[2016] ACTSC 278

1. Mathew Massey be convicted of trafficking in methylamphetamine on 9 January 2013.
2. Mathew Massey be sentenced to two years and one month imprisonment to commence on 12 February 2016.
3. A non-parole period of 13 months is to commence on 12 February 2016 and end on 11 March 2017.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - covert police operation - trafficking in methylamphetamine - consideration - subjective circumstances - extensive criminal history - serious offences - conditional liberty at the time of

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

NSW Police Law Enforcement (Controlled Operations) Act 1997 (NSW)

Bui v The Queen [2015] ACTCA 5

Lawrence v The Queen [2007] ACTCA 10; [2007] 1 ACTLR 158; 171 A Crim R 286

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Nguyen v The Queen [2013] ACTCA 11

R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Hoang [2015] ACTSC 195

R v Huat Phay [2015] ACTSC 238

R v Licciardello [2011] ACTSC 96

R v Lowe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 December 2013)

R v McMahon [2014] ACTSC 280

R v Pye (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 August 2012)

R v Todd [1982] 2 NSWLR 517

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1. The courts have said on many occasions that the distribution of illicit drugs through the community is a social evil and the criminal courts are required to take appropriate action to assist in the reduction of its trade.

2. Thus, the Court of Appeal pointed out in Lawrence v The Queen [2007] ACTCA 10; [2007] 1 ACTLR 158; 171 A Crim R 286; by citing from the trial judge, though in the context of an offender engaged in trafficking by commenting (at [6]):

offences which were motivated solely for financial gain, and by a person who was not himself addicted or otherwise affected by personal drugs, his Honour was obviously drawn to his conclusion that:

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

3. Now appearing before me for sentence is Mathew James Massey, who has pleaded guilty to trafficking in methylamphetamine.

4. Trafficking in methylamphetamine is an offence against s 603(7) of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.

5. The Statement of Facts was tendered without objection. I find the following facts from it.

6. In January 2013, a cross-border operation between New South Wales and the ACT was authorised under the NSW Police Law Enforcement (Controlled Operations) Act 1997 (NSW).

7. An undercover operative had a number of mobile telephone conversations with Mr Massey, which were recorded. During the phone calls, Mr Massey agreed to sell methylamphetamine to the undercover officer.

8. Arrangements were made for Mr Massey to meet the undercover operative at a Gungahlin Sports Club and, on 9 January 2013, the undercover operative drove to the car park and waited in his car.

9. At about 4:30pm, Mr Massey walked into the car park and came over to the car of the undercover operative. They spoke briefly and then Mr Massey got into the front passenger seat. Their conversation was covertly recorded. Mr Massey told the undercover operative to drive the car around Gungahlin and then park in a street in Gungahlin. The undercover operative opened the bonnet of the car, pretending that the car had overheated, while Mr Massey got out of the car and ran through a park out of sight.

10. A short time later he returned to the vehicle and they drove out of the street.

11. As the undercover operative was driving, Mr Massey dropped a sports sock in his lap and they had a brief conversation relating to cash.

12. A short time later, the undercover operative parked the vehicle and opened the sports sock finding a clip seal bag containing white crystals inside it. As the undercover operative expected to see twice the amount of crystals he raised this with Mr Massey who tried to explain what had happened and then reached into the front of his shorts and handed the undercover operative another clear resealable bag with white crystals, the same as the first. The undercover operative then handed Mr Massey $3900 in cash in exchange for the two clip seal bags and Mr Massey left the car and ran away through the parkland.

13. The bags were later sealed in a security bag at Queanbeyan Police Station and exhibited after being photographed.

14. The contents of the bags were later analysed at the Division of Analytical Laboratories in New South Wales and shown to contain 7.02 grams of methylamphetamine with a purity of 80 per cent.

15. When Mr Massey was spoken to by police in September 2014, he was in custody. He had been on parole at the time of the offence and his parole was subsequently revoked for other reasons on 13 April 2016.

