CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - money laundering - traffic in a controlled drug other than cannabis - plea of guilty.

R v Hoang [2015] ACTSC 138

R v Hodge [2015] ACTSC 214

R v Lou [2017] ACTSC 127

R v Lou (ACTSC, 8 December 2011, Higgins CJ, unreported)

R v Phay [2015] ACTSC 238

R v Truong [2015] ACTSC 244

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581

1. On 26 May 2017, the offender pleaded guilty to seven counts in an indictment dated 1 June 2016.

2. On 8 October 2015, the offender presented himself to the City Police Station carrying a backpack containing $84,190 in cash. He told police that he was a drug dealer and needed to be arrested.

3. The offender made admissions in a recorded interview. His pleas of guilty and his voluntary surrender and assistance to the police entitle him to a discount. They also indicate his acceptance and recognition of his wrongdoing.

4. Ms Musgrove, on behalf of the offender, suggested a discount of 40%, relying on R v Hodge [2015] ACTSC 214 and R v Ellis (1986) 6 NSWLR 603. I do agree a substantial discount is appropriate but, having regard to the words of Burns J, I do not think too much emphasis should be given to the offender's voluntary assistance. Burns J said, when dealing with a pre-trial application in this matter, at paragraph [25]:

On the evidence I am satisfied that the applicant was suffering from a drug-induced psychosis at the time that he attended the City Police Station on 8 October 2015. The effect of that psychosis was that he felt compelled to make the disclosures to police which he then made. It is probable that he did not have the capacity to choose to do otherwise.

5. Ms Musgrove also suggested I apply the principles set out in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581 ('Verdins'). She submitted that the offender fell within the bounds of these principles so that general deterrence was not as great a factor as it might otherwise have been. I disagree. I do not think this offender's moral culpability was overborne by his mental illness. I will, however, take his mental illness into account in the sentencing process.

6. The offences and their respective maximum penalties are as follows:

Count 1 - Money laundering, contrary to s114B of the Crimes Act 1900 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 2 - Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 3 - Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 4 - Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 5 - Traffic in a controlled drug other than cannabis, contrary to s 603 (7) of the Criminal Code 2002 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 6 - Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

Count 7 - Traffic in a controlled drug other than cannabis, contrary to s 603 (7) of the Criminal Code 2002 (ACT)

Maximum penalty: 10 years imprisonment and/or a fine of $150,000

7. The offender is well known to the courts in the Australian Capital Territory, particularly in relation to illegal drugs. He is also well known to the authorities in New South Wales. According to the pre-sentence report, the offender:

[H]as a history of non-compliance for failing to accept the supervision of this Service and not complying with his condition not to consume intoxicating liquor or any illicit drug, including cannabis. Most recently, Mr Lou's Bail Order was breached for testing positive for amphetamines, methamphetamine, morphine, codeine and 6-monoacetylmorphine (heroin), on 3 May 2017 and 22 June 2017.

8. The offender is 34 years of age. He was born in New South Wales. He moved to Canberra about 15 years ago. He is in regular contact with his family, who remain in Sydney. He is currently in a de facto relationship of about four years duration. He has five or six children (depending on which report is read) from a previous relationship, between the ages of three and 14. The children are all subject to care and protection orders. He sees them occasionally.

9. The offender's current partner is expecting a child in the next few weeks. His incarceration will make the upbringing of the child more difficult for her.

10. The offender left school after Year 10. His only regular employment seems to have been in a mobile car detailing business. He operated the business for about two years.

11. The offender began using illegal drugs many years ago. The pre-sentence report says that he abstained from heroin when he was imprisoned at the age of 24. He resumed daily use about three years later. He will be given another opportunity to abstain from heroin.

12. The offender is also a long time user of methamphetamine. This habit continues but to a lesser extent than previously, apparently because of the expense involved. Testing indicated the offender has a "severe level of use" of illegal drugs.

