CRIMINAL LAW - Sentence - Particular Offences - drug offences - trafficking in a controlled drug other than cannabis.

The Queen v Fairbairn (unreported, Supreme Court of the ACT, Refshauge J, 27 February 2012)

Yazdi v Chancellor [2011] ACTSC 171

1. Mr Himbert, on 2 February this year, I found you guilty after a trial by judge alone of one offence of trafficking in a controlled drug other than cannabis, contrary to s 603 (7) of the Criminal Code 2002 (ACT). It now falls to me to pass sentence for that offence. I will briefly summarise my findings. I am satisfied that, on 14 October 2012, you were arrested at Canberra Airport in the process of boarding a flight to Sydney. From Sydney, you intended to fly to Darwin. When you were arrested, you were searched and a small clip seal plastic bag containing a white crystalline substance weighing 2.185 g was found sown into your underpants. I am satisfied that the white crystalline substance was methylamphetamine, although the precise purity of the drug in that substance is not known. I am satisfied that you were taking the methylamphetamine to Darwin to sell it in the expectation that you could make a greater profit from its sale in Darwin than you could in Canberra.

2. I found the offence of trafficking proved on the basis that you were in possession of the methylamphetamine with the intention of selling it and that you transported, guarded and concealed it with the intention of selling it.

3. I note that the maximum penalty provided by law for this offence is 10 years' imprisonment. This reflects the seriousness of this type of offending as viewed by the legislature. There should hardly be a need to observe that the maximum penalty reflects the undoubted misery and social evils that result from illicit drug use and particularly from the supply of those drugs in our community.

4. You maintained your plea of not guilty to the charge, as you were entitled to. You are not to be punished for pleading not guilty, but you are not now entitled to the leniency that may have been shown to you had you admitted your guilt. An earlier plea of guilty demonstrating remorse and having utilitarian value could have been expected to receive a discount of approximately 25 per cent on what would otherwise be the appropriate sentence.

5. I am satisfied that you have shown little remorse for this offence. As recently as last month, you told the author of the Pre Sentence Report that the methylamphetamine found in your possession was for your own use, a completely untenable proposition when your conversations leading up to 14 October 2012, as recorded by a listening device lawfully installed in your home, are taken into consideration.

6. You have a limited criminal history, mainly for driving offences. The only drug offence on your history is a conviction for possession of less than 50 g of cannabis in 2012, for which offence you were convicted and fined $100.00. Balanced against the fact that you have a limited criminal history is the fact that you planned the journey to Darwin in October 2012 as a test run with a view to transporting larger quantities of methylamphetamine to Darwin for sale in the future.

7. You are not to be sentenced for the offences that you did not commit, but it is relevant to consider that you did not intend the present offence to be an isolated one. This speaks of a higher degree of criminality in the present offence than if it were intended to be an isolated offence.

8. I am satisfied that your motive in committing this offence was profit. You were not addicted to methylamphetamine, but you were in debt and also contemplating a move from Canberra to Queensland for which you also required money.

9. The facts reveal a significant degree of planning in the lead up to the commission of this offence. It is clear from your recorded conversations that you had arranged for assistance in supplying the methylamphetamine in Darwin and had thought through the risks and likely profits attending this offence. This was a well planned criminal enterprise conducted purely for financial gain. I am satisfied that your moral culpability is quite high.

10. While the purity of the methylamphetamine located on you on 14 October 2012 is unknown, it is clear from the recorded conversations that you considered it to be potent and likely to fetch a high price in Darwin. I agree with the observations of Refshauge J in The Queen v Fairbairn (unreported, Supreme Court of the ACT, Refshauge J, 27 February 2012) concerning the correct approach to evidence or lack of evidence of purity in determining the seriousness of an offence of this kind and I resile from what I said in Yazdi v Chancellor [2011] ACTSC 171 as a general proposition.

11. I take into account, without here reciting, the contents of the Pre Sentence Report. I note that you are currently 24 years old but you were only 21 at the time of this offence. There has been no further offending by you since you were arrested and charged with this offence in 2012. Your relative youth at the time of this offence is a factor which suggests, together with a lack of further offending, that there may be reasonable prospects for rehabilitation.

12. I note that you told the author of the Pre Sentence Report that you no longer associate with your former partner who you described as a drug user, or with the antisocial peers you associated with in 2012. While your former partner may have been a drug user, it is relevant to observe that the recorded conversation suggests that she tried to talk you out of committing this offence, and that it is clear that you were the instigator of the offence.

13. The author of the Pre Sentence Report assessed you as being of medium risk of reoffending. I note that, no matter how one looks at the matter, it cannot be said that at the present that you are a hardened criminal.

14. I note that you have continuing stable accommodation and family support, which also is likely to assist in the process of rehabilitation.

15. While I have spoken of your prospects for rehabilitation, I do not entirely neglect the other sentencing considerations, in particular general deterrence. It is routinely stated by courts in this country that deterrence of drug trafficking is a primary objective in sentencing for this type of offence. I accept the submission of your counsel that specific deterrence is not a significant factor in sentencing you today.

16. Both your counsel and also counsel for the Crown submitted that a term of imprisonment is the only appropriate sentence for this offence, The difference between the submissions of Crown and that of your counsel being that the Crown submitted that full time imprisonment was appropriate, whereas your counsel submitted that a term of imprisonment to be at least partially served by way of periodic detention would be sufficient to satisfy the requirements of sentencing.

17. I note that I am no longer permitted to impose periodic detention as part of a combination sentence involving full time imprisonment. I also note that any sentence of periodic detention I impose must end by 1 July 2016. I am, on balance, persuaded that a term of imprisonment to be served partly by way of periodic detention and partly by way of suspended sentence will be adequate to achieve the objectives of sentencing in this case. In coming to this conclusion I give significant weight to your age and your reasonable prospects of rehabilitation.

18. You will be convicted of the offence of trafficking and you will be sentenced to 20 months' imprisonment, commencing on 4 May this year to allow for the time you spent in custody after you were arrested. The first 12 months of that sentence, commencing on 4 May this year and expiring on 3 May 2016, is to be served by way of periodic detention. The balance of the sentence will be suspended. There will be a Good Behaviour Order for a period of two years commencing today with conditions:

(a) firstly, that you are to accept the supervision of ACT Corrective Services for that period of two years or such lesser period as deemed appropriate by your supervising officer; and

(b) secondly, that you are to obey all reasonable directions of officers of ACT Corrective Services, including but not limited to attending assessments, programs, counselling and treatment for alcohol and other drug abuse, attending employment or employment programs, and undertaking an assessment for the Cognitive Self Change Program.

19. I make it very clear that you have come very close to serving a term of full time imprisonment. I have imposed a sentence which is composed of the sentence of imprisonment to be served partly by way of periodic detention and partly by way of a suspended sentence and there is a Good Behaviour Order which applies from today.

20. I make it clear that, if you do not comply with that sentence, either by completing periodic detention as required or alternatively by not complying with the terms of the Good Behaviour Order, then you should expect to serve a proportion, at least, of that sentence of imprisonment by way of full time imprisonment.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.