16. He has presently spent 132 days in custody in relation to this offence.

17. In addition to the statement of facts, I am provided with some covert surveillance material, which assists me in assessing the offence, as follows.

18. As noted above (at [1]-[2], [4]), trafficking in illicit drugs is a serious offence. This is shown by the maximum penalty provided for by the legislature, an important indicator of the relative seriousness of the offence. See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31].

19. While methylamphetamine has become a common drug, the courts have cautioned against attempting to grade the seriousness between drugs falling into some broad category of soft drugs (for example, cannabis), middle range drugs (amphetamines and their various forms) and high range drugs (heroin and cocaine). Indeed, the seriousness of the effects of amphetamines might suggest a re-assessment of such an approach.

20. As Wood CJ at CL, said in R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355 at 362; [16]:

In the absence of detailed expert evidence based on pharmacological and toxicological studies as to their addictive qualities, risks of overdose, the incidents of drug induced psychosis and other psycho-social effects, no such exercise could profitably or responsibly be undertaken by the court. Moreover, such an exercise would become extremely problematic given the constant introduction of new designer drugs and of their analogues.

21. Thus, the seriousness of a particular offence is to be determined first by the maximum penalty, which I have referred above (at [4]), and then by other matters. Thus, in Bui v The Queen [2015] ACTCA 5 at [41], the Court of Appeal held that the principles concerning the sentencing of drug traffickers included an assessment of:

• the role of the accused, an important consideration;

• the weight of the drug, not of chief importance but still relevant; and

• the motivation of the offence, being highly relevant.

22. The purity of the drug may assist in the assessment of the role or level of involvement of a drug trafficker in the operation, although of course, even a courier with no other hierarchical involvement in the trafficking organisation can be entrusted with very pure drugs.

23. In this case, it seems to me that Mr Massey was delivering the drugs and was not the original supplier. The conduct of Mr Massey and the intercepted surveillance conversations seem to me to make that clear.

24. Thus, while reprehensible in itself, Mr Massey's attempt to withhold half of the sale to the undercover operative is likely to be inconsistent with him being the original supplier. He had to go and get the drugs, which he did. He brought back two packages and initially tried to give the undercover operative only one of them, and hold the other back.

25. Secondly, Mr Massey made it clear that he was dealing on behalf of someone else. For example, he tells the undercover operative, in the conversation which was recorded:

Mr Massey: Look mate, all's - all's I'm doing for you is hooking you up with another bloke, right?

Undercover Operative: Mm.

Mr Massey: Mm. The thing is, like, I don't get nothing out of this, all'is I do is get a smoke out of it.

Undercover Operative: Yeah, yeah.

Mr Massey: So I don't (indistinct) money out of this.

Undercover Operative: But I wanna - I wanna deal with you though.

Mr Massey: Yeah, I know that. No, he's - that's what I'm saying.

Undercover Operative: Because I like you.

Mr Massey: No, no worries, mate. He doesn't want to deal with anybody else.

Undercover Operative: Yeah.

Mr Massey: He said that. But, look, mate, I'll tell him. Are you sure you don't want to deal with him, because he might ... better bro. Like, um, if you're prepared to buy (indistinct).

Undercover Operative: How about I go through you this time?

Mr Massey: Yeah, yeah.

Undercover Operative: And then we'll fucking see.

Mr Massey: We'll see, all right. All right.

26. The Crown submitted that I should simply ignore this material. I am not prepared to do so. It seems to me that, along with the other material, including the telephone intercept material, it shows that Mr Massey is a mid-level supplier but not for profit, though he does try to "rip off" the undercover operative, not so much for money, however, but for drugs to which he was addicted.

27. It also shows a degree of reluctance of Mr Massey in having an ongoing relationship as a supplier for the undercover operative, and an attempt to link him with his original supplier.

28. The amount of drugs supplied was significant also. As a very pure sample, it could be further diluted in order to distribute more widely.

29. I accept, however, from this material, that Mr Massey was a user/dealer, and that his motivation was not focused on financial gain or greed.

