fraction" was 3.173, i.e. the quantity of the drugs that was found was 3.173 times the trafficable quantity applicable when drugs comprise both methylamphetamine and heroin. Individually, the amounts just exceeded the trafficable quantity applicable to the particular drug.

14. When determining the objective seriousness of a drug trafficking offence, the primary consideration is the culpability of the offender's conduct (what the offender did). In this case, on one date (not multiple dates), the offender possessed drugs in a quantity consistent with street level dealing. The possession of scales and the associated possession of proceeds of crime in the sum of $6430 support the fact that the offender was engaged in a low level commercial enterprise. He was not a street level dealer at the lowest level. This is apparent from the variety and overall quantity of the drugs possessed including the amphetamines (although some drugs were for personal use) and the amount of money in the offender's possession.

15. In relation to the quantity of drugs in the offender's possession, I accept that it was at the low end of "trafficable quantity" and that part of the drugs in the offender's possession was for personal use.

16. I accept that the offender was trafficking in drugs largely to support his drug dependency. Street level dealing is consistent with the offender being drug dependent, he has a history of drug dependency and an ice smoking pipe was found in the large Louis Vuitton bag.

17. The offender is now 29 years old. He was 28 years old at the date of the offences.

18. The Court was informed from the bar table (without objection) that the offender had a disadvantaged upbringing. His mother had a criminal record and was a drug user. The use of illicit substances was "normalised" within the family.

19. Since leaving school, the offender has worked from time to time as a landscaper and in the building industry.

20. At 14 years of age, the offender began to use heroin and ice. He has struggled with addiction for many years. He has undertaken counselling with Directions ACT and has commenced a number of residential rehabilitation programs. To date, he has not graduated from a residential rehabilitation program. The longest period spent in residential rehabilitation was a period of about three months at Adele House.

21. During his current period of imprisonment, the offender has demonstrated commitment to rehabilitation. Despite being a remand prisoner and therefore theoretically unqualified to enter the Solaris Therapeutic Community Program at the Alexander McConnachie Centre, the offender obtained entry to the Program and has graduated from it. He has engaged with Directions ACT and developed a relapse prevention program.

22. The offender enjoys the support of his sister, a public servant. He hopes to live with her when he is released from custody.

23. The offender has a significant criminal history. His adult history commenced with relatively minor offences, particularly driving offences, dating from 2006. The earlier adult criminal history also includes three minor drug offences (between 2006 and 2008). More serious driving offences resulted in the offender serving sentences of 4, 6 and 8 months' imprisonment in 2007 and 2009.

24. It is a matter of concern that, at the time of the current offences, the offender was on parole for a raft of offences committed in 2012 and 2013, being firearms, burglary, forcible confinement and driving offences, as well as an offence of supplying a prohibited substance (which related to the supply of 37.53g of pure methylamphetamine). The sentence for the drug matter was 13 months' imprisonment from 7 July 2015. The total sentence extended from 2 January 2013 to 5 December 2016 (approximately 47 months). The adjusted nonparole date was 6 December 2014 (approximately 23 months or half the total term).

25. On 23 December 2014, the offender was released to serve one year, 11 months and 12 days on parole.

26. The Court was informed that, upon his release, the offender attempted to address substance abuse, but gradually slipped back into drug dependency.

27. General deterrence is always an important sentencing consideration when sentencing offenders for the supply of drugs, particularly where an offence was committed for profit.

28. In relation to this offender and the offences before the Court, personal deterrence and accountability are also of importance. The present offences were committed while the offender was on parole for a similar offence. He had been in custody for a little under two years and, following release, he gradually relapsed into drug abuse, committing the present offences 12 months after his release.

29. In so far as they are known and relevant, s 33 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) considerations have been referred to above.

30. For the offence of trafficking in controlled drugs, the starting point for the sentence is 15 months' imprisonment, from which I will deduct two months for the plea of guilty to arrive at a sentence of 13 months' imprisonment.

31. For the offence of dealing with the proceeds of crime I will impose a concurrent sentence of three months' imprisonment.

32. This matter first came before me on 30 November 2016. At that stage, the parties agreed that when I convicted the offender for the present offences, I would then perform the administrative function under s 161(2) of the Crime (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) of ordering that the offender serve the whole of the parole period attaching to the earlier offences (one year, 11 months and 12 days from the date of conviction). Had I proceeded on 30 November 2016, I could have convicted the offender of the present offences and made an order under s 161(2), thereby causing the offender to commence serving an "existing sentence". I could then have sentenced the offender to a term of imprisonment for the present offences and set a nonparole period, by reference to the whole of the period from 22 December 2015 to the date of expiry of the existing sentence, which would have been one year, 11 months and 12 days from the date of conviction or sentence.

33. However, by 14 December 2016 when the matter next came before me, the parole period for the earlier offences had expired. My attention was drawn to s 151 of the Sentence Administration Act which appears to apply in the present situation. It addresses the situation where a parole order has ended, but an offender is then found guilty or convicted of an offence that occurred while the parole order was in force. Pursuant to s 151(2)(b), the Board is taken to have cancelled the offender's parole order under s 148. What is unclear is whether the Board can then entertain a new application for release to parole during the currency of the reinstated period. The parties were unable to point me to a provision that enabled the Board to do so.

34. Originally, I formed the view that if the parole order was cancelled under s 161, then the appropriate course was to impose a sentence of 13 months' imprisonment, back date it to 22 December 2015 and fix a new nonparole period which would expire on 21 April 2017, i.e. a new nonparole period of 16 months' imprisonment. However, as s 151 is now the operative provision, I cannot do that. If I had possessed that power, I would have fixed a new nonparole date of 21 April 2017 and the offender would have been eligible for parole from that date.

35. To enable the parties to give further consideration to the administrative consequences of the offender's situation, I adjourned the proceedings. I foreshadowed that on the next occasion, I would sentence the offender to 13 months' imprisonment from 22 March 2016 to 21 April 2017 and determine that, under s 65(4) of the Sentencing Act, it was inappropriate to set a nonparole period. As far as my sentence was concerned, the offender would be released on 21 April 2017.

36. I did not make a finding of guilt, record a conviction or impose a sentence on this occasion, reserving those matters for the next occasion, enabling the parties to identify any legislative provisions that aided or undermined the course of action that I proposed.

37. When the matter returned to me on 1 February 2017, neither party made further submissions or sought to be heard against the course that I had proposed on 14 December 2016. Consequently, I convicted and sentenced the offender in accordance with the proposal that was foreshadowed on 14 December 2016 (see [31]-[32] above). Taking into consideration the matters in s 65(4) of the Sentencing Act, I declined to set a nonparole period.

38. It is the understanding of the parties that the offender will become eligible to apply for parole on 21 April 2017. I understand that the application may well receive favourable consideration.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.