R v Cole [2019] ACTSC 228

Offender sentenced to a total of 20 months' imprisonment, suspended after serving 5 months upon entering into a good behaviour order for 18 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Money laundering - Possession of drug of dependence for sale - Possession of prohibited weapon - High objective seriousness - Where the offender has good prospect of rehabilitation - Whether fulltime custody required.

Crimes Act 1900 (ACT) ss 114A, 114B

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35

Drugs of Dependence Act 1989 (ACT) s 164(2),

Prohibited Weapons Act 1996 (ACT) s 5, sch 1 pt 1.2(1)

Bui v The Queen [2015] ACTCA 5

R v Lang [2018] ACTSC 215

R v Toumo'ua [2016] ACTSC 163

1. The offender is to be sentenced for the following offences committed on 17 October 2018:

(a) Possession of a drug of dependence (cocaine) for the purpose of sale or supply to another person, contrary to s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT). This offence carries a maximum penalty of five years' imprisonment, a fine of 500 penalty units ($80,000), or both.

(b) Recklessly deal with money that was the proceeds of crime, contrary to s 114B of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 10 years' imprisonment, a fine of 1,000 penalty units ($160,000), or both.

(c) Unauthorised possession of a prohibited weapon (knuckle dusters), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). This offence carries a maximum penalty of five years' imprisonment, a fine of 500 penalty units ($80,000), or both.

2. After a number of mentions in the Magistrates Court, and following service of a full brief of evidence, the defence made representations to the Crown. The representations were accepted and the offender pleaded guilty to the current charges on 3 June 2019. He was committed to the Supreme Court for sentence. In those circumstances, the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for the pleas of guilty is at least 20 per cent, and I will allow a slightly higher discount.

3. Following his arrest on 21 October 2018, the offender spent one night in custody before he was granted bail; the sentences will recognise that fact.

4. On 17 October 2018, police obtained a warrant to search a unit in Phillip, ACT, premises of which the offender was the sole occupant.

5. At 12:50 PM on that day, police executed the warrant. The offender was not at home. During the search, police seized the following items:

(a) A black magnetic box that had been concealed inside a washing machine in the laundry. Inside the box itself, police found two plastic bags of white powder (cocaine). The cocaine weighed 29.122 grams (approximately one ounce). Cocaine is a controlled drug under the Criminal Code Regulations 2005 (ACT).

(b) $101,900 in cash, including more than $75,000 in a black zip-up bag. The currency was bundled with rubber bands. DNA analysis of the rubber bands identified a minimum of three contributors, including the offender.

(c) Two vacuum sealers and empty sealable bags.

(d) A knuckle-duster that was located on the top shelf of the computer desk. Knuckle-dusters are a prohibited hand weapon under sch 1 pt 1.2(1) of the Prohibited Weapons Act 1996 (ACT).

6. Given the nature of the prohibited weapon and that there was no evidence concerning its past or intended future use, this was a relatively minor offence.

7. In determining the objective seriousness of this offence, guidance can be obtained from Bui v The Queen [2015] ACTCA 5 at [41], where the Court set out the principles identified in the authorities for sentencing drug traffickers. Although, in Bui, the Court was dealing with offences under different legislation, the principles are generally relevant for present purposes.

8. The amount of the drug in question is important to an assessment of objective seriousness. The subject offence does not relate to a particular minimum or maximum quantity of drugs. Larger quantities of drugs are commonly dealt with under different provisions.

9. I accept the prosecutor submission that the quantity of drugs in this case was "not insignificant". The parties agreed that cocaine is not uncommonly sold in 1 gram lots; the quantity of 29 grams of cocaine equated to 29 street level deals. If the whole 29 grams had been sold at the agreed minimum street value of $200 per gram, the 29 grams would have achieved a total price of $5,800.

10. However, the offender himself had a significant substance abuse problem: he consumed about 3 grams of cocaine per day. It is likely that a large part of the drugs would have been consumed by him.