30. I had a number of Pre-Sentence Reports from earlier court proceedings and a Pre-Release Report, all involving Mr Massey. From these and the submissions of counsel, I can make the following findings.

31. Mr Massey was born in Sydney 40 years ago, the oldest of three brothers and two sisters. His childhood was marred by his parents' abuse of alcohol and drugs, and by his father's violence towards his mother. His parents separated when he was seven and his mother re-partnered soon after that. That relationship was also scarred by domestic violence. As a result, Mr Massey would run away to his father's home to live for six to 12 months.

32. When he was nine, Mr Massey moved to the ACT to live with his grandparents, who, he said, were a "good influence" on him. He said that they "taught [him] discipline and manners" and he has remained close to them.

33. He returned to his mother's care, however, when he was 13, as she and her then partner had moved to the ACT. Mr Massey describes this as a poor decision. He witnessed further domestic violence and, indeed, intervened in a physical conflict between his mother and his stepfather on one occasion. This left him and his stepfather injured and requiring hospitalisation.

34. As a result of these circumstances, Mr Massey left home and moved out to live with older acquaintances who also introduced him to criminal activity and to using drugs.

35. Mr Massey has had a number of relationships. His current relationship has now lasted for some time, and he says he is committed to his current partner and their child.

36. He has two children from previous relationships, a daughter aged 18, whom he has seen when he was at liberty, and a son aged 13, who is said to visit him weekly while he is in custody, though ACT Corrective Services records do not confirm that.

37. Mr Massey attended four public schools because of the peripatetic nature of his home life. He left school without completing Year 9. He was 14 years old. While he enjoyed the social and sporting aspects of school, he struggled academically, although subsequent study suggests that he can be a bright student. He also had discipline problems. He has, however, completed a number of Certificate Courses while in custody.

38. He has had employment. He started an apprenticeship as a butcher but does not appear to have completed it. He has been a labourer in the construction industry and engaged in nightclub security work. His longest period of employment was as a butcher for about 18 months. He has, however, usually been employed, indeed, engaging in three jobs at once in 2006, namely labouring, as a removalist and in nightclub security work.

39. He has also played sport, particularly rugby league, which he enjoys.

40. Mr Massey has a long history of alcohol and drug abuse, which included the consumption of alcohol and cannabis from around the age of 10 years, followed by the use of amphetamines and heroin, which inevitably led to his offending behaviour.

41. He recalls sneaking beers at home when he was aged 10, but by the age of 13 he began to binge drink regularly with friends. This pattern of alcohol consumption continued until he was 17, when he "gave up" after "hurting someone" while intoxicated. While binge drinking, he did suffer blackouts which affected his short-term memory.

42. Mr Massey first used cannabis also at the age of 10 years, "sneaking it off mum." Once again, it was not until age 13 that he reported smoking cannabis regularly, stating that he used approximately one gram a day. This pattern of consumption continued on and off, until the age of 23 years, when he claimed to stop using cannabis completely.

43. This was a very young age at which to start using drugs and alcohol, at a time when he could not realistically be making an informed consent to do so, and it was obviously part of the environment in which he was living that led him to this activity. This is relevant to his subsequent offending and the relationship between his drug using and offending. See R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 397-8; [273].

44. Mr Massey first used "speed" when he was 16 due to peer pressure. This is also a relatively young age. He reported that he used the substance in a social environment while he was out socialising, and snorted about once a week. He ceased using amphetamines around the age of 18, as he began having psychotic episodes. He says that he has not used amphetamines since that time.

45. He first started using heroin at 18 years old when he was in gaol. He smoked it rather than injecting it and added that he did not use it regularly. Upon his release from gaol at 23 years, his peers and family members were using heroin and, though he abstained for an initial period, he was back injecting it before very long.

46. He was using approximately three grams of heroin per day at the height of his use. He preferred smoking it; however, on occasion he would inject it. He continued to use heroin in gaol and, although he has received pharmacotherapy methadone treatment on numerous occasions throughout his life, he has not been able to manage his addiction.

