R v Conomos [2019] ACTSC 183

Sentenced to a total of 21 months' imprisonment to be served by way of intensive correction in the community.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Trafficking in methylamphetamine - Trafficking in a trafficable quantity of cannabis - Parity with co-offender - Where the offender has no criminal history - Where the offender has strong prospects of rehabilitation and mental health problems - Where an intensive corrections order is appropriate

Crimes (Sentencing) Act 2005 (ACT) ss 11, 33, 36

Prohibited Weapons Act 1996 (ACT) s 5

1. The offender pleaded guilty to the charges that, on 4 January 2017, he was knowingly concerned in:

(a) Trafficking in a controlled drug other than cannabis, being methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code); and

(b) Trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code.

2. Criminal responsibility is attributed to the offender by virtue of s 45 of the Criminal Code.

3. Both offences carry a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both.

4. The trafficable quantity of methylamphetamine is six grams and the commercial quantity is three kilograms. A maximum penalty of 25 years' imprisonment applies in relation to the commercial quantity. The trafficable quantity of cannabis is 300 grams and the commercial quantity is 30 kilograms. A maximum penalty of 25 years' imprisonment applies to the commercial quantity.

5. The offender offered to plead to the relevant charges at a criminal case conference. Later, the Crown agreed to accept the pleas in full satisfaction of all charges. The pleas were entered after the trial date had been fixed, but that is far less important than the fact that the pleas were offered prior to the fixing of a trial date. The appropriate s 35 discount is in the range of 15 to 20 per cent, probably towards the upper end of that range.

6. The offender spent one night in custody in relation to these matters.

7. The offender lived with his son Corey Conomos (the co-offender) at a house in Calwell (the residence). On 4 January 2017, police attended the residence in response to a reported disturbance. They obtained a search warrant. On searching the premises, they found the following items:

(a) 2.194 kilograms of cannabis;

(b) 319 grams of methylamphetamine;

(c) electronic scales;

(d) multiple clip seal bags;

(e) a bottle of acetone, face masks, and coffee filters; and

(f) a sum of almost $19,000.

8. The co-offender's fingerprints were found on the bags containing the methylamphetamine and cannabis and on the bottle of acetone.

9. On 26 September 2018 the co-offender participated in a digital record of interview with police. He admitted that the drugs seized during the search belonged to him and that he had been selling the drugs for money pursuant to an ongoing commercial arrangement involving a drug syndicate. The co-offender said that he employed runners to sell the drugs at street level. He provided significant assistance to police.

10. The offender was knowingly concerned in the co-offender's drug trafficking by virtue of making the jointly occupied residence available for storage and concealment of the drugs and allowing the co-offender to traffick drugs from the residence.

11. On 29 November 2018, the offender participated in a record of interview in which he agreed to give evidence, should that be required.

12. The value of the drugs is unclear in that there is no information about whether the drugs would have been sold in very small quantities or larger quantities. Suffice it to say that, in relation to the cannabis, the quantity that was located was approximately seven times the trafficable quantity. The street value of the cannabis (had it been sold at street level, and neither the offender nor the co-offender would have done so themselves) would have been considerable - at least $15,000. In relation to the methylamphetamine, the value to the co-offender of the drug would have been some tens of thousands of dollars, although at the street level the value would have been much higher.

13. As the offender and the co-offender used drugs (the offender used cannabis), not all the drugs in the possession of the co-offender would have been sold.

14. The co-offender was convicted on 23 January 2019 of two charges, each of which was committed on 4 January 2017.

15. The first offence was trafficking in a controlled drug contrary to s 603(7) of the Criminal Code; this offence captured several types of drug, primarily methylamphetamine, but also cocaine and MDMA. There was no separate charge of trafficking in cannabis, but the Court was asked to take into account, as a scheduled offence, the offence of trafficking in cannabis contrary to s 603(5) of the Criminal Code.

16. The second offence of which the co-offender was convicted was possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), the weapon being a taser. The seriousness of that offence was much less than that of the principal offence of trafficking in a controlled drug.

17. The co-offender pleaded guilty in the Magistrates Court at a very early stage, and agreed to cooperate.

18. When the co-offender came before Burns J on 23 January 2019, he had been in custody since his arrest on 22 April 2018 (a period of nine months). He was 18 years old at the time of the offences, had no criminal history, and was a drug addict with mental health problems.

19. On 23 January, his Honour stood the proceedings over to 15 July on a deferred sentence basis to enable the co-offender to travel to Queensland to reside with his mother and undertake drug rehabilitation and mental health treatment. His Honour indicated that he was minded to impose a head sentence of three to four years. The parties anticipate that the nine month period that the co-offender has already served in custody will be taken into account as part of the three to four year period. Burns J indicated that it was likely that the remaining portion of the head sentence would be suspended if the co-offender was achieving success with rehabilitation.

20. In relation to the objective seriousness of the matters before me, the offences relate to one day only rather than a longer period, but they were not isolated events.

