[2017] ACTSC 280

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trafficking in cannabis and heroin - intensive correction order more effective in promoting rehabilitation but sufficiently burdensome to provide element of punishment - legislation precludes back-dating sentence to be served by intensive correction order - presentence custody taken into account by allowing more concurrency than otherwise appropriate.

Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 29(1)(b), 80

R v Barlow [2017] ACTSC 90

R v Ingram [2016] ACTSC 199

SCC 248 of 2016; SCC 249 of 2016

1. Donald Johnston has pleaded guilty to two offences, as follows:

(a) trafficking in a controlled drug other than cannabis (heroin), arising under s 603(7) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 10 years; and

(b) trafficking in a trafficable quantity of cannabis, arising under s 603(5) of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years.

2. Through telephone intercepts recorded in May and June 2016 and from other sources, the police became aware of the following events:

(a) on 21 May 2016, Mr Johnston sold a quantity of cannabis to a man named Sasha;

(b) on 10 June 2016, Mr Johnston arranged to meet another man to sell cannabis;

(c) on 13 June 2016, Mr Johnston supplied a woman named Jules with a quantity of cannabis, and later on the same day, Mr Johnston sold a man two pounds of cannabis;

(d) on 15 June 2016, Mr Johnston arranged to meet a man at a church in connection with the sale of cannabis;

(e) on 17 June 2016, when Mr Johnston was out of town, he arranged for his son to deliver a package that contained around a pound of cannabis to a man; and

(f) on 25 June 2016, Mr Johnston went to a house in Downer where he purchased an unknown quantity of cannabis from another man, Van Bui.

3. In the afternoon of 9 July 2016, Mr Johnston went to the same place in Downer with $20,000 in cash, where he met Mr Bui again and exchanged the $20,000 for a foil packet of heroin (173gm of substance, with 73.3% purity, giving a pure weight of 127.3gm) and a 1.36kg (roughly 3-pound) bag of cannabis. Mr Johnston intended to sell the cannabis and at least some of the heroin.

4. Mr Johnston was stopped by police shortly after leaving the Downer house and was found in possession of the heroin and cannabis.

5. He was arrested that day, and charged on 11 July 2016 with the offences for which I am to sentence him today.

6. Mr Johnston did not initially apply for bail, and remained in custody until 19 December 2016, when he was granted bail on conditions including reporting requirements, the payment of a $15,000 surety, and the maintenance of employment. Until 19 December 2016, Mr Johnston had spent 163 days in custody in relation to these offences.

7. As noted, Mr Johnston was charged with the offences on 11 July 2016. On 26 October 2016, at the fourth mention, he pleaded guilty in the Magistrates Court to the cannabis trafficking offence and was committed to this Court for sentence. On the same day, he pleaded not guilty to the heroin trafficking charge and was committed to this Court for trial. The trial was set down for 20 March 2017, but on 2 March 2017 he pleaded guilty before this Court to the heroin trafficking charge.

8. The plea on the cannabis offence is accepted as an early plea. The plea on the heroin offence came close to the last minute. It will involve a smaller sentencing discount.

9. As well as the statement of facts, the following material was tendered by the prosecution and is in evidence before me:

(a) certificates from the Australian Government National Measurement Institute and the ACT Government Analytical Laboratory about the analysis of the substances seized when Mr Johnston was arrested;

(b) a criminal history;

(c) a pre-sentence reported dated 27 June 2017;

(d) CADAS reports dated 29 June 2017 and 6 September 2017;

(e) an intensive correction order assessment report dated 6 September 2017;

(f) the sentencing orders in Mr Bui's matter; and

(g) a police statement about the valuation of seized drugs which was initially exhibited without objection but has not ultimately been relied on, since it related to a different accused person and, apparently, a different quantity of heroin (it provided no information about the value of cannabis).

