R v Hyde [2017] ACTSC 337

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - trafficking in a controlled drug other than cannabis - user/dealer - prior criminal convictions of a similar nature - positive factors towards rehabilitation - consideration of lowest level of objective seriousness - general deterrence - specific deterrence - partially suspended sentence of imprisonment

R v Tran [2014] ACTSC 368

1. Natalie Marie Hyde has pleaded guilty to trafficking in a controlled drug, namely, methamphetamine. Trafficking in a controlled drug other than cannabis is contrary to

s 603(7) of the Criminal Code 2002 (ACT) and carries a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both.

1. In the early hours of the morning of 17 June 2017, the vehicle in which Ms Hyde was travelling in was pulled over by police. As a result of what police were told and what they observed, they conducted a search of the vehicle and found a substance which was later tested and demonstrated to be 20.002 grams of methamphetamine.
2. They also found a quantity of money wrapped in two bundles and additional loose notes totalling $6107.50, a set of "Sharp scales", a black case containing a glass methamphetamine pipe and a gold chain bracelet.
3. The offender pleaded guilty to the charge on the fifth occasion that the proceedings were before the ACT Magistrates Court.
4. The quantities that can be subject to this charge are between six grams and three kilograms. Having regard to the quantity found, the fact that the offender was found with a substantial quantity of money, and the fact that it is uncontroversial she was a methamphetamine user, I treat this case as not being in the lowest level of such a case, namely a subsistence dealer/user, but just above that level in that dealing was occurring at a level sufficient to accumulate some quantities of money but not any quantity that would permit a more extravagant lifestyle. Nor is there any evidence that she was supplying to other people so that those other people could on-sell the drug. I therefore treat the offending conduct as being at the lower end of the low to mid-range of objective seriousness for this offence.

1. The subjective circumstances of the offender are disclosed in the Pre-Sentence Report, which was tendered and became Exhibit 2.
2. Most significant is that Ms Hyde is currently 38 years old. She described herself as associating with an antisocial peer network since the age of 12 and says that she has developed a further antisocial peer network since residing in her current accommodation. She stated to the author of the Pre-Sentence Report that she proposes to either live with her mother in Canberra or her father in Wellington, New South Wales. I was told that it is more likely to be her mother in Canberra. That arrangement has the potential to get her away, although not as far away as Wellington, from her antisocial peer networks.
3. She has positively engaged with several educational programs whilst detained in custody. A substantial quantity of documentation was tendered showing her completion and her positive attitude so far as it is recorded by the providers of those courses. She has also attempted to obtain admission to Karralika and Benelong's Haven, both residential rehabilitation facilities, but was unable to get into those programs. She has education up to Year 10 and has, for varying periods during her life, had employment, most particularly employment at a boarding kennel between the ages of 17 years and 30 years as well as from ages 35 to 37 years.
4. Ms Hyde does, however, have a criminal history both in the ACT and New South Wales. In the ACT, there is a single drug driving charge, several drive whilst disqualified and drive whilst suspended charges, and a lower-level drink driving charge. In New South Wales, she has some convictions for drug offences as well as some driving charges. The existence of that criminal history is consistent with the history one would expect from somebody who has had a longstanding drug problem. It appears from the Pre-Sentence Report that although she had previously used alcohol and cannabis, it was only since the age of 29 years that she started using methamphetamine and that her drug use has increased during that period.
5. I was referred to three other cases which, although each is obviously very dependent on the particular circumstances, were of some assistance in seeing how other judges of this Court have dealt with offences of this type.
6. I note in the decision of R v Tran [2014] ACTSC 368, where Ms Tran was given 16 months' imprisonment reduced from 19 months, that there were some features which indicated that the case was probably more serious than this. An amount of 9.5 grams of methamphetamine was found as well as $9645 in cash. Those are reasonably similar to the present case, however, she was sentenced on the basis that she was then supplying methamphetamine to another person who was then on-selling the substance to others.
7. Ms Tran had been given the opportunity to undertake rehabilitation and had not taken that opportunity. Burns J found that she lacked motivation to address her drug addiction. At the time when she committed the offences, she was subject to four Good Behaviour Orders. All of those factors tend to indicate that the case was a more serious one than Ms Hyde's.
8. In the present case, although it is very difficult to predict the future, particularly in relation to an offender who has a history of associating with antisocial peers and where that association is likely to be a significant risk factor in terms of ongoing use of illicit substances, it is possible to say that the implications of the material before me are positive.
9. In particular, the attempts to get into rehabilitation, the apparent motivation demonstrated to the author of the Pre-Sentence Report, and the very positive participation in courses and programs within the Alexander Maconochie Centre, are all factors which provide some hope for the rehabilitation of the offender in the future. Similarly, the fact that she has over a substantial number of years had employment is a further factor which is also a positive indication for the future. Ms Hyde has been in custody since the time of her arrest, which is 133 days. I consider that the requirement for general and specific deterrence as well as the need to encourage long-term rehabilitation will all be satisfied by a partially suspended sentence of imprisonment.

1. In this case I consider that a sentence of imprisonment of 12 months, to be suspended after six months, achieves the appropriate balance. I have given the offender the benefit of the plea of guilty by reducing the period of imprisonment from 15 months down to 12 months and also taking into account the period which needed to be served by

full-time imprisonment prior to the suspension of the sentence.

2. The suspension of the sentence will be the subject of a Good Behaviour Order for a period of 24 months. That will ensure that the probation condition involves a substantial period during which the offender is subject to probation so as to ensure that during that period she has every incentive to remain free of drug use, and hence get her life back heading in the right direction.

1. The orders of the Court are:
   1. The offender is convicted and sentenced to imprisonment for 12 months commencing on 17 June 2017 and ending on 16 June 2018.
   2. The sentence is to be suspended after six months upon the offender entering into an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, which will be subject to a probation condition and a condition that she:

1. undertake medical treatment and supervision as directed by the

2. supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a Correction officer; and

1. attend such educational, vocational, psychological, psychiatric or other programs or counselling as she is directed by the Director-General.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.