R v Daquinta [2014] ACTSC 131

6. Daniel Daquinta be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today with a probation condition that he be subject to the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person delegated to supervise him considers it appropriate, and obey all reasonable directions of the person delegated to supervise him.

1. The reason why members of our community succumb to drug addiction are quite diverse, but the destructive effects of such addiction remain the same, causing havoc and real suffering to families and communities. For this reason and, rightly, the parliaments of our nation have shown, by the severe penalties they set for trafficking in illegal drugs, that the courts must use their sentencing powers to show how unacceptable such behaviour is and to try and stop it.

2. Daniel Daquinta has pleaded guilty to one count of trafficking in methylamphetamines between 5 March 2013 and 20 May 2013. That is an offence against s 603(7) of the Criminal Code 2002 (ACT) which makes him liable to a maximum penalty of 1,000 penalty units (that is, a fine of $110,000) or imprisonment for ten years, or both.

3. That is a severe penalty and the courts are required to have regard to that mark of the seriousness of the offence when imposing the sentence. See Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353 at 364. As the Court there noted, however, that is a prima facie position and the Court must have regard to the precise circumstances of the case.

4. In addition, Mr Daquinta has asked that I take into account four other offences, being:

• possession of a tablet press, an offence against s 614A of the Criminal Code, for which the maximum penalty is 200 hundred penalty units (that is, a fine of $22,000) or two years' imprisonment, or both;

• unlawful possession of stolen property, being $200 cash, an offence under s 334 of the Criminal Code attracting a maximum penalty of 50 penalty units (that is, a fine of $550) or imprisonment for six months, or both; and

• two counts of possessing declared substances, one being sibutramine, the other being baclofen, an offence against s 36 of the Medicines Poisons and Therapeutic Goods Act 2008 (ACT), for which the maximum penalty is 200 penalty units (that is, a fine of $22,000) or imprisonment for two years, or both.

5. I satisfied myself, under s 57 of the Crimes (Sentencing) Act 2005 (ACT), that Mr Daquinta wanted me to take those offences into account, and being satisfied that he did so I will take them into account in the way required by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]- [50].

6. Mr Daquinta was involved in the selling of methamphetamines. Police had him under surveillance for some two months and had, under warrant, intercepted a number of telephone conversations between him and others on one of two mobile phones he had in his possession, but under false names for the purpose of his trafficking.

7. Mr Daquinta met a man on 20 May 2013, following an arrangement made by telephone, and supplied him with some speed for which he was paid either $100 or $200. Police later intercepted the purchaser and he made a statement in which he admitted that Mr Daquinta had sold him the speed and had been selling him speed for about eight months. He also admitted that he had purchased $200 worth of the substance on that day.

8. Police then executed a search warrant on Mr Daquinta's house and located a bag containing one hundred clear capsules of green and white powder which was subsequently analysed to contain sibutramine, caffeine and baclofen. Police found and seized other items from a shed in the rear yard, namely the tablet press, the subject of one of the counts on the list of additional offences; further green and blue powder in the hopper of the press, later determined by analysis to be sibutramine, caffeine and baclofen; a snap lock bag containing crystalline powder, later analysed to be methylamphetamine; a metal thermos containing loose powder, later determined to contain methylamphetamine, amphetamine and pseudoephedrine; a large square plastic container containing green and white powder later analysed to contain baclofen, sibutramine and caffeine; and a glass ice pipe.

9. The police also seized items from the motor vehicle there, including a plastic snack box containing an orange crystalline substance later determined to contain methylamphetamine, amphetamine and pseudoephedrine; three bags containing blue capsules of white powder substance which were later determined to be baclofen, sibutramine and caffeine; another bag containing gelatine crystals analysed to contain methylamphetamine, amphetamine and pseudoephedrine; a bag containing ten brown tablets, later determined to be methylamphetamine; and a set of silver electronic scales.

10. I was also shown a transcript of a number of telephone calls intercepted by police, and they showed that Mr Daquinta was involved in an ongoing operation supplying drugs to a number of persons. Mr Daquinta was arrested. He was remanded in custody but later granted bail. He breached that bail on two occasions, but has remained on bail until now, although he has spent eight days in custody.

11. He initially pleaded not guilty on 21 May 2013, when he first appeared in the Magistrates Court, but, after eleven appearances in that Court, he pleaded guilty at the case management hearing on 12 December 2013. He was, however, committed to this Court for sentence. The plea was a relatively early plea but, of course, the case against him was a very strong one.