13. On 28 June 2017, Mr Lou was granted bail to undertake the one80TC program in Sydney.

14. The offender has been diagnosed with drug induced psychosis and depression. He has had contact with a number of mental health teams. In April of this year, he was admitted to a mental health unit following a fall. He had presented to a hospital emergency department with paranoid delusions.

15. He apparently did not co-operate with the mental health team and was discharged on 13 April 2017. The offender is on medication for his mental health issues and is, nevertheless, compliant with the treatment regime.

16. The offender told the authors of the pre-sentence report that he understands the seriousness of his behaviour and "expressed his desire to live a life free of crime."

17. The pre-sentence report provides that there is a high risk of general re-offending. The authors state:

It will be crucial for [the offender] to understand what the change process will require of him and make the full commitment towards this goal, to achieve the desired outcome.

18. In other words, the offender's future is bleak unless he deals with his drug problems.

19. This sentiment is taken up in the Court Alcohol and Drug Assessment Service (CADAS) report, dated 27 July 2017. The report emphasises the offender's mental instability and its relationship to his use of methamphetamine. The report refers to a drug induced psychosis and states:

While CADAS supports Mr Lou's intention to attend a residential rehabilitation program this worker recommends that Mr Lou remain on opioid replacement therapy especially while he is mentally unwell. Pharmacotherapy is the evidence-based best practice treatment for opioid dependence, of which Mr Lou has a lengthy history.

20. The report recommends the Karralika program and notes that the offender has failed to attend at One80TC on two occasions that month. The report states, however, that:

While One80TC staff have not had any contact with him for 2 weeks, they would still consider admitting Mr Lou.

21. The report also states that, earlier in July, the offender had contact with a mental health unit, has had suicidal ideation and also, as I read the report, made at least two attempts to take his own life.

22. I adjourned the proceedings on two separate occasions to allow the offender to commence the detoxification process and also enter into a rehabilitation program. I took the view that 'coming off drugs' is a particularly difficult exercise and that any person attempting to do so should be provided with as much opportunity as is reasonable.

23. The offender did enter the One80TC program in Fairfield in New South Wales but was evicted when it was discovered that he was using drugs and offering them to other participants in the program.

24. The effect of the offender's eviction from the program was to place him in breach of his bail. He was arrested and brought to court on 22 August 2017, when he appeared before Penfold J. He was remanded in custody until the breach of bail allegation was dealt with on 6 September 2017 by her Honour. Bail was revoked and he remained in custody pending his sentence hearing today.

25. The offences can be broadly described as trafficking in drugs and money laundering. Trafficking offences must draw the strongest condemnation from the courts. People who traffic in illegal and harmful drugs provide the pathway for members of the community, frequently teenagers, to succumb to the ravages of drug use, including addiction, mental health problems and entry into crime to sustain their addictions.

26. Many cases, including R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238 and R v Truong [2015] ACTSC 244, have emphasised the attitude that courts should take to trafficking offences.

27. I have little doubt that all of the money laundering offences have their source in the offender dealing in drugs. The different counts refer to different amounts of money. The largest cash sum seems to be the $84,190, found in the accused's backpack. In addition, the Subaru motor vehicle was purchased for $48,000.

28. In my view, the money laundering offences should generally be treated as being of medium objective severity, although account should be taken of the smaller sums or property involved.

29. The two trafficking offences must be distinguished from each other. Count 5 relates to 3.41 g of methylamphetamine, which is well below the defined trafficable quantity of 6 g. This renders the offence as being of low objective seriousness.

30. Count 7 concerns 89.8 g of methylamphetamine, which is well above the defined trafficable quantity. This makes the offence objectively serious.

31. As far as the offender's record is concerned, this will be the third occasion on which he is being sentenced for offences of this type. In 2011, in R v Lou (Unreported, 8 December 2011, Supreme Court of the ACT, Higgins CJ) Higgins CJ gave him the benefit of significant leniency. His Honour's final remarks, made in the hope of the offender taking a different attitude to life, have not come to fruition. It is also necessary for me to sentence the offender for breach of the Good Behaviour Bond imposed by the Chief Justice.