(a) a Directions ACT report dated 5 July 2017 from Barry Mitchell;

(b) a Certificate of Completion of an Alcohol Drug Awareness (harm) Prevention Training course on 17 February 2017;

(c) a patient summary from Directions ACT which suggests that Mr Johnston has been attending the Smart Recovery program;

(d) a reference from Morris Merhi, Mr Johnston's current employer, for whom he has been working since 6 January 2017; and

(e) a letter from Mr Johnston.

11. Mr Johnston gave brief oral evidence; he read out the letter already mentioned, and said that he and his partner were taking part in one counselling session each week and up to two Smart Recovery Programs a week. He was still on a methadone maintenance program, having used heroin for 15 or 20 years to deal with back pain resulting from two spinal injuries, and had funded his supply of heroin through his sale of cannabis.

12. In considering the objective seriousness of the offences, I have had regard to the following matters.

13. Both offences carry the same maximum penalty, and it is not easy to identify their different levels of seriousness, although some comments can be made about where each of them sits within the spectrum covered by the provision creating the offence.

14. The legislation relies on the concepts of trafficable, commercial and large commercial quantities. For present purposes, it is enough to note that the presence of at least a trafficable quantity of the drug establishes a presumption of intention to traffic the drug. The presence of at least a commercial quantity of the drug invokes a more serious offence with a 25-year maximum term of imprisonment.

15. Without going into too much mathematical detail, it may be noted that the amount of cannabis seized was less than 5 times the trafficable quantity of cannabis, whereas the amount of heroin seized was 25 times the trafficable quantity of that drug. Each amount, on the other hand, was roughly 5% of the commercial quantity of the drug concerned.

16. There is not a lot of value in such calculations. Nevertheless, the defence concedes that the heroin offence involved a large quantity of heroin, that the potential profit from its sale would have been large, and that the offence is more serious than the cannabis offence, even having regard to Mr Johnston's heroin addiction, but concedes that both offences justify prison sentences.

17. The Crown says that the high level of purity of the heroin was an aggravating factor, because it increases the danger to the public resulting from the offence.

18. The Crown also refers to the evidence that Mr Johnston was willing to involve his son in his cannabis trafficking, and the likelihood that this would lead his son into similar forms of offending; I agree that this is an aggravating factor of the cannabis offence.

19. The evidence is that the trafficking and cannabis was regular and ongoing, and the offence for which Mr Johnston is being sentenced encompasses that ongoing activity as well as the possession of the cannabis seized on the day of his arrest.

20. Taking all these matters into account, I agree with the parties however that the heroin offence is the more serious offence.

21. Mr Johnston gave evidence that he had never before obtained heroin from Mr Bui, but on this occasion, after a number of previous offers of heroin and other drugs, he had been offered a very good price and had succumbed to the pressure to accept the heroin. This claim is supported by the apparent absence of references to heroin in the phone intercept material and in Mr Johnston's criminal history, and is consistent with the information he gave to the pre-sentence report author and to the intensive correction assessor. Mr Johnston was not cross-examined about this claim.

22. Neither to the pre-sentence report author, nor in his oral evidence, did Mr Johnston express anything that could be described as remorse, but the Crown accepts his pleas of guilty as some indication of remorse.

23. I conclude that the cannabis offence is slightly above a low-range example of the offence, while the heroin offence tends towards mid-range seriousness.

24. I have also had regard in this sentencing to Mr Johnston's subjective circumstances.

25. Mr Johnston is now 54. His criminal history in the ACT consists mainly of an enormous number of relatively minor traffic offences and a few relatively minor dishonesty offences, a conviction for an offence involving dealing in cannabis in 1990, and a couple of drug possession offences, in 1988 and most recently in 2008.

26. The pre-sentence report provides the following information about Mr Johnston's background:

Mr Johnston reported he was born in Canberra, one of four children born to his parents' marriage. He described a childhood marred by physical violence from his father, his sister's death in a house fire when she was 14 years old and his parents' alcohol abuse. He reported he was sent to a boys' home for a six-month period when he was 15 years old and described that period as "the best six months of my childhood" and stated it was the first time in his life he had the benefit of structure.

