CRIMINAL LAW - Sentence - particular offences - drug offences - trafficking in a controlled drug - trafficking in heroin.

Crimes (Sentencing) Act 2005 (ACT) ss7(1)

Novak v R (1993) 69 A. Crim R 145, 148

R v Grossi [2008] VSCA 51

1. The offender, Huat Phay, has pleaded guilty to two counts of trafficking in a controlled drug other than cannabis, namely heroin. This is an offence under s603(7) of the ACT Criminal Code 2002. The maximum penalty for this offence is 10 years imprisonment.

2. To understand what is encompassed in this charge it is instructive to set out the relevant extracts of Part 6.2 of the Criminal Code which deals with trafficking. The definition of "traffics" is given by s602. It is as follows:

Meaning of trafficking

For this chapter, a person traffics in a controlled drug if the person -

(a) sells the drug; or

(b) prepares the drug for supply -

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(c) transports the drug -

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(d) guards or conceals the drug with the intention of -

(i) selling any of it; or

(ii) helping someone else to sell any of it; or

(e) possesses the drug with the intention of selling any of it.

3. Section 604 deals with presumptions. It is as follows:

Trafficking offence - presumption if trafficable quantity possessed etc

(1) If, in a prosecution for an offence against section 603, it is proved that the defendant -

(a) prepared a trafficable quantity of a controlled drug for supply; or

(b) transported a trafficable quantity of a controlled drug; or

(c) guarded or concealed a trafficable quantity of a controlled drug; or

(d) possessed a trafficable quantity of a controlled drug;

it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).

(2) This section does not apply to a single charge under section 629 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.

4. In May 2014 New South Wales under-cover police arranged for either a heroin user and/or low level sub-supplier (the evidence does not reveal which) to regularly purchase heroin from the offender in Canberra. The details of how this was achieved are of no present relevance. In substance, the offender sold heroin to this purchaser in transactions having a value of between $1000 and $4000. There were six transactions in the period May to August 2014. In all, 36.4 grams were bought and sold for about $12,000.

5. As a result of executing a search warrant at the offender's apartment, police observed a magnetic key holder stuck to the underside of a vehicle parked in the car space next to the offender's car space. This vehicle was unregistered and not being used by the owner. After permission to search that vehicle was obtained police found water balloons filled with white powder inside the vehicle. The white powder weighed 3.832 grams and was heroin.

6. As can be seen this quantity of heroin is below 5 grams, which is the trafficable quantity of heroin prescribed in the Criminal Code Regulations 2005, but nevertheless the offence is committed due to the extended meaning of "traffic" set out above in s602 of the Criminal Code.

7. The offender pleaded guilty to these two counts at the first reasonable opportunity. He will receive a discount of approximately 25% for the utilitarian value of these pleas. The offender has not been in custody for these offences pending sentence.

8. At the sentencing hearing the following was either common ground between the parties or I find that-

(i) The motivation for engaging in the heroin trafficking was wholly financial.

(ii) Although the offender has used illicit substances in the past he appears to be currently free of drugs and consumes alcohol only on a social basis.

(iii) The offender has a significant history of gambling commencing in about 1991 and that gambling addiction continues.

(iv) Engaging in the heroin trafficking was for the purposes of continuing his gambling.

(v) The offender would not have stopped engaging in the trafficking had he not been apprehended.

(vi) The offender was a wholesaler of heroin towards the lower end of that type of sale.

9. Some of the above relies on, to some extent, the truth of the self reporting by the offender. I am satisfied that the conclusions are made out. The Crown observed that there was no evidence of any extravagant lifestyle. There is some corroboration for each proposition.

10. On 10 September 2009, the offender was convicted of trafficking heroin and was sentenced to 12 months imprisonment, suspended on entering a Good Behaviour Order for a period of three years and completing 100 hours Community Service Work. On the same day the offender was also convicted of possessing methylamphetamines and fined $250. These offences occurred on 14 April 2008.

11. This criminal history in relation to the trafficking of heroin is significant for present purposes. It shows that a measure of specific deterrence is necessary and casts doubt upon the true prospects of rehabilitation and tendency to reoffend.

12. The offender is 46 years old. He was born in Cambodia and came to Australia as a 14-year-old refugee in 1983 after spending two years in a Thai refugee camp. He started school in year nine and continued on to finish year 11. He obtained work behind the bar and in kitchens and also drove taxis. He then suffered an injury which resulted in a permanent and painful disability to his arm. The offender is currently unemployed and receiving the Centrelink disability support pension. He has in the past sought to help himself by voluntary exclusions from gambling premises. There is corroboration for this. However, he again succumbed to his addiction after the breakup of relationships and other pressures, such as depression and anxiety.

13. Since August 2014 he had sought help from Gamblers Anonymous and the Wesley Mission. There is corroboration for this. He has made some progress. At this point of time he appears to be well motivated in his attempt to overcome his addiction. As is recorded the offender now has a base from which he can address his addiction. He has stable accommodation, a pro-social relationship and few contacts with the criminal justice system. The evidence is that the offender has formed a stable relationship with a new partner in Sydney.