21. The offender stated that he did not know the quantity of drugs in question (i.e. the precise quantity of drugs) because his role was passive; he was not directly involved on any particular occasion with the drugs. I accept that the offender did not know the precise quantity of drugs in question, but he would have understood in general terms the scale of the co-offender's operation. In any event, it is relevant to consider the quantity of drugs that was involved. I have referred above to the quantity in the context of the trafficable and commercial quantities for those drugs and the value of the drugs to the co-offender.

22. As mentioned, the offender's role was to facilitate the drug operation in which his son, the co-offender, was involved. The role of the co-offender in a drug supply hierarchy was one above that of a street dealer; above him, there were several levels within the hierarchy. However, the co-offender did play a critical role in drug supply, and it was a significantly greater role than that of a street dealer.

23. The role of the offender was significantly less than that of the co-offender. The offender was a facilitator who was not directly responsible for the supply of drugs. His role was passive rather than active. There is no evidence that he took an active role in the sale of drugs. Unlike the co-offender, there is no evidence of financial gain by the offender, either direct or indirect via, for example, the payment of board. At the time of the offences, the offender was employed in a relatively well-paid position.

24. When indicating the sentence that was appropriate for the co-offender, Burns J no doubt had in mind that the co-offender was a very young man at the time of the offences, and that he had spent nine months in custody - a very significant period in a young person's life. Like the offender, the co-offender suffered from mental health difficulties. The co-offender, like the offender, entered pleas of guilty and offered very significant assistance.

26. Apart from a drink driving offence committed in 2018 in NSW, which is of minimal significance to this sentencing exercise, he has no other criminal history.

27. The offender is the older of two children. He had a positive childhood, although there was some instability as the family frequently moved due to employment demands on the offender's father. The offender maintains good relationships with his parents, both of whom reside interstate.

28. After completing Year 12, the offender studied information technology, and he maintained good employment in that field until April 2018, when he was charged with the present offences. Recently, he obtained casual work as a removalist. He hopes to increase his working hours to enhance his financial position.

29. The offender was a social drinker until his mid-twenties, when he began to abuse alcohol. His alcohol abuse persisted for two years, until the offender sought professional help. Currently, he drinks a couple of standard drinks daily. The authors of the pre-sentence report assessed the offender as at moderate risk of alcohol abuse.

30. The offender used cannabis irregularly until 2015, when he began to smoke daily, probably in an attempt to self-medicate for feelings of anxiety and depression. After he was charged, the offender sought assistance in relation to cannabis use.

31. Soon after the offences, later in January 2017, the offender was admitted as an inpatient to the Canberra Hospital because of depression and anxiety. On 18 July 2017, he was diagnosed with bipolar affective disorder. Currently, he is subject to a mental health care plan, which is overseen by his general practitioner. He is treated with a variety of prescription medication. The offender believes that his mental fragility as at January 2017 contributed to the fact that he did not object to the co-offender's drug dealing. The offender indicated to the authors of the pre-sentence report that, with the benefit of hindsight, he should have been more insistent that the co-offender cease his activities. The offender is embarrassed and ashamed of his actions.

32. The offender was assessed as at medium/low risk of general re-offending.

33. Sentencing purposes such as general deterrence, personal deterrence, accountability, denunciation, and recognition of harm to the community are very important considerations. Almost any supply of drugs to the community involves many people playing a role at various points leading to the ultimate transaction, and the provision of a facility from which drugs can be supplied and a drug operation can be conducted is integral to any such operation.

34. Rehabilitation is an important consideration in this matter as, at 38 years of age, the offender has no other significant criminal history, and he suffered from a mental health problem at the time of the offences.

35. I have reviewed the sentencing statistics in the ACT. Although they are of limited assistance, they do provide a rough indication of what the courts have done in other cases. I have not been referred to any comparable cases.

36. Section 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) sets out sentencing considerations that are to be taken into account, insofar as they are known and relevant. I have taken into account relevant matters. They are dealt with above.

37. I was referred to s36 of the Sentencing Act. I have taken into account the considerations relating to the application of that provision. The provision has informed both the extent of the discount and the manner in which I will direct that the sentence be served.

38. On 13 May 2019, I indicated the sentence that I intended to impose and ordered that an Intensive Corrections Order Assessment Report (ICOAR) on the offender.

39. The ICOAR was favourable to the offender. I have considered the matters that relate to the imposition of an intensive correction order. The order will involve close supervision of the offender, some inconvenience to him, and will support rehabilitation, enabling the offender to address mental health and drug abuse issues.

40. I convict the offender of the offences and impose the following sentences:

(a) For the offence of trafficking in a controlled drug, being methylamphetamine, 17 months' imprisonment, reduced by about 30 per cent from a sentence of 24 months' imprisonment, to be served from 9 November 2019 to 8 April 2021.

(b) For the offence of trafficking in a trafficable quantity of cannabis, eight months' imprisonment, reduced from 12 months' imprisonment, to be served from 9 July 2019 to 8 March 2020.

41. The total sentence is 21 months' imprisonment, from 9 July 2019 to 8 April 2021.

42. Under s 11 of the Sentencing Act, I order that the whole of both sentences be served by way of intensive correction in the community.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.