R v Keir [2017] ACTSC 131

Crimes Act 1900 (ACT) s 114C

Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10 and 33(1)(za)

Firearms Act 1996 (ACT) s 249 (1)

Bui v R [2015] ACTCA 5

Lawrence v R [2007] ACTCA 10; 226 FLR 163

R v Hoang [2015] ACTSC 138

R v Phay [2015] ACTSC 238

R v Truong [2015] ACTSC 244

Office of the ACT Director of Public Prosecutions (Crown)

SCC 211 of 2015; SCC 212 of 2015; SCC 1 of 2016

1. On 17 March 2017, the offender was convicted by a jury of a single offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT) (the Code).

2. The case presented to the jury was particularly strong. The verdict indicates an acceptance by the jury of the offender's possession of methylamphetamine, hidden in canisters inserted into an oxygen cylinder, $10,000 in cash, concealed in another cylinder and a quantity of ammunition, contained in a third cylinder. The offender did not lead any evidence to rebut the presumption raised by s 604 of the Code.

3. Besides sentencing the offender for the above charge, it is also necessary for me to deal with two summary matters transferred from the Magistrates Court. These are the possession of $10,000 in cash, contrary to s 114C of the Crimes Act 1900 (ACT), and the possession of ammunition, contrary to s 249(1) of the Firearms Act 1996 (ACT). These two matters were left for me to decide.

4. In my view, the two charges are easily proved. As I have said, the evidence before the jury revealed a very strong prosecution case. The case in respect of the two summary charges is equally strong.

5. The cash was found in a cylinder behind the driver's seat of the offender's white Holden utility. DNA analysis of the cylinder revealed that the offender's DNA was the source of the major component of the DNA identified within the cylinder (Exhibit S in the trial).

6. The relevant ammunition is that which was found in the black cylinder and includes the two shotgun shells located by Constable Abraham in a pair of black gloves. DNA was not detected in the cylinder that had contained the ammunition. The cylinder was, however, located in the offender's garage. DNA was found on the two shotgun shells and it was overwhelmingly linked to the offender. The ammunition in the cylinder was made up of shotgun shells and 79 rounds of .22 shells.

7. Exhibit A, tendered today, confirms that the offender was never licensed to possess ammunition.

8. I am satisfied beyond reasonable doubt of the guilt of the accused on the two summary offences. No submissions were made to the contrary. He is convicted accordingly.

9. The trafficking offence carries a maximum sentence of ten years imprisonment and/or a fine of $150,000. The quantity of the drug involved was 82.643 g. Analysis (Exhibit L in the trial) revealed that it contained methylamphetamine, ephedrine and pseudoephedrine. Expert evidence from Senior Constable Humphrey suggested that the value of the drug on the public market was between $25,000 and $82,500, depending on the quantities in which it was sold.

10. The summary offences carry a maximum sentence of imprisonment for two years and/or a fine of $30,000 for the possession of the cash and a fine only of $1,500 for the possession of the ammunition.

11. The matter was listed for sentence on 17 May 2017. On that day, the offender sought an adjournment because he had recently been arrested for separate offences. It was not then known if the new charges would impact on sentencing. The Crown consented to the adjournment.

12. Another matter that arose for consideration today was a sentence imposed by Refshauge J on 15 July 2016 (R v Keir [2016] ACTSC 266). Normally, it would fall on me to resentence the offender for the offences then dealt with. However, the Crown has submitted that I should not do so because the offender is facing further serious criminal charges, either later this year or early next year, relating to offences alleged to have occurred within the period of the Good Behaviour Orders made by Refshauge J. I agree with the Crown's position that the matter should not proceed today but do not comment on the technical question of whether resentencing by me would prevent the Good Behaviour Order made by Refshauge J being revisited if the offender was found guilty of the matters still to be dealt with.

13. Accordingly, I am now sentencing the offender in respect of the trafficking offence and the two summary matters.

14. Another complication is the calculation of the time the offender has spent in custody for the matters for which I am now sentencing him. The Crown says the period is five months and ten days but also requires consideration of the time taken into account by Refshauge J in paragraph [55] of his judgment. His Honour did not make any specific calculation but took a more global approach. I think the approach I should take is to backdate the sentences I will impose for a period of seven months, which includes the five months and ten days just mentioned. This means my sentences will be backdated to 15 November 2016.

15. I conclude that, on the basis of the jury's conviction of the offender, the jury was satisfied beyond reasonable doubt that the accused possessed the methylamphetamine, that he stored it in the cylinder and that he had the intention of selling it, even if a portion was retained for his own or his partner's use.

16. Having regard to the amount of the drug involved, the offence must be regarded as being of medium objective seriousness.

17. The offender is 37 years of age. He has a substantial criminal record.

18. The offender was born in Canberra. His parents separated when he was six years old. He was raised by his mother. He maintains a good relationship with her and his two siblings.

19. The offender left school after year 10. He has primarily been employed in the building and cleaning industries.

20. The offender has two children from a prior relationship. He remains in contact with them, as well as with his ex-partner. He has been in his current relationship for some months.

21. According to the Pre-Sentence Report, the offender has not used illicit drugs for the last 12 months. This is following a period of significant methylamphetamine use. However, testing on 11 May 2017 did reveal a return to drug use. One can only conclude that the offender is still struggling with his drug use and his prospects of rehabilitation are not overly positive.

22. The offender has not expressed any remorse for his offence. Based on the Pre-Sentence Report, I understand he maintains his innocence and is pursuing an appeal.

23. Although the two summary offences can be viewed as serious in themselves, they form an integral part of the events of the night of 15 September 2015. Any sentence imposed in respect of these offences should run concurrently, both with each other and with the sentence to be imposed for the trafficking offence. I understood the Crown to view this as approach as appropriate.

24. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7. I am also very mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

25. I have paid particular regard to Bui v The Queen [2015] ACTCA 5 (Bui), R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238, Lawrence v The Queen [2007] ACTCA 10; 226 FLR 163 (Lawrence) and R v Truong [2015] ACTSC 244.

26. In Bui, at paragraph [41], the ACT Court of Appeal summarised some of the principles to be applied in sentencing for trafficking offences:

Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:

(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50;

(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at 438;

(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [2002] NSWCCA 300; (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

27. In Lawrence, at paragraph [6], the ACT Court of Appeal quoted the sentencing Judge:

Drug dealing is a blight upon the Australian community and it seems to me that the consideration for general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.

28. The Crown provided me with a table of trafficking cases but conceded that none of them is precisely comparable to the current matter.

29. The seriousness of trafficking is reflected in the maximum penalty of 10 years imprisonment. In my view, a sentence of imprisonment is the only available option. It was not suggested otherwise. In particular, no submission was made that a suspended sentence or an Intensive Corrections Order should be considered.

30. Taking all of the above matters into account, I think the appropriate orders are as follows:

i. For the offence of possess property suspected of being proceeds of crime, the offender is convicted.

ii. For the offence of possess ammunition, the offender is convicted.

iii. The conviction for the offence of trafficking in a controlled drug other than cannabis, namely methamphetamine, is confirmed.

iv. For the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, the offender is sentenced to a term of imprisonment of two years and six months to commence on 15 November 2016 and end on 14 May 2019.

v. For the offence of possession of property suspected of being proceeds of crime, the offender is sentenced to a term of imprisonment of six months to commence on 15 November 2016 and end on 14 May 2017.

vi. For the offence of possess ammunition, the offender is fined the sum of $1,000 with no time to pay.

vii. I set a Non-Parole Period of 18 months to commence on 15 November 2016 and expire on 14 May 2018.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.