R v Clark [2019] ACTSC 147

See [28] and [30]

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - trafficking in a controlled drug, namely cocaine and possessing a prohibited weapon - early pleas - no criminal history - general and specific deterrence and rehabilitation - custodial sentences served by way of intensive correction

Crimes Act 1900 (ACT), s 194

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 80

Prohibited Weapons Act 1996 (ACT), s 5, Sch 1, Pt 1.2

1. The offender, Lucas Clark, has pleaded guilty to the following offences:

(1) traffic in a controlled drug other than cannabis, namely cocaine on 9 November 2018 contrary to s 603(7) of the Criminal Code 2002 (ACT), the maximum penalty being 1000 penalty units, imprisonment for 10 years or both; and

(2) possess a prohibited weapon when not authorised to do so on 9 November 2018 contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), the maximum penalty being 500 penalty units, imprisonment for five years or both.

2. The offender pleaded guilty to these charges in the Magistrates Court before they were committed to this Court for sentence.

3. On 6 November 2018, the Deputy Registrar of the Supreme Court of the Australian Capital Territory (ACT) issued a s 194 warrant under the Crimes Act 1900 (ACT) for the offender's residence.

4. At about 8:45am police attended and gained entry to the premises with the assistance of Australian Federal Police (AFP) Specialist Response group. The offender was in the main bedroom of the premises.

5. The offender stated to officers, "Okay, what you're looking for is in the top drawer".

6. Police conducted a search of the main bedroom of the premises. During this time, police located, in the top drawer of bedside table beside the main bed, one yellow coloured 'Nature's Way' container, which contained the following:

a) five plastic bags with a white coloured substance believed to be cocaine; and

b) one plastic bag containing a pink/red coloured substance.

7. A further search of the top drawer of the bedside table, beside the main bed, located one 'Emirates' brand travel bag, which contained the following:

a) three freezer bags with a white substance believed to be cocaine;

b) two clear sealable bags with a cream coloured powder; and

c) three plastic bags containing 26 rounds of ammunition.

8. Each package was estimated to contain about an ounce of cocaine. The total amount of cocaine found was 217.848g.

9. A further search of the main bedroom located two silver 'knuckle duster' handheld weapons.

10. Police conducted a search of the office/study area of the premises and located a firearm magazine, which did not contain any ammunition.

11. At about 11:56am the offender was placed under arrest for drug trafficking offences and was subsequently conveyed to the ACT Watch House.

12. The offender declined to participate in a digital record of interview.

13. Knuckle dusters are a prohibited weapon under Sch 1 Pt 1.2 of the Prohibited Weapons Act.

14. The trafficable quantity of cocaine is 6g. The commercial quantity is 3kg. The amount in the present case was significantly more than the minimum for a trafficable quantity but very substantially less than a commercial quantity. There are no other facts which would aggravate the offending. I assess it as being in the low to mid range of objective seriousness for this offence.

15. The prohibited weapon charge is in the low range of objective seriousness having regard to the range of weapons which may be the subject of this offence and the fact that what is alleged is possession rather than use.

16. The subjective circumstances of the offender are outlined in some detail in the intensive correction assessment report and in a psychological report of Dr Danielle Clout.

17. The offender is 36 years old and is the eldest of three children. He has good relationships with his mother and father. He reported a positive but somewhat unconventional upbringing. His father and brother have had associations with outlaw motorcycle gangs.

18. He has been in a relationship with his wife for 12 years and has two children aged eight and 10. He has been a stay-at-home father since 2013. The children attend primary school.

19. He completed Year 10 at school and left school during Year 11. Prior to 2013, he had worked for 10 years in the Commonwealth public service in an IT support position. In 2013 he moved his family to Melbourne for the purposes of a business venture involving the operation of a gymnasium. This turned out to be a financial disaster and after six months he returned with his family to the ACT. As a result of this failed venture, he has outstanding loans of around $100,000. His wife has been the breadwinner in the family. She works fulltime in an office supplies business and has worked in that business for approximately 20 years. She is presently an account manager and works five days per week.

