R v French [2020] ACTSC 133

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - two counts of trafficking in a controlled drug other than cannabis - one count of dealing in the proceeds of crime - pleas of guilty - drug and alcohol addictions - mental health conditions - reasonable prospects for rehabilitation if mental health issues and substance addictions addressed

Crimes Act 1900 (ACT) s 114C

R v Verdins [2007] VSCA 102; 16 VR 269

V Conliffe (24 June 2019); K Reardon (18 November 2019; 4 February 2020; 14 February 2020) (Crown)

SCC 65 of 2019; SCC 66 of 2019

1. Christopher French, on 13 May 2019 you entered pleas of guilty to the following two charges on an indictment dated 15 April 2019:

• Count 1, a charge of trafficking in a controlled drug other than cannabis, namely heroin, on 29 September 2016; and

• Count 2, a charge of trafficking in a controlled drug other than cannabis, namely methylamphetamine, on 29 September 2016.

2. Each such offence is contrary to s 603(7) of the Criminal Code 2002 (ACT), carrying a maximum penalty of 10 years' imprisonment, a fine not exceeding $150,000, or both.

3. In addition, on 13 May 2019 you also pleaded guilty to an offence of dealing in the proceeds of crime, being money to the value of $21,335.00, between 19 June 2016 and 23 September 2016.

4. This is an offence contrary to s 114C of the Crimes Act 1900 (ACT) carrying a maximum penalty of two years' imprisonment, a fine not exceeding $30,000.00, or both. This charge was transferred to this Court from the ACT Magistrates Court.

5. On 29 September 2016, police executed a search warrant at your then residence in Palmerston, ACT. During the search, police smelt paint fumes inside the residence. You were wearing black and green camouflage cargo pants which had blotches of white paint on them. You had white paint on your hands. Police observed that the storage area underneath the internal staircase was a plasterboard lined space. The walls were freshly painted with white paint. There was an open tin of white paint in the storage area, as well as an electric cordless drill, scissors, blue masking tape, a paint scraper and a sanding block.

6. The manhole at the far end of the storage space was covered over with a wood board, fixed to the wood studs with screws and plaster, and painted white. Police used the electric drill to unscrew the screws and remove the wood panel. Behind the wood panel was a steel Lockwood safe with a digital code.

7. The safe was fixed to the floor using dyna bolts. The safe was locked. Police used a ram to dislodge the safe from the floor. During this process, the door of the safe broke open. Inside the safe were four plastic freezer bags: two bags on the top shelf of the safe and two bags on the bottom shelf of the safe. Inside the two freezer bags on the top shelf were smaller freezer bags containing heroin. Inside the two freezer bags on the bottom shelf were smaller freezer bags, containing methylamphetamine.

8. One of the plastic bags containing methylamphetamine was found to contain 996.072 grams of material, 76.7 per cent of which comprised methylamphetamine. The other plastic bag containing methylamphetamine was found to contain 990.862 grams of material, 77.5 per cent of which comprised methylamphetamine. One of the plastic bags containing heroin was found to contain 472.089 grams of material comprising heroin, monoacetylmorphine, acetylcodeine and caffeine and the other bag was found to contain 749.852 grams of similar material.

9. You told police during the execution of the search warrant that whatever was under the stairs did not belong to you. You said, in effect, the material belonged to a friend for whom you were doing a favour. You said that you did not have access to the safe and you had not touched the plastic bags inside and that you did not know that there were drugs in the safe. You said that you did not know that your friend was going to put drugs in the safe and that you purchased the safe because your friend told you to.

10. You told police that your friend gave you cash to keep the safe under your stairs. That friend had given you approximately $27,000.00, you said, over a period of time but not as a lump sum. The money was deposited into your partner's bank account. You told police that you had spent the money on online poker machines.

11. You declined to identify your friend. Bank records located by police during the search showed 64 cash deposits between 20 June 2016 and 10 October 2016 made into your partner's bank account. The amounts of cash deposited on each occasion varied but in total it amounted to $21,335.00.

