R v Gunner [2018] ACTSC 372

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - charge of possess prohibited substance for purpose of sale/supply - charges of possession of property suspected of being proceeds of crime - charge of possessing drug of dependence - charge of possessing prohibited substance - charge of unlawful possession of stolen property - consideration of Pre-Sentence Report - consideration of Intensive Corrections Order assessment - consideration of objective seriousness of offences

Crimes Act 1900 (ACT) s 114C

Drugs of Dependence Act 1989 (ACT) ss 164, 169

SCC 271 of 2017; SCC 276 of 2017

1. Christopher Gunner, you have pleaded guilty to one offence of possessing a prohibited substance, being heroin, for the purposes of sale or supply on 25 July 2017. This is Count One on the indictment that was relied upon by the prosecution. In addition, there are a number of transferred charges which have been transferred to this court from the Magistrates Court as related charges.

2. There is one charge of possessing property suspected of being the proceeds of crime, namely $9,417.35, on 25 July 2017; this is Magistrates Court charge CC2017/9984; one charge of possessing property suspected of being the proceeds of crime, namely $12,000.20 on 14 August 2017, being Magistrates Court charge CC2017/9980; one charge of possessing a drug of dependence, namely methylamphetamine, on 14 August 2017, being Magistrates Court charge CC2017/9091; one charge of possessing a prohibited substance, namely heroin, on 14 August 2017, being Magistrates Court charge CC2017/9084; and finally one charge of unlawful possession of stolen property on 14 August 2017, being Magistrates Court charge CC2017/9934.

3. A comprehensive Statement of Facts was tendered by consent at your sentence hearing. I will not now read that Statement of Facts. It is sufficient to note that on 25 July 2017, police conducted a traffic stop on you. You returned a positive result on a drug screening test and you were taken into custody, at which time police located $4,212.35 in your possession. Police later obtained a search warrant for your car and located further money and 8.25 grams of heroin.

4. Subsequently, on 14 August 2017, police executed a search warrant at your home where they located substantial sums of money, heroin, methylamphetamine, multiple telephones, zip-lock bags, scales and a stolen bicycle.

5. I note that the maximum penalty for the offence of possession of a drug of dependence for the purpose of sale or supply contrary to s 164 of the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) is five years' imprisonment, a fine of $75,000 or both. The maximum penalty for the offence of possessing property suspected of being stolen, contrary to s 114C of the Crimes Act 1900 (ACT), is two years' imprisonment, a fine of $30,000 or both. The maximum penalty for the offence of unlawful possession of stolen property, contrary to s 324 of the Criminal Code 2002 (ACT) (the Criminal Code), is six months' imprisonment, a fine of $7,500 or both. The maximum penalty for the offence of possessing a drug of dependence contrary to s 169 of the Drugs of Dependence Act is two years' imprisonment, a fine of $7,500 or both. The maximum penalty of the offence of possessing a prohibited substance contrary to s 171 of the Drugs of Dependence Act is two years' imprisonment, a fine of $7,500 or both.

6. I note that on 20 June 2018 you pleaded guilty to the charges now before the court in this court and the Magistrates Court. The plea to Count One on the indictment was entered at the trial callover effectively three business days prior to the matter proceeding to trial. The plea was entered following negotiations between the Crown and your representatives prior to 20 June 2018.

7. The Crown accepted a plea of guilty to the current charge of possess a prohibited substance for the purposes of sale or supply in lieu of the more serious charge of trafficking in a controlled drug, namely heroin, contrary to s 603(7) of the Criminal Code. The maximum penalty for that offence is ten years' imprisonment, a fine of $150,000 or both. Although the pleas were not entered at the earliest opportunity, I will nevertheless allow 10 per cent reduction in sentence with regard to your pleas of guilty. I note that although they were not early pleas, they still had utilitarian value. I also note that you have spent 53 days in pre-sentence custody.

8. With regard to the execution of the search warrant on 14 August 2017, police located a closed-circuit television monitoring system unit box and seized an 8GB SD card. Footage was found on the SD card, which depicted multiple people coming and going from your residence in circumstances which gave rise to an inference that they had attended in order to source drugs.

9. Enquiries with your landlord at that time revealed that the closed-circuit television system had not been installed by him and that you had moved into the premises at the end of May 2017. You also made all rental property payments promptly and, on 13 July and 20 July, you had made rental payments in cash. Police inquiries with the Australian Taxation Office revealed that in the period between July 2015 and June 2017 you were not employed and you did not lodge an income tax return.