11. Another consideration that is relevant in assessing the objective seriousness such an offence is the motivation for the offence. Initially, the offender had been motivated to sell cocaine in order to fund his own problematic use of cocaine. However, the enterprise escalated well beyond what was required for that purpose. The evidence established a significant selling enterprise: the police found a cutting agent and vacuum sealing machines and bags that were suitable for cocaine deals.

12. The offence related to one day only (the day of the search).

13. The offence was of some objective seriousness but not a high level of seriousness.

14. As noted above, the maximum penalty for the offence is five years imprisonment, a relatively low maximum penalty.

16. In assessing the objective seriousness of the offence, it is relevant to consider the purpose and nature of the dealing. Dealing can involve a number of activities. In this case, the dealing was the possession of monies on one day.

17. Another relevant factor is the nature of the proceeds of crime, as defined under s 114A of the Crimes Act. Proceeds of crime is defined to include property derived or realised, directly or indirectly, from the commission of an offence. In this case, the inescapable inference is that the cash was derived directly from the commission of a serious offence, being the offence of selling drugs, probably cocaine.

18. The value of the proceeds of crime is an important consideration when determining the objective seriousness of the offence. Unlike provisions in some other jurisdictions, the ACT offence provision does not reference penalties to the value of proceeds of crime. The amount of proceeds that can be the subject of the offence is open-ended. However, on any view, the value of $101,900 was high.

19. Although the offence was constituted by the offender possessing proceeds of crime on only one day, his possession of the proceeds of crime must be considered in context. The position was not transitory. The circumstances of the possession were more permanent.

20. Consequently, I consider this offence to be an offence of substantial objective seriousness.

21. At the time of the offences, the offender was 34 years old.

22. While not minor, his criminal history, is relatively insignificant. In 2001, he committed offences of assault occasioning actual bodily harm (for which he was fined $3,000) and failing to comply with firearm storage requirements (for which he was fined $650). In 2014, he committed offences of damaging property (for which he was sentenced to a 12-month good behaviour order) and common assault (for which he received a four-month fully suspended sentence). He has not served a sentence of fulltime imprisonment.

23. The offender is the youngest of three children. He had a stable and supportive upbringing. He remains close to his mother and two older sisters, who provide ongoing support to him.

24. In 2010, the offender's father died of cancer. The offender was devastated by the death as the two had been very close. The offender still experiences overwhelming grief in relation to his father's passing. At about the time of the father's passing, the offender was diagnosed with an anxiety disorder. His general practitioner prescribed Valium, which the offender continues to take as required.

25. The offender has been in a supportive and positive relationship for about two years. His partner describes him as a hardworking, reliable and kind person who is family-orientated.

26. The offender performed well at school and completed Year 12. Later, he obtained a Certificate III as an automotive mechanic. Since 2003, he has been consistently employed as a motorcycle mechanic. Recently, he changed his place of work. In his new workplace, he is a valued employee.

27. Since 2004, the offender has used cocaine. However, his cocaine use escalated dramatically after the 2010 death of his father. The offender has stated that following his 2012 convictions, he was required to undertake drug abuse counselling and he ceased cocaine use. However, some years later he relapsed into cocaine use when he began to fraternise with an antisocial peer group.

28. That statement does not sit comfortably with other reports, which suggest that the offender has had a significant cocaine problem since the 2010 death of his father. The offender reported that he had overdosed on cocaine in 2011, 2013, and 2014.

29. Nevertheless, by any account the offender has a longstanding problem of cocaine abuse. He was using 3 grams of cocaine daily prior to the offences. At the time that police executed the search warrant, he was in New Zealand on holiday with his girlfriend. The couple had gone there in an attempt to facilitate the offender making a clean break from cocaine use. He also stated to the authors of the CADAS report that had he not been arrested, he probably would have continued to use cocaine.

30. The offender's principal problem drug is cocaine and, to some extent, alcohol; but he has used a variety of drugs over the years, including methamphetamine and ecstasy. The authors of the CADAS report observed that the offender had described symptoms consistent with cocaine use disorder that had been in remission for some months.

31. The offender has undertaken counselling through Converge International, completing the maximum number of subsidised sessions. He sought more sessions, but they were not made available to him.