12. The Statement of Facts records that your plea of guilty to the trafficking charges is on the following basis:

• that you did not know the exact composition of the drugs in the safe, but you were reckless as to the product in the safe being drugs; and

• secondly, that you did not know the precise quantity or weight of the drugs, but you did know that they must have been of a significant quantity based on the payments you received to guard and conceal the material.

13. Police did not immediately charge you with these offences. They determined to proceed by way of summons. Unfortunately, you lost your rental accommodation after police executed the search warrant and police were unable to serve the summonses on you.

14. Warrants were issued. You were extradited to the ACT after being sentenced in New South Wales for unrelated offences on 4 January 2019. You were charged with the present offences in the ACT Magistrates Court on 9 January 2019 at which time you entered pleas of not guilty. You were committed for trial to this Court on 18 March 2019. Your pleas of guilty were entered following a Criminal Case Conference and prior to a trial date being set.

15. Your pleas of guilty were not entered at the earliest opportunity but they, nevertheless, had significant utilitarian value. I will reduce by approximately 20 per cent the otherwise appropriate sentences because of your pleas of guilty. I note that you have been in custody continuously since you were charged with these offences on 9 January 2019.

16. In assessing the objective seriousness of the offences of trafficking in a controlled drug, I take into account the quantity of the drugs involved. You trafficked in approximately 1.2 kilograms of heroin, which is 240 times the trafficable amount and nearly half the commercial quantity. A trafficable quantity of heroin is five grams and a commercial quantity is 2.5 kilograms.

17. You also trafficked in approximately 1.9 kilograms of methylamphetamine, which is approximately 190 times the trafficable amount and also close to half of the commercial quantity. The trafficable quantity of methylamphetamine is 10 grams and the commercial quantity is five kilograms. The maximum penalty prescribed for trafficking in a commercial quantity of a controlled drug is 25 years' imprisonment.

18. It is not appropriate to adopt an arithmetic approach to determining sentences based upon where, in the range, from a trafficable quantity to a commercial quantity, the amount of a controlled drug in a particular offence falls. However, it provides a yardstick, together with the maximum penalty, for the particular offence which can assist in determining the appropriate range of sentence.

19. I accept the quantity of drug involved is not the sole or even dominant determinant of the appropriate sentence and I must look at your role in the trafficking of the drug. In that regard, it is not alleged that you were personally involved in the on-sale or supply of drugs to others or that you stood to directly profit from that supply.

20. You were the person who was high up in the hierarchy of the supply chain with regard to these drugs. It is accepted by the Crown that your role was limited to storing and guarding the drugs on behalf of those who would ultimately on-sell them for profit and you were paid a fixed sum for your services. In its written submissions, the Crown advised me, without objection, that data provided by the Australian Criminal Intelligence Commission Illicit Drug Report (2016-2017) suggested that the heroin seized would have an estimated street value of between $122,100.00 and $854,700.00 depending upon how it was sold. The estimated street value of the methylamphetamine was between $337,620.00 and $1,986,000.00 depending upon how it was sold.

21. Even taking the lowest estimates, it is clear that this was a significant trafficking enterprise from which those involved in the on-selling of the drug could expect to make a large profit. I also accept the submission made by the Crown that the potential for harm to the community was very great.

22. There was also an element of sophistication in your involvement in storing and guarding the drugs. Your wilful blindness to the exact nature of the material that was being stored and the quantity does not reduce your moral culpability. The amount of money subject to the charge of dealing in the proceeds of crime was significant but not at the higher end of the range.

23. I would assess this offence as more at the bottom of the mid-range of such offences. I would place the offences of trafficking in a controlled drug in the mid-range of such offences.

24. You have a criminal history both in the ACT and in New South Wales. Your criminal history in New South Wales is not particularly relevant to the present charges. Your ACT criminal history is not lengthy but it does contain an entry that on 20 October 2008, you were convicted of an offence of trafficking in a controlled drug other than cannabis, being MDMA and sentenced to six months' imprisonment which was wholly suspended with a Good Behaviour Order for a period of 12 months with conditions directed towards your rehabilitation.

