R v Dudeck [2015] ACTSC 80

Effective sentence of five months and two weeks, suspended for 18 months.

CRIMINAL LAW - Sentence - traffic in trafficable quantity of cannabis - cultivate a trafficable quantity of cannabis with intent to sell - possess prohibited weapon - possess prohibited drug of dependence - early guilty plea - substance abuse - mental health - rehabilitation

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

Drugs of Dependence Act 1989 (ACT) s 169(1)

Magistrates Court Act 1930 (ACT) s 90B

Prohibited Weapons Act 1996 (ACT) s 5

Legal Aid ACT (Offender)

SCC 265 of 2014; SCC 52 of 2015

1. The offender adheres to pleas of guilty entered in the Magistrates Court to three offences:

(a) Between 31 December 2012 and 22 October 2013, traffic in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT) (the Criminal Code) (maximum available penalty 10 years' imprisonment and/or a fine).

(b) Between 8 September 2013 and 22 October 2013, cultivate a trafficable quantity of cannabis with intent to sell, contrary to s 616(5) of the Criminal Code (maximum available penalty 10 years' imprisonment and/or a fine).

(c) On 21 October 2013, possess a prohibited weapon (two capsicum spray canisters), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (maximum available penalty five years' imprisonment and/or a fine).

2. A trafficable quantity of cannabis is prescribed as 300 grams. A commercial quantity is prescribed as 30 kilograms. The trafficable quantity of plants in relation to the offence of cultivation is prescribed as 10 plants.

3. The offender was charged with these offences on 16 June 2014. Initially, she entered pleas of not guilty. In July 2014 the matter was adjourned for the brief of evidence to be prepared. The offender pleaded guilty to these offences on 6 November 2014 (confirmed on 13 November 2014), 13 November 2014 and 18 September 2014 respectively. The offender was committed to the Supreme Court for sentence on 13 November 2014.

4. The offender adheres to pleas of guilty entered in the Magistrates Court to two related offences:

(a) On 21 October 2013, possess a prohibited drug of dependence (methylamphetamine), contrary to s 169(1) of the Drugs of Dependence Act, 1989 (ACT) (the Drugs of Dependence Act) (maximum penalty two years' imprisonment and/or a fine).

(b) On 21 October 2013, possess a prohibited drug of dependence (oxycodone), contrary to s 169(1) of the Drugs of Dependence Act (maximum available penalty two years' imprisonment and/or a fine).

5. The offender was charged with the related offences on 16 June 2014 and 23 October 2014 respectively. She pleaded guilty to the offences on 13 November 2014.

6. Pursuant to s 90B of the Magistrates Court Act 1930 (ACT) the related offences were transferred to the Supreme Court for sentence on 12 March 2015.

7. Given the plea history, it is appropriate that there be a discount of 20% on the sentences that would otherwise have been imposed in relation to the charges of traffic in a trafficable quantity of cannabis and cultivate a trafficable quantity of cannabis. There should be a discount of 25% on the sentences that otherwise would have been imposed in relation to the charges of possess prohibited weapon and the two charges of possess prohibited drug of dependence as guilty pleas were indicated soon after the offences were charged.

8. Between December 2012 and October 2013, the offender sold small quantities of cannabis, about 3.5 grams on each occasion, to one person, B. Sales occurred approximately once a week, a total of approximately 40 occasions. B paid about $50 for each deal of cannabis. The total amount that B purchased was approximately 140 grams.

9. When police executed a search warrant on 21 October 2013 they located 1.139 kilograms of cannabis at the offender's premises. They also seized CCTV footage that showed a number of people attending the kitchen of the premises for a short period of time. Police found cannabis in the kitchen. The offender possessed three mobile telephones. Text messages on the telephones seemed to concern the sale of cannabis. Police also located digital scales.

10. The evidence in relation to trafficking in cannabis demonstrates that over a significant period of time the offender sold cannabis to at least one person. It was not an isolated dealer/purchaser arrangement; there were other persons who also purchased cannabis. However, it is not clear how many others were involved, over what period they purchased cannabis from the offender, or the quantity that they purchased.

11. The offender's possession of 1.139 kilograms on 21 October 2013 suggests that she had a sufficient quantity of cannabis to meet a reasonable demand by purchasers. On the other hand, the offender was at the time a significant user of cannabis. I infer that a substantial part of the cannabis that was in her possession on 21 October 2013 was for personal consumption.