Mr Johnston stated his mother is now deceased and despite their poor relationship in the past he now enjoys a positive relationship with his father. Mr Johnston's sister confirmed the offender's background information.

Mr Johnston reported three significant relationships. The first of these ended after two years when his former partner won some money and relocated abroad. Mr Johnston reported his second partner left after two years with their son, who he was unable to see again until his son turned 18 years. Mr Johnston reported his third relationship produced three children, now aged 27, 19 and 18 years old, and he and his partner have separated a few times. He stated they are currently reconciled and reside together with one of their sons as per his bail conditions. Mr Johnston's partner confirmed the relationship and stated she was hopeful they would continue to co-habit post-sentencing.

Mr Johnston reported he left school prior to completing Year 9 and has since worked in a number of roles including unskilled and semi-skilled positions. He stated he was unemployed between 1991 and 2017 when he commenced employment with a car detailing company.

[Mr Johnston] reported he is currently in receipt of wages and claimed to have no financial issues.

Mr Johnston's partner indicated the offender's primary social network consisted of drug-users and fellow car enthusiasts. She said the offender has since ceased contact with all antisocial peers and has begun to spend more time in activities with his family.

27. I note that Mr Johnston gave evidence before me that among the family activities recently taken up are kayaking and ballroom dancing with his partner. Returning to the pre-sentence report:

Mr Johnston reported he sustained a back injury in a motor cycle accident in 1984 and continues to struggle with this injury. He noted he is currently undertaking treatment for a blood borne virus, but denied he contracted this virus through drug use. ... Mr Johnston reported he is prescribed pharmacotherapy to address his opiate dependency, however denied any history of mental health issues.

28. Mr Johnston has rarely used alcohol, explaining that this is a reaction to the alcohol abuse of his parents. He has, however, used cannabis for around 30 years from age 15, and heroin from the age of 26 until he was remanded in custody in July 2016. As noted in the pre-sentence report, he claims that his heroin use has reflected ongoing problems with pain from back injuries dating back many years.

29. Mr Johnston admits to having funded his heroin use by selling cannabis; it is not clear whether cannabis profits also supported other aspects of his lifestyle.

30. Mr Johnston has given evidence of rehabilitation efforts since being charged, including dosing with methadone, accepting counselling and participating in Smart Recovery sessions; that evidence is supported by documents from Directions ACT about Mr Johnston's rehabilitation activities both in the AMC and since he was released on bail in December last year.

31. Mr Johnston's co-offender, Mr Bui, who was sentenced only for bringing the cannabis from Sydney to deliver to Mr Johnston, and who was to have been paid $1,000 for that work, was sentenced to 10 months imprisonment, reduced from 12 months having regard to his guilty plea, back-dated to take account of 37 days pre-sentence custody and the remainder immediately suspended with a 12-month good behaviour order.

32. In sentencing Mr Bui, I noted his expressed remorse, his explanation that he needed the money to help two sick family members who still lived in Vietnam, and his quite "relatively low-level role in the cannabis distribution". He was sentenced on the basis that he was a courier and not the seller of the drugs, and I am satisfied that while he might appear to be higher up the distribution hierarchy than Mr Johnston, Mr Bui's offence was less serious than Mr Johnston's.

33. General deterrence is always important for offences involving drug trafficking, which is an activity usually involving a considered weighing of risks and rewards. I am satisfied that despite his current enthusiasm for his new way of life, Mr Johnston still needs to be specifically deterred from slipping back into his old activities.

34. While the appropriateness of prison terms is agreed, there is a question of how they should be served.

35. After receiving the evidence in this matter, I ordered an intensive correction order (ICO) assessment for Mr Johnston. The assessment is that Mr Johnston has a low to medium risk of general re-offending, which would be reduced if he addresses his illicit drug use, that he is suitable for an ICO, and that if an ICO is made, supervision would target Mr Johnston's illicit drug use. Mr Johnston was also assessed as suitable for a community service order.

