R v Davidson [2018] ACTSC 227

[2018] ACTSC 227

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - receiving stolen property - trafficking methylamphetamine - trafficking MDMA - trafficking heroin - trafficking cocaine - transfer charges - possession of ammunition - dealing in the proceeds of crime - pleas of guilty - extensive psychiatric history - objective seriousness of offence of receiving stolen property - whether reasonable prospects of rehabilitation - whether concurrency is appropriate with respect to drug trafficking offences

Crimes Act 1900 (ACT) s 114C

Firearms Act 1996 (ACT) s 249

Supreme Court Act 1933 (ACT) s 68E

SCC 28 of 2018; SCC 29 of 2018

1. Nathan Davidson, you appear before me today for sentence with respect to five offences: an offence of receiving stolen property contrary to s 313 of the Criminal Code 2002 (ACT) (Criminal Code); an offence of trafficking methylamphetamine contrary to s 603(7) of the Criminal Code; an offence of trafficking MDMA contrary to s 603(7) of the Criminal Code; an offence of trafficking heroin contrary to s 603(7) of the Criminal Code; and an offence of trafficking cocaine contrary to s 603(7) of the Criminal Code. Each offence carries a maximum penalty of 10 years' imprisonment, a fine of $150,000.00, or both.

2. In addition, I am to sentence you with respect to two offences transferred to this court from the Magistrates Court pursuant to s 68E of the Supreme Court Act 1933 (ACT). The first such offence is one of possession of ammunition contrary to s 249(1) of the Firearms Act 1996 (ACT), which carries a maximum penalty of a fine of $1,500.00. The second is an offence of dealing in the proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT), which carries a maximum penalty of two years' imprisonment, a fine of $30,000.00, or both.

3. With regard to the offence of receiving stolen property, on 30 August 2017 police executed search warrants at your residence on London Circuit in Canberra. Your residence was an apartment which included a secure underground car parking space. During the search of your apartment police located a large number of tools and household fittings in their original packaging with price labels still attached. You told police that you had acquired the property over the years, or you had received them as gifts. You did not have any receipts for any of the property and you told police that you could not remember when or where you had purchased it.

4. Police also located five live shotgun shells in the drawer in your bedroom. In your secure underground car space police located various brand new kitchen appliances, including ovens, a microwave, cooktops and dishwashers. In your vehicle police located various tools, household fittings and kitchen appliances. With respect to the brand new items found in your car space and inside your vehicle you told police that you had purchased some of them recently and others you had accumulated over a period of time.

5. You were placed under arrest for possessing stolen property and conveyed to the ACT Watch House. You were released on bail from the watch house to appear at the Magistrates Court on 8 September 2017. On 20 December 2017 police attended your apartment with search warrants. You allowed police access to your apartment. Police dogs were brought to your apartment and showed interest in your kitchen near the oven area. You showed police how to remove the oven in the kitchen and to lift a board underneath it.

6. Upon removing the board, police observed three shoeboxes, a money safe, a large clipseal bag containing a white crystalline substance and numerous bags of Australian currency. The money safe was opened and four clipseal bags were found inside. The contents inside each clipseal bag was presumptively tested and found to contain a controlled drug. Each controlled drug had a total weight above the trafficable quantity.

7. Police located two clipseal bags containing methylamphetamine. The first bag was found inside the money safe and contained 21 grams of methylamphetamine. The second bag was found in the oven space near the money safe and contained 545 grams of methylamphetamine. The total quantity of methylamphetamine located was therefore 566 grams. The trafficable quantity of methylamphetamine is 6 grams. Inside the money safe police also found a clipseal bag containing pink pills, which proved to be MDMA. A total of 371 grams of MDMA was located. The trafficable quantity of MDMA is 10 grams. A clipseal bag containing 117 grams of heroin was also found inside the money safe. The trafficable quantity of heroin is 5 grams. Police also located a clipseal bag containing 121 grams of cocaine inside the money safe. The trafficable quantity of cocaine is 6 grams.

8. The bundle of Australian currency hidden in the oven space was counted and totalled $60,000.00. Police also located a further sum of $29,980.00 in the freezer. The total amount of currency located in your kitchen was therefore $89,980.00.