12. Mr Daquinta was born twenty-eight years ago in Canberra. He grew up in a stable family environment, though there has been some coolness between him and his parents. He was schooled in Canberra and left formal education in Year 11, having completed Year 10, to commence a brick laying apprenticeship, which he completed in 2007. He maintained employment firstly with a local brick and block laying company for seven years and then a construction company for two and a half years. His employment with the latter company ceased in personal circumstances that I will mention later. He has since then been unemployed.

13. Mr Daquinta has not experienced any alcohol issues. He has, however, smoked cannabis in his early years, but has not smoked for the last six years. His general health has always been good but more recently, in circumstances I will mention in a moment, he has experienced significant emotional distress.

14. Mr Daquinta is married and has children with his wife. His first two children were [redacted] and his first son was born in November 2011. Unfortunately his son was born prematurely at twenty-five weeks due to a placental abruption and he weighed a tiny nine hundred and thirty grams. Within hours of his birth, his doctor told his parents that he had a ninety percent chance of not surviving that night. In fact, he was a little fighter and continued to battle for life for nineteen days. Unfortunately and unsurprisingly, he ended up with a lot of medical problems, the most severe requiring bowel surgery which went well, but the anaesthetic and the surgery obviously were more than his little frame could handle and he passed away after nineteen days.

15. For Mr Daquinta, life then spiralled out of control. He felt that drugs gave him some relief but he passed from a mere physical addiction to a full-blown drug addiction. He had, of course, ceased his employment, which he was unable to continue with his drug addiction and this put enormous pressure on his finances and, of course, on his family. In order to address this and continue to accessing his drugs, he became a trafficker and supplied drugs in the circumstances that I have already outlined. He clearly built the trafficking up to a significant level, although I would not class him as a very substantial drug dealer.

16. There has grown up a kind of taxonomy of the offence of supplying illicit drugs or trafficking, initially developed by Fiori Rinaldi in the seminal text Drug Offences in Australia Volume 1 Sentencing (1986, Lawbook Co: Sydney) p 150-176. That process has been further refined by Peter Zahra et al in Drug Laws in New South Wales (2014, 3rd ed, Federation Press: Annandale) which described a hierarchy of participants. Important in that taxonomy was the point in the chain where the participant was as to how far up the chain the offender was and the seriousness of the offence.

17. In a slightly different but similar context of importation Badgery-Parker J said in Shore v The Queen (1992) 66 A Crim R 37 at 43:

It is necessary in every case to look at what precisely the evidence shows to have been the criminal conduct constituting the offence for which the particular person is to be sentenced. Subject to the principles established in De Simoni [1981] HCA 31; (1981) 147 CLR 383; 5 A Crim R 329 it is appropriate for the sentencing judge to attempt to place the criminal conduct in its context because it is only in its context that its true gravity can be assessed. There is a significant difference between the criminality of the person who does no more than physically transport the drug from one country to another and the criminality of the person who organises that transportation.

18. The other issue is the question of what might be called "need versus greed". That a person who is an addict and who supplies drugs to enable him or her to gain the drug to which they are addicted, is often said to amount to a matter of mitigation, although the courts have not always agreed.

19. In Yenice v The Queen (1994) 72 A Crim R 234, Hunt CJ at CL with whom Dunford and Blanch JJ agreed said (at 240):

What is submitted is that the judge failed to give sufficient weight to the fact that as a user dealer, rather than a trafficker for greed, the applicant was (as it was put) "at the lower level of criminality". Reliance was placed in what I said in Tulloh (Unreported, Court of Appeal, NSW, 16 September 1993) at p 2, but what I said there was not that such an offender was at the lower level, but that he was at a lower level than the trafficker for greed and I went on to point out that every case will depend on its own circumstances.

20. I respectfully agree. It is clear that Mr Daquinta was an addict and the amounts that he sold were of the amounts that would be regarded as a user dealer, perhaps a little above a street level dealer. While he remains a serious offender, it is less serious than those who are significantly involved higher up the chain.

21. When arrested, the pill press found in the shed at Mr Daquinta's home shows that Mr Daquinta was moving onto a new phase in his operation even if, as he says, and I do not discount it completely, he had only borrowed it for a short time, it shows a likely escalation of his activity. He is perhaps lucky that the police intercepted him at the time that they did and prevented him from getting into much more serious activity for which the likelihood of some leniency would be more remote.

22. Before pleading guilty Mr Daquinta, however, entered rehabilitation in Foundation House. That is a twenty-eight day residential program based on the Minnesota Model of Recovery, being a therapeutic community environment which encourages abstinence from all substances and also adheres to the principles of Twelve Step Fellowship.