12. The offence of trafficking is towards the lower end of the spectrum of objective seriousness. However, it is not at the bottom of the range when one considers the period over which cannabis was trafficked, the number of occasions upon which it was trafficked and the quantities involved, not only in terms of the actual trafficking but also having regard to the cannabis that was in the offender's possession at the time that the search warrant was executed.

13. When the search warrant was executed, police located cannabis plants and seedlings. Ten plants were of a moderate size. They were illustrated in the photographs that were tendered. In addition, there were 13 small seedlings (aged six weeks), and four plants hanging from a string (root ball removed). The offender admitted growing the plants from seed. She watered and fertilised all the plants in her possession.

14. As mentioned at [2], 10 plants is prescribed as the trafficable quantity for the offence of cultivate a trafficable quantity of cannabis. The offender must have been growing plants for at least six weeks, and inferentially longer, as she had 10 medium-sized plants as well as the 13 smaller plants in her possession. However, the quantity of plants is very much towards the bottom end for an offence of this type, and the cultivation method was not sophisticated. It is not a case of cultivation by enhanced means.

15. On the other hand, the offender was in possession of a book that described how best to cultivate cannabis plants, and she obviously intended for the operation to continue. A note found when the search warrant was executed reads, "Soon we will have more money for better equipment". Inferentially, the note referred to better growing equipment. However, when the search warrant was executed the operation was very small scale and, judging by the photographs, rather haphazard.

16. The offence of possessing a prohibited weapon relates to two capsicum spray canisters. The offender said that she acquired the items for personal protection. That assertion was not disputed.

17. The other two offences concern possession of drugs of dependence. In each case, a significant quantity of the relevant drug was in the possession of the offender. With respect to methylamphetamine, the offender had 1.599 grams of the drug in her possession.

18. The oxycodone was prescription medication that the offender had in her possession without a prescription. The quantity was 10.888 grams, or 82 tablets, a significant quantity, but there was no suggestion that the offender intended to supply the substance to others.

19. The offender is now 54 years of age. In the 1980s she committed numerous drug offences in New Zealand. Since then there have been only a couple of matters recorded against the offender. In 2001 she committed an offence of cultivate prohibited plant, involving only one plant. The offence resulted in a fine of $100. There is then a gap in offending for a period of 11 years, until early 2012. In 2012 the offender was again convicted of possessing a prohibited substance. She was fined $550. In August 2012 she was convicted of a theft (shoplifting clothing valued at approximately $120 in May 2012) and she received a 12 month good behaviour order with supervision.

20. The good behaviour order was in place when the trafficking offence was committed. That the offender was on conditional liberty when she committed the subject offences is an aggravating feature to be taken into account. However, the offence for which the offender was on the good behaviour order was an offence of a different nature and it was a minor matter.

21. The offender had a very dysfunctional childhood in New Zealand. Her home environment was characterised by domestic violence and alcohol abuse. Her father was a violent man, and she thinks that, because of his violence, her mother turned to alcohol. Later, the offender was informed that her father "was not her biological father". That caused her considerable upset.

22. Because of the dysfunctional nature of the household, the offender, who was the oldest sibling, was obliged to care for three younger siblings. As a result, she regularly missed school. She was schooled to about Year 8 or Year 9.

23. The offender's parents separated when she was 13 years old, and thereafter she resided for a short time with her mother. However she was neglected. She was removed from her mother and placed in a home. In the home, she was sexually abused on more than one occasion. She returned briefly to the family home when she was 15 years of age. At 16 years of age, she suffered mental health issues, and was hospitalised in an adult mental health facility. Since a very early age the offender has suffered from significant depression and anxiety.

24. The offender has had four children. She had her first child as a teenager. The offender was in a significant relationship from 1982 to 1989. In the relationship, the offender was abused, at least emotionally. There were three children of this relationship.

25. The offender's relationship with her children has been very troubled. The oldest child committed suicide in 2008. The surviving sons have been abusive towards their mother and the relationship remains tempestuous. There is also a daughter. The status of the relationship between the offender and her daughter is not known. The children are now adults.

26. Further tragedy befell the offender when she lost her best friend to illness, and then, in 2014, the offender's mother died of cancer. The offender had never enjoyed a comfortable relationship with her mother. The death of her mother caused psychological upset beyond the normal grieving reaction.