25. As such, the present offences are not the first occasion upon which you have been involved in the trafficking of controlled drugs, albeit, that the previous offence occurred some eight years prior to the present offences. Personal deterrence cannot be eliminated as a relevant sentencing consideration.

26. A Pre-Sentence Report prepared for the sentence hearing records that you are now 39 years old and you would have been 35 years old at the time of these offences. The Report notes that your compliance with community-based supervision in the past was considered to be satisfactory. Since being remanded to the Alexander Maconochie Centre (AMC) in January 2019, you have completed an Introductory Drug Awareness Program and engaged in a telephone assessment interview for residential rehabilitation placement.

27. You were born in the Philippines and you are the eldest of your parents' two children. You reported your father being abusive towards you and other family members and you believe that his alcohol abuse contributed to his family violence behaviour. Your mother discontinued the relationship with your father and has since remarried. You immigrated to Australia with your mother and sister at approximately 9 years of age.

28. Your mother entered into a new relationship and experienced significant issues with the misuse of an illicit substance. You commenced a significant intimate relationship in 2008 from which you have one child. You advised that the relationship broke down in 2015 and you entered into another relationship from which you have two children.

29. You completed Year 10 and your employment history includes positions in the retail, hospitality and construction industries. The reference from Lucas Shapland speaks of your willingness to work to support yourself and your family. During 2017, unfortunately, your use of illicit drugs contributed to a discontinuation of your employment as a formworker.

30. You told the author of the Pre-Sentence Report that you commenced your use of MDMA at approximately 20 years of age. You stated that your use of methamphetamine began approximately three years ago, before your arrival in the AMC, and that you were using daily for the period of 12 months prior to being placed in custody.

31. You reported attempts at self-harm in the past. You told the author of the Report that your involvement in the illicit substance sub-culture had contributed to the present offences. You acknowledged that you would need to address your drug use to prevent a return to offending after being released from prison.

32. You were assessed as a medium risk of general reoffending due to substance abuse, antisocial values and attitudes, unemployment and mental health issues.

33. An Assessment for an Intensive Correction Order was obtained. I ordered the Assessment to be prepared at the request of your counsel. I accept that it is generally undesirable to obtain an assessment for such an order where a determination has not been made that such a disposition would be an appropriate one.

34. In the present case, your counsel submitted that such an assessment would, in any event, be useful in addressing your release on parole in due course. In acceding to your counsel's request, I indicated that the fact that I was ordering such an assessment did not mean that I had concluded that an Intensive Correction Order was an appropriate disposition.

35. The Assessment noted that you were sentenced to an Intensive Correction Order in New South Wales on 7 January 2019 for unrelated offending. You were charged with the present offences and remanded in custody on 9 January 2019 with the result that you did not have the opportunity to comply with the sentence imposed in New South Wales.

36. During the assessment period, you were drug tested on three occasions. On 23 December 2019, you returned a positive result for opiates, methamphetamine and amphetamine. Testing on 18 and 20 January 2020 returned negative results. You expressed an interest in engaging in drug support, but the Assessment noted that it had not been verified that you had commenced with such support. At an interview on 31 January 2020, you disclosed use of alcohol and cannabis during your present period of remand.

37. A report dated 16 October 2019 from Dr Danielle Clout, a clinical psychologist, was tendered in the sentence hearing. In summary, Dr Clout stated that you suffer symptoms consistent with the diagnostic criteria for several mental disorders including Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (current severity moderate), Stimulate Use Disorder and Gambling Disorder.

38. Dr Clout stated that, on the history provided to her, these diagnoses preceded your offending behaviour. Your description of symptoms consistent with PTSD and Stimulate Use Disorder were indicative of disorders in the severe range, while your Major Depressive Disorder and Gambling Disorder would be characterised at moderate.

39. Dr Clout stated that your mental health conditions, particularly the Major Depressive Disorder and PTSD are commonly associated with a range of impairments with respect to mental capacity and executive function, including decision-making, rationality, judgement, planning, memory, attention and inhibition. In addition, PTSD is associated with behavioural dysregulation, including reckless and destructive behaviours.