23. In a letter to the court from Foundation House, it reported:

Throughout his treatment, Daniel was an enthusiastic and willing participant and sought out information and education regarding underlying issues of substance dependence. He grasped the concept of substance dependence as a disorder as described in the DSM V (Diagnostic Statistical Manual). In counselling sessions, Daniel was able to understand that he had inadequate coping skills in order to process the loss of his son and self medicated his emotions with drugs.

24. At the conclusion of that program he then moved to Glebe House. I had an interim report dated 29 March 2014 in which it said:

Daniel is making remarkable progress in treatment at Glebe House. He is participating in all aspects of the program with commitment and enthusiasm. Daniel has been proactive in several areas including joining a 'home support group' and obtaining a sponsor. He attends regular meetings of Alcoholic Anonymous and also Gamblers Anonymous.

Mr Daquinta completes the residential component of the program on 4 April 2014. He has the opportunity to continue in treatment as an outreach client of Glebe House taking advantage of our indefinite after care service which includes ongoing one-on-one counselling and participation in our relapse prevention and peer support group on a weekly basis.

25. Having worked for some time in an industry that experiences tremendous heartache and low success rates, the author continued:

[I]t gives me a great sense of satisfaction to work with someone like Daniel who has become more aware of the need for self honesty in his life and is able to make the most of the help our service offers.

While in treatment he is showing a willingness to address the issues that resulted in his decline into addiction and subsequent criminal behaviour. He genuinely wants a better life to date. To this end he is learning new coping strategies and is becoming a more responsible, generous member of our, as well as the broader community.

Clearly, Mr Daquinta has made significant efforts to establish a foundation for a solid recovery and has gone a long way towards exploring his underlying emotional issues. He is also adopted strong, healthy strategies to manage his life going forward. I would like to respectfully recommend the court exercise leniency in this matter and afford Daniel the opportunity to continue his recovery in the community.

28. This has been supported by the Court Alcohol and Drug Assessment Service (CADAS) which noted that:

Positive reports have been received regarding Mr Daquinta's progress and commitment to his recovery. Mr Daquinta completed the three month program at Glebe House at the beginning of April which included participation in group program, seeing 2 psychologists a week and attending a minimum of 13 12-Step Program meetings a week.

Since his return [I assume to Canberra] Mr Daquinta has continued counselling with [a] psychologist with a Counselling and Treatment Service (CTS) at the Alcohol and Drug Service (ADS). He has attended sessions on 7th and 14th April 2014. He intends to continue with this past the Court's requirement for him to do so. He also intends to maintain attendance at 12 Step Fellowship meetings in Canberra.

Mr Daquinta has utilized his opportunity to engage in treatment well and has made significant progress in addressing his AOD use and his personal development.

30. The Pre-Sentence Report author also expressed a positive opinion. The author said:

Mr Daquinta is a 28 year-old man who, until the death of his infant son in 2011, had lead a predominantly pro-social life, working and providing for his family. It would appear that significant Methylamphetamine abuse over a two-year period is directly linked to his offending behavior.

Mr Daquinta has the benefit of a supportive relationship with his wife and has recently become a father for the third time. He has demonstrated a strong commitment to addressing his primary risk factors for further offending, being substance abuse and grief and loss trauma. Mr Daquinta is considered a low to medium risk of re-offending.

31. Nevertheless, this is a serious offence. The offence discloses a significant operation, though at a relatively low level, and still broadly to feed his habit. The offence that has been created by the legislature is part of an attempt to respond to the social evil that drug addiction causes with the lives of addicts being damaged, often irreparably, sometimes even ending in death from overdoses and the diseases associated with drug taking and often other members of society, particularly family, being prayed upon for resources to pay for the addiction to be fed and also to manage the psychological fallout.

32. The Court of Appeal accepted in Lawrence v The Queen [2007] ACTCA 10; (2007) 171 A Crim R 286 at 288, that Crispin J had accurately said that "drug dealing is a blight upon the Australian community". General and personal deterrence play a significant part in any sentence for such an offence.

33. Nevertheless, in this case, it does not seem to me that specific deterrence will be so significant given the commitment that Mr Daquinta has made to his rehabilitation, a commitment that he has also made to his family. It seems to me that a sentence of imprisonment becomes inevitable, but the precise circumstances of the offence and the personal circumstances of each offender are critical in determining how this is to be served.

34. Mr M Thomas, who appeared for the prosecution, properly submitted that there was a level of sophistication in this operation which had been established by Mr Daquinta, notwithstanding the surveillance for about two months. He accepted that he was not, to use his words, a "drug lord". He was not, by the same token, a low level street level user dealer. I have assessed his culpability above (at [15]-[20]).

35. There are significant elements of planning and organisational preparation and administration involved in the operation. Mr Thomas submitted that general deterrence must therefore play a significant part. I accept that that is so.