27. The offender has a long history of substance abuse. She has been on methadone for more than 20 years. Although it has been a long time since the offender was dependent on heroin, she continues to receive a significant dose of methadone. She is compliant with the regime. The methadone dose assists her to maintain mental stability and it is likely that the treatment will continue. She also receives medication for depression and anxiety.

28. She has had a gambling addiction, but gambling is not currently a problem.

29. The offender has a degenerative spinal condition, which she has had for at least five years. The medication prescribed for the condition caused side effects. This in part resulted in the offender turning to cannabis for pain relief. She used cannabis quite heavily for about five years as a form of pain relief. She has significantly reduced her cannabis intake since late 2014, and now has found prescription medication that provides relief.

30. Late last year, the offender was the victim of a knife robbery, and this caused a posttraumatic stress reaction. She was referred to counselling, which she has embraced. The counselling is of an holistic nature, addressing not only problems arising from the robbery but also the offender's longstanding problems in other respects such as depression, anxiety, domestic violence, low selfesteem, problematic relationships with children and the fact that the offender leads a very isolated life with little social support.

31. The Pre-Sentence Report (PSR) in effect says that the offender has limited insight and remorse in relation to the offending conduct. I accept that assessment, but note that the degree to which people are able to gain insight and express remorse depends in part upon their level of education and other background factors. The PSR highlights factors that indicate a high risk of recidivism and the need for a high level of intervention, including substance abuse and mental health issues. This assessment is accepted.

32. In the offender's favour, during the past decade there has been very little offending despite the fact that most of the current risk factors have been present during that period. The offences before the Court represent a departure from the generally good history over the past decade.

Sentencing Act

33. In sentencing the offender I am required to take into account any relevant features under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). I believe that I have referred to most of the relevant features. I am also required to consider the sentencing purposes in s 7 of the Sentencing Act. Most of those sentencing purposes are relevant to the present case. The offences of trafficking over a significant period of time and cultivation each call for a message of general deterrence. Some degree of specific deterrence is required, although the offender has recently made a very determined effort to turn her life around. She is being supported by counselling in her endeavour. It is important to support her efforts to rehabilitate. That sentencing purpose ties in with protection of the community. If the offender receives adequate support and rehabilitates, then that will provide the best protection to the community. Accountability and denunciation are important sentencing considerations.

34. I accept the Crown's submission that, prima facie, the offences of trafficking and cultivation call for some sort of sentence of imprisonment. Often the appropriate sentence will be one of fulltime imprisonment. However, having regard to the objective and subjective features to which I have referred, the sentencing purposes, and the maximum available penalties, I am of the view that the sentence does not need to involve fulltime imprisonment.

36. For the offence of cultivate a trafficable quantity of cannabis with intent to sell I would have sentenced the offender to three months' imprisonment but, having regard to the plea of guilty, the appropriate sentence is two months and one week imprisonment. For the offence of traffic in a trafficable quantity of cannabis, I would have sentenced the offender to six months' imprisonment, but having regard to the plea of guilty the appropriate sentence is four months and three weeks' imprisonment. Those sentences should be accumulated by a factor of three weeks. This means that there will be an effective sentence on those two offences of five months and two weeks' imprisonment.

37. For the offence of possess prohibited weapon, I sentence the offender to one month's imprisonment, concurrent with the other sentences.

38. Pursuant to s 12 of the Sentencing Act I make a suspended sentence order suspending the sentences imposed for the offences of cultivate a trafficable quantity of cannabis with intent to sell, traffic in a trafficable quantity of cannabis and possess a prohibited weapon for a period of 18 months from today, 20 March 2015, upon the offender entering into a good behaviour order for a period of 18 months.

39. The good behaviour order is subject to the following conditions:

(a) The offender is to accept the supervision of ACT Corrective Services and report to Eclipse House by 4pm today, 20 March 2015. Supervision is to continue for as long as ACT Corrective Services deems necessary.

(b) The offender is to accept all recommendations of ACT Corrective Services regarding treatment for substance abuse, mental health and otherwise.

(c) The offender is to undertake any programs that she is asked to undertake and to obey any other reasonable direction of ACT Corrective Services.

40. In relation to each of the offences of possess prohibited drug of dependence, I impose a good behaviour order for 18 months on the same conditions as apply to the suspended sentence good behaviour orders.

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