47. Mr Massey first used methylamphetamine in 2007, using it to deal with personal problems he was facing at the time. He did not initially use the substance on a regular basis, but when life became unbearable it led him to injecting himself, and indeed, he used that as one of his attempts to commit suicide. That led to a long term psychotic episode that continued for months. Mr Massey did not consider a residential rehabilitation program necessary at that time for his methylamphetamine addiction, but appears to have continued to use it.

48. As noted, in 1999, Mr Massey undertook prescribed treatment with methadone, and was dosing with 40 milligrams when he was released to parole in December 2012, however, he did not continue dosing on his release. He decided, on 24 July 2014, just to "jump off," motivated by his belief that it was not helpful to him and that he was being judged by his continued use of it.

49. Mr Massey does not appear to have made any application for residential rehabilitation, though while in custody in 2013, he did apply to enter the Solaris Therapeutic Community Program. A referral was made and he was assessed. He was assessed ultimately as suitable, but was informed that he would not be able to undertake the program because of applicants ahead of him and problems with non-association.

50. He sought referral in June 2013 for counselling with staff from the Alcohol and Drug Service of ACT Health. He attended some sessions but was not consistent in his attendance at sessions with counselling.

51. His participation in programs has been sporadic, although he did undertake a comprehensive program in prison in 2008, but ceased participating in the program because of confidentiality issues.

52. On 19 April 2013, Mr Massey commenced the First Steps Program, but due to absences was finally removed from the group.

53. Mr Massey has had a history of mental health issues, dating back to his age at 17 years. He reflected that many of these issues, such as the psychotic episodes, have been brought on apparently by excessive drug use, especially using amphetamines and methylamphetamines.

54. His symptoms of depression have existed for his entire adult life; as a teenager he was diagnosed as having manic depression, now regarded as bipolar disorder, and schizophrenia.

55. He has been prescribed numerous types of medication which he did take for about six years, from age 23. He does perceive things differently when under the influence of illicit drugs, and can hear voices and have psychotic episodes.

56. He has attempted to commit suicide on a number of occasions, mostly not by planning but as a spur of the moment, when "things build up."

57. The effects of his periods of incarceration have had a deleterious effect on his mental health, and has "closed him off" from other people, conditioning him not to feel appropriate emotions.

58. He has no physical health issues at the present time.

59. Mr Massey has an extensive criminal history dating back to 1990. He stated that the majority of the offences were committed to obtain resources in order to procure illicit substances.

60. The serious nature of his offences has led to him being incarcerated for about 14 of the 16 years of the time that the Pre-Release Report was prepared, being most of his adult life, and he has continued to experience periods of incarceration. Some of these were for very serious offences, including armed robberies and a kidnapping offence. Mr Massey has however, been released to parole and the ACT Corrective Services said that:

Mr Massey appears genuinely motivated to remain crime free and live a pro-social life upon his release from prison in May 2006. He found employment and joined his local rugby league team. Furthermore, after committing new offences approximately two months after his release, instead of absconding as he had done in the past, he handed himself in to police.

61. In October 2006, Mr Massey was released on parole once more. ACT Corrective Services noted that he continued attending for his appointments with this Service and his employment obligations on a regular basis. He breached his parole, however, by returning a positive urinalysis, and his parole was subsequently revoked.

62. I was provided by the Crown with a useful number of decisions which were said to be comparable cases.

63. In Lawrence v The Queen, Mr Lawrence was convicted of two counts of trafficking in methylamphetamine. He was sentenced to five years imprisonment. He was involved in what was described as a "relatively well organised drug distribution exercise, involving both 'retail' and 'wholesale' drug dealings. He was not himself addicted to drugs, and was motivated solely by financial gain".