9. Police also located a number of unused clipseal bags in a safe in your bedroom, a money counter on the kitchen table in the lounge room and a bowl in the kitchen cupboard containing a white crystalline substance, clipseal bags, a spoon, scales, a bag of Inositol and a bag of caffeine powder. The Statement of Facts notes that Inositol and caffeine powder are substances commonly used to "cut" cocaine and to increase its gross weight. Other indicia of drug trafficking was found in your apartment, including lists of names with figures written next to the names. Those figures ranged from 400 up to 41,250. You declined to answer any police questions regarding the cash and drugs located in your apartment.

10. You entered pleas of guilty to all charges in the Magistrates Court on 23 February 2018, following negotiations with the Crown. At the time that you committed the offences in December 2017 you were on bail for the August 2017 offences. You were also subject to two Intensive Corrections Orders at the time that you committed the 2017 offences. Those Intensive Corrections Orders were imposed by a magistrate on 30 June 2016 for offences of trafficking in cocaine and trafficking in methylamphetamine. For each such offence you were sentenced to 15 months' imprisonment, to be served by way of Intensive Corrections Order. You have a relevant criminal history, including the offences of trafficking in controlled drugs to which I have just referred and offences of possession of property suspected of being the proceeds of crime, possession of ammunition and unauthorised possession of firearms. Your criminal history disentitles you to any significant leniency in sentencing for the present offences.

11. You are 34 years old and you told the author of the Pre-Sentence Report that you were raised in a positive and supportive environment by both of your parents. This is consistent with what you told the author of the Intensive Correction Order assessment in 2016, but differs significantly from what you told the author of a psychological assessment report, Dr Danielle Clout, prepared for the present proceedings. Dr Clout in her report stated that you reported a history of emotional and physical abuse during childhood and severe emotional neglect.

12. You gave evidence at the sentence hearing that you told Dr Clout the truth about your childhood and the description in her report is her description in her words of what you told her. You said that you believed that there was nothing unusual about your childhood when you spoke to the authors of the PreSentence Report and the Intensive Corrections Order assessment. Whilst I have some misgivings about that explanation, I am prepared to proceed on the basis that what you told Dr Clout was the truth.

13. The author of the Pre-Sentence Report notes that you first came into contact with ACT Corrective Services in November 2013 when you were placed on a nine month suspended sentence of imprisonment with a Good Behaviour Order of 18 months with a condition that you perform 120 hours of community service work for an offence of assault occasioning actual bodily harm. You successfully completed your community service work, but you failed to comply with directions given by Corrective Services and your Good Behaviour Order was ultimately cancelled and you were sentenced to three months' imprisonment.

14. You reported having been in a relationship with the mother of your two children from 2003 until 2016. You reported that that relationship is amicable and your former partner regularly visits you with your children. You reported having completed Year 12 prior to undertaking training as a plasterer. You started your own business as a renderer in approximately 2008. While on the Intensive Corrections Order in 2016 and 2017 you consistently advised that you were not undertaking much work but claimed that you would subcontract some small jobs to other businesses.

15. During this period Corrective Services conducted weekly visits to your home. You apparently declined their offers to attend at your workplace and there was no evidence that you had regular employment or income during that period. During that period you also consistently indicated an intention to claim a Centrelink allowance, but usually stated that you had funds left over from your business that you were using to support your family, pay your mortgage and rent, as well as receiving small amounts from subcontracting your work out.

16. You told the author of the Pre-Sentence Report that you currently have no issues with alcohol. You said that you first tried cocaine in your late twenties and your use was initially social. You stated that your use became more frequent and you increased into dependency for approximately six months prior to your arrest for the present offences. You said that following supervision on your Intensive Corrections Orders you returned to regular use of cocaine and by December 2017 you were using up to 7 grams a week at a cost of between $1,000.00 to $2,000.00. You further stated that you were using heroin at this time in an effort to stabilise your mood.

17. I note that you completed the SMART Recovery program whilst remanded in 2016. ACT Health records indicate that you have diagnoses of Bipolar Disorder and Anti-Social Personality Disorder. You told the author of the report that you are currently medicated for these conditions.

18. You told the author of the PreSentence Report that you accepted responsibility for all of the charges. You expressed a wish to leave the ACT upon finalisation of these matters and said that you recognised a need for more structure and purpose in your life. You also indicated a willingness to engage with mental health providers.