36. I take into account Mr Daquinta's plea of guilty; though not made at the earliest time, it was relatively early and saved the administration of justice significantly and entitles him to a discount, even though it was in the face of a strong prosecution case.

37. I accept that Mr Daquinta is remorseful. I am not sure that he has a complete insight into the seriousness of the offending, but I am satisfied that his remorse is much more than simply self-pity for the plight in which he finds currently himself.

38. I have set out his subjective circumstances above and I take them into account. I note that he is very fortunate to have a very supportive wife and has children of whom he is obviously very fond. They are a strong motivator to keep him on the drug-free path.

39. I take into account the objective seriousness of the offence as I have described it. I also take into account the offences in the list of additional offences. I have been provided with a range of comparable cases. These include R v Avis, Bonifini and Pyke (Unreported, ACTSC, Refshauge J, 2 October 2009); R v Stott (Unreported, ACTSC, Refshauge J, 24 October 2011), R v Louis (Unreported, ACTSC, Nield AJ, 28 October 2010) R v Klobucar (Unreported, ACTSC, Penfold J, 19 September 2013) and R v Holmes (Unreported, ACTSC, Penfold J, 3 May 2012). They are helpful but they show that one must start from the premise that a sentence of imprisonment is the usual outcome for such an offence.

40. I accept that there are strong explanations for Mr Daquinta's drug use and that he has made, and before he entered a plea of guilty, very significant and successful efforts at rehabilitation. I accept that those efforts are likely to continue and I will ensure, to the best I can, that they do. I note that the Crown does not press for immediate full-time custody in the light of these circumstances.

41. I note that Mr Daquinta has been assessed as suitable for a community service work condition to a good behaviour order and that work is available. I note also that he has been assessed as suitable for periodic detention and signed the necessary undertaking.

1. I convict you of trafficking in methylamphetamine between 5 March 2013 and 20 May 2013.

2. I sentence you to thirty months' imprisonment to commence on 17 April 2014, taking into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to thirty-six months' imprisonment.

3. I set the period from today to 23 October 2014 as a period during which the imprisonment should be served by periodic detention.

4. I set the first period of periodic detention to commence on Friday 2 May 2014, when you must present yourself at 7:00 pm at the Symonston Periodic Detention Centre.

5. I suspend the sentence on 24 October 2014, for a period of two years.

6. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today with a probation condition that you be subject to the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person delegated to supervise you considers it appropriate, and obey all reasonable directions of the person delegated to supervise you.

43. [His Honour then spoke directly to Mr Daquinta]

44. Mr Daquinta, that is the formal order that I have made and I need to explain that to you. Basically, I have said that, had you not pleaded guilty, had you not had a real explanation for your drug use and had you not rehabilitated yourself, I would have sentenced you to full-time imprisonment for at least thirty-six months. I have reduced that to thirty months for your plea of guilty and I do not require you to spend any time in full-time custody, but I do require you to spend six months in weekend detention between now and near the end of October.

45. You should understand that periodic detention is obviously easier than full-time detention, but it is still quite hard. It is every weekend from Friday afternoon to Sunday afternoon. If you fail to turn up or if you turn up drug affected or alcohol affected or if you turn up late, then you can be sent away. Those missed periods of detention are then added at the end if you have been sent away. However, if you miss two periods or are sent away for two periods, then automatically the balance of the term has to be spent in full-time custody, so there is a big obligation on you to do that.

46. I hope that that manages to allow you to obtain employment although I am aware that in the building industry that may provide some difficulty in the short term and I have moderated the period of periodic detention because of that. I have suspended the sentence after that and made a good behaviour order. That means that you do not have to spend any more time in custody, but I have made one condition and that is a supervision condition. That is a degree of control, but it is also the opportunity, if things do get out of control again, that there is someone independent who is knowledgeable and can provide you with advice and suggestions about how to resolve any difficulties and you should look upon those people in that light.

47. If you commit any further offences that are punishable by imprisonment, you can be brought back to me for a breach of that order and I can re-sentence you, which includes the possibility of sentencing you to gaol. If you fail to comply with any of the directions that are given by the probation officer, you can also be brought back and I can re-sentence you which includes the possibility of going to gaol.

48. Mr Daquinta, no one can be human and not empathise with the extraordinary tragedy that you suffered. Your response to that, you now know, was extremely inappropriate. It not only put you and your liberty at risk but it also must have put enormous, unfair pressure on your family. You have now taken the ball and you have run with it. You have done very well and I have moderated the sentence accordingly and very substantially. I hope that the courts will never see you again. I wish you and

your family the best for the future and I hope that you and your family make a valuable contribution to our community.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Applicant: ACT Director of Public Prosecutions