64. In Bui v The Queen, Mr Bui offered to supply a drug user with methylamphetamine. As a result, he supplied him with an ounce, which the user sold to his friends for $10 000, all of which money went to Mr Bui. Mr Bui was clearly involved in a relatively sophisticated operation and was the major organiser. He was 46 years old and was married, but his wife had died in 2005. He started using drugs as a result. He did not have an extensive criminal history. He obtained a significant financial profit from the operation. He was sentenced to four years and 10 months imprisonment.

65. In Nguyen v The Queen [2013] ACTCA 11, Mr Nguyen pleaded not guilty to two counts of trafficking in a controlled drug other than cannabis, namely methylamphetamine and MDMA. He was convicted and sentenced to a total period four and a half years imprisonment. He appealed against sentence. It was accepted that he was motivated by greed or financial profit, and the appeal was dismissed.

66. In R v Huat Phay [2015] ACTSC 238, Mr Phay pleaded guilty to two counts of trafficking in heroin. He was 46 years old and had come to Australia as a refugee aged 14 after spending two years in a refugee camp. He had a significant gambling addiction and was, at the time of sentencing, motivated to address that. He had a criminal record including a prior conviction for trafficking in heroin. He was sentenced to 14 months imprisonment, reduced from 18 months for his plea of guilty.

67. In R v Hoang [2015] ACTSC 195, Mr Hoang was convicted of trafficking in heroin and sentenced to two years and one month imprisonment. He was also the subject of an undercover operation and the heroin was purchased for $6500. Mr Hoang was 52 years of age. He came to Australia as a refugee. He was married but the marriage ended because of conflict from financial problems. Mr Hoang had a criminal record including a significant drug offence.

68. I have also regard to some sentences shown in the ACT Sentencing database.

69. In R v Licciardello [2011] ACTSC 96, Mr Licciardello was convicted on his pleas of guilty to four offences including trafficking in methylamphetamine. He was then found in possession of a total of 32.89 grams of methylamphetamine. He was 27 years old with a criminal history of mainly dishonesty offences, and two drug offences, at a relatively low level. He had accepted some support from the Canberra Men's Centre. He was sentenced to two years and six months for the trafficking offence, reduced from three years and six months for the plea of guilty. A non parole period of 18 months was set.

70. In R v Pye (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 August 2012), Ms Pye was convicted on her plea of guilty to the trafficking in methylamphetamines. She sold one point for $50 and two points for $100. The Court accepted that she was a street level dealer. There was a good deal of drug dealing paraphernalia found in her premises. She had a significant criminal history, including prior convictions for offences of supplying drugs. She commenced using heroin when she was 25 years old. She had an unhappy childhood subject to sexual abuse. She was assessed at a high risk of re-offending. She was sentenced to eighteen months imprisonment to be released after serving 10 months with a Good Behaviour Order for two years.

71. In R v Lowe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 December 2013), Mr Lowe was convicted on his plea of guilty to one count of trafficking methylamphetamine. He also sold to an undercover police officer 3.5 grams of methylamphetamine. Mr Lowe was 58 at the time and had spent his early life in an orphanage. He had been married and fathered four children but the marriage ended in 1992. The offence was regarded as an isolated incident. Mr Lowe had a long criminal history including dishonesty offences but no drug offences. He was sentenced to 12 months imprisonment which, after taking into account pre-sentence custody, was to be served by periodic detention.

72. While no sentence is a precedent (see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57]), these are helpful to assess the sentencing practice to which I am required by statute to have consideration.

73. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, as with all cases of drug dealing, general deterrence is an important factor. I consider, too, that some element of specific deterrence is important.

74. It is clear from his history that Mr Massey has made attempts from time to time to avoid offending when released into the community. That he has failed to do so means that some element of specific deterrence is required.

75. The Crown submitted that Mr Massey had no prospects of rehabilitation. Indeed, it is submitted that the inevitable term of imprisonment should not be subject to the setting of a non parole period. That is, of course, an available option under the legislation.