19. I note that when you spoke to the author of the Intensive Corrections assessment in June 2016 you also expressed a desire to turn your life around, to remain abstinent from drugs and to continue taking prescribed medication. You said that you had had a lot of time to reflect on your actions and you had engaged in programs offered to you whilst remanded in custody. Despite those statements, it appears that you returned to illicit drug use almost immediately upon the cessation of supervision under the Intensive Corrections Orders and committed further serious offences. I note that the author of the Pre-Sentence Report assessed you as at medium-high risk of reoffending due to your mental health, drug use and other factors.

20. A report from Dr Clout dated 15 May 2018 was tendered. You gave Dr Clout an extensive psychiatric history dating back to your childhood and adolescence. You reported symptoms and behaviour consistent with Attention-Deficit/Hyperactivity Disorder in childhood, including poor concentration, difficulty sustaining attention and engaging in tasks requiring attention, significant distractibility, forgetfulness, failure to follow through with schoolwork, and impulsivity. Dr Clout stated it is possible that these symptoms may have contributed to your early impulse control and behavioural issues.

21. You described depressive episodes which could last for several months commencing when you were about 18 years old. You also reported that during your late adolescence you began experiencing significant difficulties with elevated mood and activity levels. These manic episodes could last between one and three weeks and generally caused significant impairment in occupational, social and behavioural functioning. You said that in 2011 you sought help from a psychiatrist, Dr Saboisky, who diagnosed you with Bipolar I disorder with a rapid cycling presentation. You found it difficult to accept that diagnosis, which resulted in variable engagement by you in treatment.

22. You stated that you hate your depressive episodes and you sometimes used drugs to recreate the feelings you felt in your manic episodes. You reported that shortly after being remanded in custody in December 2017 you were prescribed Lithium, which has made a significant difference to your moods and symptoms. You expressed an awareness and acceptance of your need to engage in intensive drug and alcohol and mental health supports upon release.

23. You told Dr Clout that you began using cocaine out of curiosity when you were about 30 years old. You stated that your use escalated quickly and you began binging on large quantities, often spending several thousand dollars per week on cocaine. You stated that the resulting debt escalated your criminal activity and it became a vicious cycle. You reported not having used cocaine when remanded in custody in 2016 and when you were subject to the Intensive Corrections Orders, but you began using large quantities again in early 2017 and fell into debt quickly.

24. You stated that your escalating drug use and debt again contributed to your criminal activity. You further reported that in 2017 you also began using heroin. You said that you would go on weekly drug binges in which you used large quantities of cocaine, heroin and alcohol. You stated that you have not used any illicit drug since your admission to the AMC in December 2017.

25. Based on the history provided to her and the results of psychometric testing, it was Dr Clout's opinion that you suffer from symptoms consistent with diagnostic criteria for several mental disorders, including Bipolar I disorder, Anti-Social Personality Disorder, Alcohol Use Disorder, and Stimulant Use Disorder. As you have been abstinent from alcohol and drugs since December 2017, both your alcohol use disorder and stimulant use disorder are in early remission. Dr Clout stated that your description of your mental health during 2017 suggests a complex clinical picture associated with marked distress and severe impairment in functioning. The described symptoms of Bipolar I disorder, Stimulant Use Disorder and Alcohol Use Disorder suggest that they fall in the severe category, while your Anti-Social Personality Disorder would likely be classified as moderate.

26. Dr Clout stated that both Bipolar I disorder and Anti-Social Personality Disorder are associated with significant impulsivity and recklessness and a range of cognitive and behavioural disturbances. In addition, you acknowledged that drug and alcohol use negatively impacts your impulsivity and behaviour. It was Dr Clout's opinion that the conditions that you were experiencing played a significant role in your offending behaviour. She noted that you expressed remorse, regret and disappointment in your offending. She further stated you expressed good insight into the probable links between your mental health, drug use and offending behaviours. You acknowledged that your worsening mental health, increased recklessness and debt resulting from your drug addiction subsequently contributed to your offending behaviours. You acknowledged the need for intensive treatment upon release and expressed a positive view about your rehabilitation and future re-engagement in employment.

27. In assessing the objective seriousness of the offence of receiving stolen property, I take into account the large number of items which are the subject of that charge. There is nothing to suggest that this offence was the result of impulsivity or recklessness on your behalf. The offence appears to be one of deliberate accumulation and storage of a large quantity of stolen goods. The only possible explanation for this behaviour is that you anticipated being able to make a profit by selling these goods.