36. I consider that Mr Johnston's rehabilitation would be more effectively promoted by an ICO than by a period of full-time custody and that the ICO would, however, be sufficiently burdensome on Mr Johnston to provide also an element of punishment. Accordingly, I propose to make an ICO in respect for the sentence, which will also include a community service order.

37. Because the sentence will run for more than two years, I note for the purpose of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), that I consider such an order to be appropriate, having regard:

(a) to the nature of the offences concerned and the nature of the harm caused to the community by such offences;

(b) to the fact that Mr Johnston seems unlikely to pose a risk to anyone in the community while he is serving his sentence; and

(c) to Mr Johnston's culpability for the offence having regard to all the circumstances.

38. As noted, Mr Johnston has spent about five and a half months in custody already in respect of these offences. The prohibition on combining an ICO with a period of fulltime imprisonment (ss 29(1)(b) and 80 of the Sentencing Act) seems to preclude me simply backdating the sentence and then making an ICO for the remaining term of the sentence. It makes sense that an ICO should not be made for an offender who has been in custody until he or she is sentenced, because it is clear that a proper ICO assessment cannot be made while an offender is in custody - the assessment involves considering such matters as accommodation arrangements and scope for employment, as well as, significantly, an offender's capacity to take responsibility for his compliance with the intensive supervision obligations. That capacity in particular clearly cannot be assessed for a person who is living in a strictly controlled and regulated environment such as a prison.

39. On the other hand, there seems to be no good reason why a person who has spent some time in custody before being granted bail, and who has then been able to be assessed for an ICO during a bail period, should not be suitable for such an order.

40. A sentence backdated to take account of pre-sentence custody that finished some time before the sentence date would, nevertheless, appear to fit the description of a sentence including a period of full-time custody and accordingly to be excluded by the provisions already mentioned.

41. One option for making an ICO for an offender who has already served some presentence custody is simply to ignore the period of pre-sentence custody, but unless that period is very short, this seems to be an unsatisfactory and unfair requirement.

42. Another option that has been suggested is that the period of pre-sentence custody should be accounted for by a simple reduction in the term of the sentence actually imposed. I have in previous sentencing remarks (R v Barlow [2017] ACTSC 90; R v Ingram [2016] ACTSC 199) considered and rejected that approach, partly because it seems to me to be a generally inappropriate manipulation of the circumstances and the sentences to get around the provisions of the Sentencing Act, but also because it compromises the sentencing process in the sense that the sentence actually recorded incorrectly suggests a sentence that is more lenient than was intended and that, in fact, took effect.

43. Especially in a small jurisdiction like the ACT, every sentence imposed contributes to the development of recognisable sentencing practices and adds to the stock of comparable sentences for consideration in future proceedings. The real severity of those sentences should not be compromised in order to get around a legislative provision, however inappropriately restrictive that provision seems to be.

44. However, it does seem that at least in cases involving two or more offences, there may be further options which permit an ICO to be made, while still imposing proper sentences and not depriving an offender of the benefit of pre-sentence custody.

45. One option which I have seen used from time to time is to deal with one or more of the offences solely by the application of the pre-sentence custody and to deal with the other offence or offences solely by sentences beginning on or after the sentence date. This provides a satisfactory outcome if the pre-sentence custody period happens to be an appropriate period of custody by which to address one or some of the offences, and if the sentences involved can be appropriately separated without implementing an inappropriate level of accumulation. Unfortunately, that approach does not appear to be available here, because the pre-sentence custody period is too short to be a proper sentence for either of the offences I am dealing with.

46. A variation on that option which would work in the current context involves imposing two proper sentences, without any backdating, but with more concurrency than might otherwise seem to be appropriate, to provide general recognition of that pre-sentence custody. Of course, an unusual degree of concurrency also has the capacity to detract from a sentence's contribution to sentencing practice, but in general terms the concurrency of any two sentences imposed in a particular sentencing exercise is not of great significance in the consideration of sentencing practices and comparable sentences. I understand that concurrency is not currently recorded anywhere in the ACT sentencing database.