76. Mr Massey's past history certainly denies him leniency, but it is clear that he has made attempts in the past to avoid further criminal offending and these opportunities have been regarded by ACT Corrective Services as genuine. That he fails is not of itself to be regarded as to deny him further opportunities. He said he is committed to his current partner and their child.

77. It was said that he used these excuses before. I have no evidence of that. Indeed, if he did so, they were, at least in the recent past, apparently partially successful.

78. Thus, I am not satisfied beyond reasonable doubt that Mr Massey should be denied the opportunity, under a parole regime, of showing, if he can, that he can grow out of his criminality that has led him to spend much of his adult life in prison.

79. Given the strict parole regime, where time in the community, so called "street time", does not count toward service of his sentence unless he completes it without breach, there is pressure on him to show that he can address his criminality.

80. In the most recent Pre-Release Report, Mr Massey was said to have demonstrated some insight into the consequence of the numerous years he has spent in custody. He has indicated that it significantly compromises his capacity to create a lifestyle of some continuity, particularly in the areas of accommodation, supportive relationships, employment, and participation in meaningful activities.

81. His current relationship, hopefully, is the glimmer of the beginnings of some opportunity for him to move into a pro-social life in the community, when ultimately he leaves custody.

82. He is, however, required to be under supervision when in the community, it seems to me, because otherwise the likely transition will be fruitless. A parole order can help Mr Massey to develop skills required to successfully transition into the community though compliance demands a good routine, something that Mr Massey has been singularly unable to manage for many periods of time.

83. Corrective Services also said that Mr Massey has not demonstrated sufficient understanding of this at that time, and that was one of the reasons why he was not recommended for parole at that stage. He also failed to participate in urinalysis, which meant that he was not recommended by parole.

84. Thus, it is clear that, in assessing Mr Massey for parole, he will be carefully evaluated and efforts will be taken to ensure that he is suitable for release, before releasing him into the community; that is an important factor in ensuring that the community can be protected.

85. I am mindful that release of Mr Massey may be regarded as putting the community at risk. Of course, when Mr Massey is finally released, as he must be at some stage, even if a non parole period is not set, then he will be just as much a risk to the community, but without any supervision or effort to control his behaviour and manage the transition into the community, nor any motivation occasioned by the granting of parole and the risk associated with its revocation, to abstain from criminal behaviour, which will lead not only to re-serving the period of his sentence, but also any further sentence that is imposed.

86. I also note that this offence is quite stale. That is to say, it is now over three years and six months since the offence was committed. Indeed, Mr Massey was not approached until nearly 18 months after the offence had been committed. There were reasons for that, because he was detected as participating in this activity, in an operation that was apparently designed to expose more significant criminality. That not only puts this offence in a perspective, but it is also a factor that must be taken into account: a delay is a matter that may mitigate the sentencing. See R v Todd [1982] 2 NSWLR 517 at 519-20 and R v McMahon [2014] ACTSC 280 at [98]- [106].

87. On the other hand, although he denies it, Mr Massey was on conditional liberty at the time of his offending. I am satisfied from the materials supplied by the Sentence Administration Board that this is so.

88. I also have to have regard to the period during which Mr Massey has been in custody. This raises a question of totality of the sentencing, even though the sentences are for other offences committed at other times. This can properly be addressed by back-dating the sentence to render some part of it concurrent with the sentences that he has been serving.

89. I take into account Mr Massey's plea of guilty. The case against him was, however, overwhelming, and the plea was late. It does, however, provide some utilitarian value.

90. I take into account the matters to which I am required to have regard under s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.

91. I note that no assessment has been sought for Mr Massey's suitability for a community service condition to a Good Behaviour Order.

92. At the end of the day, I consider that no sentence other than a sentence of imprisonment is appropriate.

1. I convict you of trafficking in methylamphetamine on 9 January 2013.

2. I sentence you to two years and one month imprisonment to commence on 12 February 2016. Had you not pleaded guilty I would have sentenced you to 27 months imprisonment.

3. I set a non parole period of 13 months, to commence on 12 February 2016 and end on 11 March 2017.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.