40. Your personal history and, in particular, your childhood history as set out in Dr Clout's report, is more comprehensive than that found in the Pre-Sentence Report or the Assessment for an Intensive Correction Order. The history set out in Dr Clout's report refers to significant childhood trauma as a result of abuse and neglect as well as exposure to violence and drug abuse.

41. In Dr Clout's opinion, it is likely that your history of severe childhood trauma, and the associated PTSD and depressive symptomology contributed to the development of your drug and gambling addictions, with these addictions subsequently worsening your mental health symptoms and behaviour dysregulation. It was Dr Clout's opinion that your mental health conditions had a significant role in your offending behaviour. Dr Clout expressed the opinion that you will require long-term intensive psychological treatment to address your past trauma history. A period of residential treatment was recommended to deal with your addiction issues.

42. Dr Clout noted that some mental health services can be provided within the AMC but given the complexity of your issues, treatment outside a custodial setting would be preferable. I note that Dr Clout addressed a number of the Verdins criteria in her report. She stated that both your PTSD and Major Depressive Disorder are associated with disruptions in thought processes, including the ability to think clearly, and to make calm and rational choices. She also believed that your conditions impacted on your level of inhibition and your ability to appreciate the wrongfulness of your behaviour.

43. Dr Clout expressed the opinion that because of your conditions, PTSD and Major Depressive Disorder, you are likely to find a sentence of full-time imprisonment more onerous than individuals without those conditions. It is also likely that a sentence of imprisonment will have an adverse impact on your mental health, by escalating your negative self-evaluation and increasing your overall level of symptomology and risk of harm to self.

44. I am satisfied that your moral responsibility for these offences is ameliorated by reason of your PTSD and Major Depressive Disorder from which you suffered at the time of these offences. I am satisfied that your drug and alcohol addictions are connected to these disorders and to your childhood trauma as described by Dr Clout.

45. I am also satisfied that you are likely to find imprisonment more onerous than someone who does not suffer from these conditions and that you will not be able to be as fully treated in a custodial setting as you would be in the community. I am not satisfied that your mental health conditions make you an unsuitable vehicle for general deterrence or that personal deterrence is not relevant. I am satisfied that a degree of moderation of both of those sentencing considerations is appropriate.

46. I gave serious consideration to the imposition of an Intensive Correction Order, but I was ultimately persuaded that the offences require the imposition of sentences of imprisonment because of their extremely serious nature. I intend, however, to set a shorter than usual non-parole period to enable the Sentence Administration Board to consider early release to parole with a placement in a residential rehabilitation program.

47. You have ongoing community support with your family, and it is heartening to know that you have made enquiries about admission into residential rehabilitation programs during your period in custody. You have reasonable prospects for rehabilitation if you address your mental health and substance addictions.

48. I record a conviction on Count 1 (CC 2017/9423) and you are sentenced to two years and five months' imprisonment, commencing on 9 January 2019 and expiring on 8 June 2021. I have reduced this from three years' imprisonment because of your plea of guilty.

49. I record a conviction on Count 2 (CC 2017/9424) and you are sentenced to two years and five months' imprisonment, commencing on 9 January 2020 and expiring on 8 June 2022. I have reduced this from three years' imprisonment because of your plea of guilty.

50. On the charge of dealing in the proceeds of crime (CC 2017/9425), I record a conviction and you are sentenced to nine months' imprisonment, commencing on 9 January 2019 and expiring on 8 October 2019. I have reduced this from 12 months' imprisonment because of your plea of guilty.

51. The aggregate sentence which I have imposed is therefore one of three years and five months' imprisonment, commencing on 9 January 2019 and expiring on 8 June 2022.

52. I set a non-parole period of 17 months, commencing 9 January 2019 and expiring 8 June 2020.

53. I recommend that the Sentence Administration Board make it a condition of any early release to parole that you undertake residential rehabilitation for substance and gambling addiction, and that you undertake appropriate counselling and treatment for mental health conditions.

54. I would add that were it not for the matters referred to in Dr Clout's report, these sentences would have been significantly longer as would the non-parole period.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.