47. Mr Johnston, please stand. I record convictions on one charge each of trafficking in heroin and trafficking in cannabis.

(a) for trafficking in cannabis - to 13 months imprisonment, reduced from 18 months for your early plea of guilty; and

(b) for trafficking in heroin - to 27 months imprisonment, reduced from 30 months in recognition of your very late plea of guilty.

49. For the reasons already explained, the sentences I have just specified are to be served as follows:

(a) for the cannabis offence, from today, 14 September 2017 until 13 October 2018; and

(b) for the heroin offence, from 14 November 2017 until 13 February 2020.

50. That is, the two sentences run concurrently for 11 months, representing roughly 6 months which would have seemed to me an appropriate period of concurrency in the abstract, and roughly 5 months representing pre-sentence custody not otherwise able to be accounted for.

51. That gives a total sentence of 29 months imprisonment, and I now order that the sentence be served by way of an ICO. The ICO is subject to the standard core conditions for ICOs. I note the advice from the assessor that your illicit drug use will be particularly targeted under the implementation of the order.

52. I also order that in respect of the sentence for the heroin charge, during the term of the ICO, you perform 160 hours of community service, and I impose one final condition, that before close of business today, which you should assume is 4 pm, you attend Corrective Services at Level 1, 249 London Circuit, to arrange supervision under your ICO and also, specifically, your community service arrangements.

53. Now, Mr Johnston, I need to try and explain what the significance of this order is to you. I assume that your assessor has already explained to you how an ICO would work, and you may already have talked to Mr Whybrow about it, but I also need to say a few important things to you.

54. Your sentence will start to run today, and it will run for 2 years and 5 months.

55. If you comply with all your ICO requirements, do as your supervisor tells you, complete your community service, and generally keep out of trouble, then at the end of that 2 years and 5 months, you will have finished your sentence without any time in custody, or without any further time as it turns out. If you commit another offence during the 2 years and 5 months that has got a prison sentence attached to it, and that means an offence that carries a maximum term of imprisonment, not necessarily an offence that you get sentenced to imprisonment for, you will come back here and I will have to re-sentence you.

56. The expectation under the legislation seems to be that at that point, if you came back here having committed another offence that carries a prison term, you would be required to serve out the rest of your term in full-time custody. That is not an absolute guarantee, but you should assume that that is what will happen if you commit another offence with an imprisonment penalty in the next 2 years and 5 months.

57. I should particularly warn you, Mr Johnston, and I am warning a lot of people in this context, although it should certainly not be a risk for you if you are otherwise complying with your ICO conditions, that drug-driving as a repeat offender carries a prison sentence, a maximum sentence of three months, and I think there are a number of people who have been taken by surprise by that.

58. I understand you don't have any offence on your record at the moment that would make you a repeat offender, but if in the next 2 years and 5 months you were picked up twice for drug-driving, then that second one would put you in breach of your ICO, even if you were relatively leniently dealt with for the actual offence.

59. Apart from committing offences, if you breach the ICO or don't comply with the directions from your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings (and I understand you can't get more than three warnings in a year), and moving up to putting you in prison for short periods, either three days or seven days at a time, to remind you that this is a serious matter.

60. Finally, if your supervisor or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the ICO may be cancelled, and you will then find yourself serving the rest of the sentence, so from that date until the end date that I have already specified, in full-time custody without ever coming back to the Court. It won't be a discretionary matter for the Court, it will be entirely up to Corrective Services.

61. In agreeing to this order, Mr Johnston, you are taking a bit of a gamble, especially given your long-term heroin use, so you do need to make sure that you take it seriously. As I have said, if you don't take it seriously, you are at risk of serving possibly quite a lot of your sentence in full-time custody, and possibly without even anything like a parole period to look forward to.

62. If you have any particular questions about what I have just said, please ask the court officials when you sign your document, or Mr Robertson or Mr Whybrow.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.