20. The offender became an active member of an outlaw motorcycle gang in 2015. He reported that he stood down from his position as an active member in September 2018 and had removed himself completely from the club by January 2019. His associates are a mix of people who may be involved in unlawful activity and people who are not so involved. He has a history involving some drug use, none of which is of particular significance in relation to the present offences.

21. The author of the intensive correction report indicated that he accepted responsibility for his actions and was able to articulate his awareness of the impact of his offending on the community. He said that his financial predicament had been a significant contributing factor to his offending but recognised that his decisions at the time had been inappropriate and unlawful. He is assessed as having a low risk of reoffending. He is assessed as suitable for a community service order. He is assessed as suitable for service of a custodial sentence by way of intensive correction. The material in the presentence report is consistent with the more detailed history taken by Dr Clout in her report of 28 May 2019. Dr Clout assessed him as presently suffering from "Major Depressive Disorder, recurrent episode, current severity mild". She identified that as a result a sentence of full-time imprisonment would likely be more onerous for him than a person without his condition.

23. The offender pleaded guilty to the charges in the Magistrates Court on 27 March 2019. I will allow a discount of 25% on the custodial sentence that I would otherwise have imposed on the trafficking charge and I take into account the plea of guilty in relation to the sentence for possessing a prohibited weapon.

24. The offender spent one day in custody in relation to the offences and I will take this into account in sentencing him.

25. The legislature clearly considers that the trafficking charge is a serious offence having regard to the maximum penalty of 10 years imprisonment. So far as the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) are concerned, the most significant considerations are general and specific deterrence and rehabilitation. General deterrence is essential because of the prevalence of this kind of offending conduct and the need to indicate that persons involved in such conduct will be subject to significant penalties.

26. In the present case, it is significant that the offender has no criminal history. His motivation to possess the cocaine for the purposes of sale was contributed to by the financial circumstances in which he found himself. He has good family support and there is a low risk of reoffending. Having regard to the quantity of cocaine possessed and the seriousness of the offence reflected in the maximum penalty, in my view, only a custodial sentence will be appropriate. The starting point is a sentence of 16 months imprisonment which will be reduced to 12 months on account of the plea of guilty. I consider that it is appropriate that it be served by way of intensive correction with a component of community service. That appears to me to be more appropriate than a wholly or partly suspended sentence. It is more likely to ensure that there is no further offending in the future. In reaching this conclusion I have not given weight to the existence of the mental health condition reported by Dr Clout. As diagnosed, it is a mild condition which might be expected for persons facing criminal proceedings which involve the prospect of fulltime custody.

27. The prohibited weapon charge relating to the knuckle dusters may appropriately be dealt with by way of a good behaviour order.

1. On the charge of trafficking in a controlled drug other than cannabis (CC2018/13624), the offender is convicted and sentenced to imprisonment for a period of 12 months from 6 June 2019 to 5 June 2020.

2. The sentence is to be served by intensive correction in the community and includes an additional condition that the offender complete 100 hours of community service within 12 months.

3. On the charge of possessing a prohibited weapon (CC2018/13626), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.

29. After making the orders above, the operation of s 80 of the Crimes (Sentencing) Act was brought to my attention. Section 80 precludes the imposition of a good behaviour order concurrently with a sentence that is to be served by way of intensive correction, except in the limited circumstance, not present in this case, in which the offence to which the good behaviour order relates was committed prior to the offence for which the intensive correction order is made. As a consequence, court reconvened to hear the parties on how to correct the error (in order 3) on the sentence imposed for the charge of possessing a prohibited weapon.

30. After hearing submissions from the parties, I discharged order 3 in the form above and substituted orders 3 and 4 as follows:

3. On the charge of possessing a prohibited weapon (CC2018/13626) the offender is convicted and sentenced to imprisonment for seven days from 6 June 2019 until the 12 June 2019.

4. The sentence is to be served by way of intensive correction in the community.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.