10. You have a prior criminal history for offences of dishonesty, traffic offences and also for possession of heroin. You also have a history of breach of community-based orders.

11. A Pre-Sentence Report was obtained for the purposes of the sentence hearing. You are currently 33 years old. The report notes that you have a poor history of compliance with previous supervision. Your parents separated when you were 10 years old and that reportedly had a significant negative impact on you and led to antisocial behaviour. You spent time in juvenile detention and reported being sexually abused in that detention.

12. You are currently in a relationship of six years, of which one child, a daughter, has been born. You completed education to Year 10 with limited subsequent work history.

13. You reported using cannabis for six months when you were 16 years old; however, you ceased because you did not like the effect of that drug. You reported commencing use of heroin at age 19 and it is clear that you have continued to use that drug since that time. I note that you returned in excess of 10 negative drug screenings since July 2018, although unfortunately you recently had a relapse into heroin use.

14. I do note that you have expressed willingness to undergo drug rehabilitation and you also continue on the methadone program. You have been assessed for an Intensive Correction Order. Your attendance for the assessment was described as satisfactory.

15. You were drug-tested on three occasions; however, on the last occasion, being 22 October 2018, you tested positive for the use of heroin. Your other tests were negative for illicit drugs.

16. You are currently engaging in the Newpin Programme facilitated by Children and Families ACT with your partner. That is an 18 month program.

17. You were found suitable for an Intensive Corrections Order and you were assessed as at medium risk of general re-offending.

18. In terms of the objective seriousness of the offence of possession for heroin for the purposes of sale or supply, the facts establish that you are a heroin user but also that you engaged in the supply of heroin. I have no doubt that you engaged in the supply of heroin to help to fund your own use of that drug. The evidence establishes, however, that there was also a degree of profit motive. You engaged in receiving stolen property in exchange for drugs as well as receiving money. You used part of what you received to support your daily needs. I would describe your involvement as slightly above a subsistence dealer.

19. There is currently a window of opportunity for rehabilitation, I am satisfied, in that you appear to be motivated to achieve and continue to have care of your daughter with your partner. This of course will only be likely to be successful if you successfully address your drug addiction. These offences call for terms of imprisonment. I am willing to give you an opportunity to serve those terms by way of an Intensive Corrections Order.

20. With respect to Count One on the indictment, a charge of sale or supply of a prohibited substance (XO2018/31373), you will be convicted and you will be sentenced to nine months' imprisonment. I have reduced that by two months in order to mark your plea of guilty and also a further two months in order to reflect your pre-sentence custody. The starting point would have been 13 months but, as I have said, I have reduced it by four months for those reasons down to nine months. That will commence today, 5 November 2018, and expire on 4 August 2019.

21. With respect to the charge of possession of property suspected of being the proceeds of crime (CC2017/9984), you are convicted and sentenced to five months' imprisonment commencing on 5 May 2019 and expiring on 4 October 2018.

22. With regards to the charge of possessing property suspected of being the proceeds of crime (CC2017/9980), you are convicted and sentenced to six months' imprisonment commencing on 5 June 2019 and expiring on 4 December 2019.

23. With regard to the charge of possessing a drug of dependence (CC2017/9091), you are convicted and sentenced to three months' imprisonment commencing on 5 November 2019 and expiring on 4 February 2020.

24. With regard to possessing a prohibited substance (CC2017/9084), you are convicted and sentenced to two months' imprisonment commencing 5 November 2019 and expiring 4 January 2020.

25. Finally, with regard to the charge of unlawful possession of stolen property (CC2017/9934), you are convicted and sentenced to three months' imprisonment commencing on 5 January 2020 and expiring on 4 April 2020.

26. The aggregate sentence is therefore one of 17 months' imprisonment commencing on 5 November 2018 and expiring on 4 April 2020.

27. I order that those sentences be served by way of an Intensive Correction Order. It will be a condition of that order that [redacted].

28. Mr Gunner, I have sentenced you to a total of 17 months' imprisonment. I have ordered that that is to be served by way of an Intensive Corrections Order. You need to ensure that you comply totally and strictly with the terms of that order because, if you do not comply, it is not a case of being brought back to court to be dealt with on a breach of the orders; the Sentence Administration Board can immediately return you to custody.

29. You have a very significant and profound choice in front of you. You can have your drug addiction or you can have your child. The reality is you cannot have both. And you will be judged, particularly by your daughter as she grows up, by what choices you make.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.