14. Jessica Kremp both wrote a letter of support for the offender, which was admitted into evidence, and also gave evidence before me. She has known him as a neighbour for some 12 years during which time he has conducted himself properly and politely at all times. Her young son (born 2006) treats him as an uncle. In recent times the offender has 'opened up' to Ms Kremp concerning his troubles and gambling. Ms Kremp has supported him and continues to do so. One thing that she now knows, but did not know at the time, was that it was her unregistered car that was used by the offender to guard or conceal his drugs. Ms Kremp did not make much of this in terms of their friendship as she believed she could not be prejudiced by the offender's actions in this regard. She specifically rejects the proposition she was duped. I accept her evidence for what light it throws upon the offender.

15. I have regard to the purposes of imposing a sentence upon an offender in s7(1) of the Crimes (sentencing ) Act 2005. All purposes are here engaged. I take into account the fact that the offender has not been deterred from committing the same offence by being punished for it in 2009. I also take into account that no very confident positive prediction can be made as to the offender's prospects of long term rehabilitation. That does not mean that the sentences I impose should not, to the extent that can be accommodated by the influence of the other conflicting sentencing purposes, promote the rehabilitation of the offender.

16. I have regard to the gambling addiction as being the reason for the offending. A gambling addiction is no excuse for trafficking in heroin. It is at best merely an explanation, but it may have significance in the sentencing process. As was put by Vincent J. in Novak v R (1993) 69 A. Crim R 145, 148, with whom Phillips C.J. and Crockett J. agreed, there is an increasing preparedness to recognise the extent to which gambling can constitute an addiction affecting the capacity of an individual to control his or her behaviour and, consequently, have relevance to the determination of both moral culpability and the applicability of general deterrence as a factor in an individual case. Whether a gambling addiction would be seen as a mitigating factor to any extent must be decided on a case by case basis. See, for example, the discussion in R v Grossi [2008] VSCA 51.

17. I have had regard to the extent of the offender's addiction, taken in combination with his confirmed diagnosis in 2010 of mood disorder and the sentences I impose will not reflect an increased element of general deterrence.

18. The authors of the Pre-Sentence Report record that the offender has insight into his own behaviour, stating:

Mr Phay agreed with the police statement of facts and although he cited problematic gambling as an influence on his behaviour and decision making; he did not minimise his responsibility for his actions in relation to the commission of these offences. Mr Phay was able to articulate the harmful impacts of his conduct and appeared to show insight into the seriousness of these offences.

Mr Phay identified his loneliness and a mood disorder as being the major contributing factors relating to his problematic gambling and ongoing impacts on his decision making, and in turn his offending behaviour. To his credit, Mr Phay has expressed the motivation to address his behaviour and appears to have taken appropriate steps to do so.

19. It is necessary to have regard to the prospects of reoffending and whether circumstances now exist where the offender could pursue a path towards rehabilitation, bearing in mind that an opportunity was given to him in 2008 and 2009 by Rares J by way of a deferred sentence, an opportunity that the offender took up with at least temporary success at that time.

20. The authors of the Pre-Sentence Report offered the following opinion:

Mr Phay has been assessed as medium-low risk of general reoffending due to enjoying the protection of stable accommodation, a pro social relationship and few contacts with the criminal justice system. It appears that despite this Mr Phay finds himself before the Court for further charges and although he would benefit from engagement in a program to address cognitive distortions relating to his offending behaviour, his low risk level may preclude him from participation in formal programs.

Mr Phay disputed that these convictions were due to the personal use of illicit substances and claimed that the commission of these offences was for purely financial gain. While Mr Phay has taken steps to address his problem gambling, he would benefit from ongoing engagement with services that address this as well as engagement in a pro-social leisure activity that both reduce his loneliness and meet his interests.

21. My conclusion is that the offender is making a genuine effort to rehabilitate himself. He now has a stable base from which to do so. He has now a diagnosis for his mental condition. Notwithstanding that the offender failed to overcome his addiction, at an earlier time, when given a chance to do so, with the sentence I impose he will have another effective opportunity.

22. I have considered whether I should accumulate any portion of the second count. I have decided not to do so for I consider the sentence on the first count reflects the criminality involved. The amount of drugs involved in the second count is just equivalent to one further transaction.

23. I am satisfied that no penalty other than imprisonment is appropriate.

(i) On the count of trafficking in a controlled drug, namely heroin, between 12 May 2014 and 22 August 2014, in contravention of s603(7) of the Criminal Code 2002, the offender is convicted and I sentence him to a period of imprisonment of 14 months, reduced from 18 months on account of his plea of guilty. That sentence will commence on 17 August 2015.

(ii) On the count of trafficking in a controlled drug, namely heroin, on 21 August 2014, in contravention of s603(7) of the Criminal Code 2002, the offender is convicted and I sentence him to a period of imprisonment for 3 months, reduced from 4 months on account of his plea of guilty. That sentence will commence on 17 August 2015.

24. This provides for a total effective sentence of 14 months imprisonment.

25. I order that the offender will be eligible for parole on 16 March 2016, that is, after 7 months, and this will be the earliest date on which the offender can be released.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Robinson.

16 September 2015 - Replace "17 March 2016" with "16 March 2016" paragraph [25].