32. Through the agency of CADAS, the offender was referred to Directions ACT to seek further counselling for substance abuse. He has been triaged by Directions ACT and is awaiting an appointment for further treatment.

33. Although there is no psychological or psychiatric report before the Court, a number of sources refer to the offender's difficulties with depression, anxiety, and grief in relation to the death of his father, and associate those conditions with the offender turning to drug use in an attempt to self-medicate.

34. In relation to general psychological issues, the offender engaged with EveryMan Australia, undertaking their behavioural change program between May 2016 and May 2018.

35. One of the referees described the offender as quite an emotional person and, inferentially, as someone who might behave impulsively at times because of his mental state.

36. The referees referred to the fact that the offender has expressed remorse and painted a picture of a person who, when this matter came to light, confronted difficult issues and has been attempting to turn his life around. For example, he has returned to gym training and is focusing on his physical fitness as a means of recovery.

37. Referees described the offender as a wonderful uncle to his nieces and nephews, close to his grandmother who suffers from dementia, and someone who willingly supports family members and friends when that is required.

38. Overall, the offender impresses as someone who has taken his problems to heart. He has had the maturity to voluntarily seek treatment and is committed to rehabilitation. I am confident that he is capable of rehabilitating himself, particularly given his own maturity and the support that he enjoys.

39. The offender's legal representative provided a helpful table of cases that were said to be comparable.

40. In relation to the offence of money laundering, I was referred to R v Lang [2018] ACTSC 215 and the Crown referred me to the decision of R v Toumo'ua [2016] ACTSC 163.

41. I was also taken to the sentencing statistics in relation to the offences of money laundering and possession of a drug of dependence for sale. The limitations of statistics are well-known and, in the ACT, the limitations are even greater because of the very small sample of cases available for most offences, including those before the court.

42. In sentencing the offender, the Court is required to take into account the matters referred to in s 33 of the Sentencing Act insofar as those matters are known and relevant. I believe I have referred to the relevant matters.

43. The s 7 sentencing purposes that are relevant in this case include punishment, general deterrence, protection of the community, accountability, denunciation, and recognition of harm to the community.

44. The sentencing purpose of rehabilitation is also very important, particularly as I am very confident that the offender will take advantage of opportunities for rehabilitation that are offered to him.

45. The Crown submitted that the only appropriate sentence was a sentence that involved a period of fulltime imprisonment.

46. The offender's legal representative conceded that the only appropriate sentence was one of imprisonment but submitted that, as the offender was "at a crossroads in his life", any sentence could be fully suspended and combined with a requirement to undertake community service work to address sentencing purposes such as punishment and general deterrence.

47. I have concluded that the objective seriousness of the offences and the associated sentencing purposes, particularly in relation to the offence of money laundering, are such that it is necessary for the offender to spend a period in fulltime custody.

48. However, I also consider that rehabilitation is a prominent sentencing purpose, I propose to impose a sentence that is partly suspended, thereby ensuring that the offender will spend the minimum period in custody that is necessary to address sentencing purposes such as general deterrence.

49. I will allow a high degree of concurrence between the sentences imposed for possession of cocaine and for money laundering, because the offences were committed on the same day and were closely related.

50. The offender is convicted of all offences and sentenced as follows:

(a) Possession of prohibited weapon - fine of $750.

(b) Possession of cocaine for sale - nine months' imprisonment, reduced from 12 months' imprisonment for the plea of guilty, from 20 August 2019 to 19 May 2020.

(c) Money laundering - 19 months' imprisonment, reduced from 24 months' imprisonment for the plea of guilty, from 20 September 2019 to 19 April 2021.

51. The total sentence is 20 months' imprisonment, from 20 August 2019 to 19 April 2021.

52. Pursuant to s 12 of the Sentencing Act, I make a suspended sentence order suspending the sentences after the offender has served five months' imprisonment, from 19 January 2020. The remaining period of the sentences is 15 months.

53. I make associated good behaviour orders for a period of 18 months, from 19 January 2020. The good behaviour orders are subject to the condition that the offender reports to Community Corrections within two working days of release, and submits to the supervision of Community Corrections for as long as the service deems appropriate.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.