28. It was submitted by the Crown that it could reasonably be inferred that the stolen property is in some way related to you trafficking in illicit drugs. In my opinion, whilst there is considerable suspicion about that, it is not possible to be satisfied of that allegation to the standard of beyond reasonable doubt. Whilst no evidence was put before me as to the value of those items, it is a clear inference available that the aggregate value was considerable. It is of course an aggravating circumstance which I take into account in sentencing you with regard to that offence that you committed this offence at a time that you were subject to two Intensive Corrections Orders.

29. With regard to the drug trafficking charges, in assessing the objective seriousness of those offences I take into account the amounts of each substance located in your apartment. The amount of methylamphetamine located was approximately 94 times the trafficable quantity. The amount of MDMA located was approximately 37 times the trafficable quantity. The amount of heroin located was approximately 23 times the trafficable quantity and the amount of cocaine located was approximately 20 times the trafficable quantity.

30. The location of nearly $90,000.00 in cash in your apartment, together with other indicia of drug dealing to which I have referred, makes inevitable the inference that you were involved in a significant level of drug dealing, largely for the purpose of financial gain. Indeed, your counsel properly conceded that this offending had, at least in part, the intention of achieving financial gain. The harm that illicit drugs do in our community is well known and those who seek to profit by their distribution should expect lengthy terms of imprisonment.

31. Your counsel did not submit that the mental health conditions referred to by Dr Clout in her report were such as to reduce your moral culpability for this offending or in some other way engage the Verdins principles. As such, I take into account the contents of Dr Clout's report as providing context to your offences and bearing upon your prospects for rehabilitation. I am satisfied that you have reasonable prospects for rehabilitation so long as you address your mental health issues and your substance abuse issues. It is encouraging that you have expressed a willingness to continue to accept mental health treatment and to engage in drug and alcohol rehabilitation. I am not satisfied, however, that there is any reason to be found in the report of Dr Clout to moderate or eliminate deterrence as a sentencing consideration in this case.

32. I take into account your pleas of guilty. These were entered at a relatively early stage, although not at the earliest opportunity. I accept that your pleas demonstrate a degree of remorse and that they have significant utilitarian value. The Crown submitted that the case against you with respect to each of these charges was overwhelming and that, accordingly, I should not allow any significant discount by reason of your pleas of guilty. I accept that each of the cases against you is very strong, but that nevertheless your pleas saved the community the cost of conducting two trials. I will reduce by approximately 15 per cent the otherwise appropriate sentences in order to reflect your pleas.

33. The drug trafficking offences were all committed as part of the same criminal enterprise, such that some degree of concurrency is appropriate with respect to the sentences for those offences. As each charge involves significant amounts of different drugs, total concurrency is not appropriate. I have also given consideration to the totality of the sentence in determining issues of concurrency and aggravation across the full range of the sentences to be imposed. Having considered all available sentencing options, I am satisfied that nothing less than immediate terms of imprisonment are appropriate to adequately punish you, to deter you from committing such offences, and to deter others from committing such offences and to denounce your conduct.

34. With regard to the charge of receiving stolen property you are convicted and sentenced to two years and six months' imprisonment commencing 20 December 2017 and expiring 19 June 2020.

35. With regard to the offence of trafficking in methylamphetamine you are convicted and sentenced to two years and 11 months' imprisonment commencing 20 June 2020 and expiring 19 May 2023.

36. With regard to the charge of trafficking in MDMA you are convicted and sentenced to two years and three months' imprisonment commencing 20 September 2021 and expiring 19 December 2023.

37. With regard to the charge of trafficking in heroin you are convicted and sentenced to one year and 10 months' imprisonment commencing 20 June 2022 and expiring 19 April 2024.

38. With regard to the charge of trafficking in cocaine you are convicted and sentenced to one year and 10 months' imprisonment commencing 20 November 2022 and expiring 19 September 2024.

39. With regard to the two transfer matters that were transferred from the Magistrates Court, I record convictions and there will in each case be a Good Behaviour Order for a period of three months which will be confined to the core conditions. I acknowledge that those sentences are in effect without any real substance, but I impose those in the light of the sentences that I have imposed for the other offences.

40. The aggregate sentence I have imposed is therefore one of six years and nine months' imprisonment commencing 20 December 2017 and expiring 19 September 2024. I set a non-parole period of three years and eight months commencing 20 December 2017 and expiring on 19 August 2021.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.