32. Having regard to the sentences that I intend to impose for the current offences, I will deal with the breach by resentencing the offender to the balance of his sentence, but it will run concurrently with the other sentences.

33. When sentencing, it is important to always bear in mind the objects and purposes of sentencing and also to ensure that a person is not sent to prison when there is an appropriate alternative. Imprisonment should effectively be a final sentencing resort.

34. The offender is a drug addict. The sentencing process must take this into account and try to achieve his rehabilitation, if possible. In this case, the offender has been given every opportunity to enter into programs to assist him. I do not know if he has failed because of a lack of effort or because the pervasiveness of his addiction has prevented any progress. The reality is that, subject to any drug programs that he may be able to take advantage of in prison, the time has come for him to commence his sentence.

35. The crimes themselves, and their individual seriousness, demand a full-time prison sentence. This is also called for by the necessity for deterrence at every level.

36. The unique background to the discovery of the offences makes it difficult to separate them in terms of their chronological sequence or whether or not they form part of one or more criminal enterprises. The issue has some significance when considering the question of concurrency or accumulation of sentences. It is important in this case to avoid an overly long head sentence. Principles of totality are important.

37. Accepting a degree of arbitrariness in my approach, I am going to generally apply concurrency to the offences involving lesser amounts of property or money and some accumulation to the remaining offences. I have applied a discount of approximately 35% to the respective terms of imprisonment to reflect the matters set out in paragraph [3] and [4], above.

38. There has been no suggestion in this case that an Intensive Corrections Order or a suspended sentence is appropriate.

(a) In respect of count 1, money laundering (CC 2015/11009) the offender is sentenced to a term of imprisonment of 2 years to commence on 17 August 2017 and end on 16 August 2019.

(b) In respect of count 2, money laundering (CC 2015/11014) the offender is sentenced to a term of imprisonment of 2 months to commence on 17 August 2017 and end on 16 October 2017.

(c) In respect of count 3, money laundering (CC 2015/11013) the offender is sentenced to a term of imprisonment of 2 years to commence on 17 February 2018 and end on 16 February 2020.

(d) In respect of count 4, money laundering (CC 2015/11012) the offender is sentenced to a term of imprisonment of 3 months to commence on 17 February 2018 and end on 16 May 2018.

(e) In respect of count 5, traffic in a controlled drug other than cannabis (CC 2015/1108) the offender is sentenced to a term of imprisonment of 6 months to commence on 17 February 2018 and end on 16 August 2018.

(f) In respect of count 6, money laundering (CC 2015/11011) the offender is sentenced to a term of imprisonment of one year to commence on 17 February 2018 and end on 16 February 2019.

(g) In respect of count 7, traffic in a controlled drug other than cannabis (CC 2015/10133) the offender is sentenced to a term of imprisonment of 3 years to commence on 17 February 2018 and end on 16 February 2021.

(h) The overall sentence is 3 years and 6 months commencing on 17 August 2017 and ending on 16 February 2021.

(i) Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT):

• (i) The Good Behaviour Order imposed by Higgins CJ on 8 December 2011 (SCC 263 of 2011) is cancelled.
• (ii) The offender is re-sentenced for the offences for which he was sentenced by Higgins CJ on 8 December 2011, as follows:
  1. In respect of the offence of trafficking in a controlled drug, namely methylamphetamine (CC 2006/8328), the offender is sentenced to 16 months imprisonment, to commence on 17 August 2017 and end on 16 December 2018.
  2. In respect of the offence of trafficking in a controlled drug, namely heroin (CC 2006/8330), the offender is sentenced to 16 months imprisonment, to commence on 17 August 2017 and end on 16 December 2018.

(j) I set a non-parole period of 2 years commencing on 17 August 2017 and ending on 16 August 2019.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

(k) The offender's mental health status and in particular his suicidal ideation and attempts should be brought to the attention of Corrective Services.