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[2021] ACTSC 175
Supreme Court of the ACT
2021-08-03
Burns J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v Mort (a pseudonym)
Citation: [2021] ACTSC 175
Hearing Date: 20 July 2021
Decision Date: 3 August 2021
Before: Burns J
Decision: See [26]–[31]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis namely methylamphetamine – trafficking in controlled drug other than cannabis namely MDA – unlawful possession of stolen property – unlawful possession of drug of dependence – pleas of guilty – assistance to authorities – general deterrence important sentencing consideration for offences of drug trafficking – prospects for rehabilitation guarded – consideration of lack of motivation in seriously addressing drug addiction
Legislation Cited: Criminal Code 2002 (ACT) ss 324(1), 603(7) Drugs of Dependence Act 1989 (ACT) s 169
Parties: The Queen (Crown) Jaxon Mort (Offender)
Representation: Counsel K Marson (Crown) T Taylor (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Numbers: SCC 111 of 2021; SCC 112 of 2021
BURNS J:
(a) a charge of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) which carries a maximum penalty of 10 years’ imprisonment, a fine of $160,000 or both (CAN 3476/2020); (b) a charge of trafficking in a controlled drug other than cannabis, namely 3, 4 Methylenedioxymethamphetamine (MDA) which is contrary to the same provision and subject to the same maximum penalty;
(c) a charge of possession of property that is reasonably suspected of being stolen or otherwise unlawfully obtained contrary to s 324(1) of the Criminal Code which carries a maximum penalty of two years’ imprisonment, a fine of $32,000 or both; and
(d) a charge of possession of a drug of dependence, namely methylamphetamine contrary to s 169 of the Drugs of Dependence Act 1989 (ACT), which carries a maximum penalty of two years’ imprisonment, a fine of $8,000, or both.
The facts
On the afternoon of 31 January 2021, you checked into the Hyatt Hotel in Canberra, paying $1,149 in cash for one night’s accommodation. You were observed to have a large wad of cash. You were also in possession of a black computer bag. The next morning you and your co-offender, Kaelyn Annabelle (a pseudonym), and two young children left the Hotel. You handed the black laptop computer bag to a young male of approximately 5 years of age who was with you.
A short time later a member of the public approached the bell boy at the Hotel and handed him the black laptop computer bag. The bag was handed to the front desk staff as lost property. Staff checked the contents of the bag in an attempt to identify the owner and observed a sum of cash, a quantity of what appeared to be drugs, and a wallet. Staff checked the wallet and found an ACT proof of age card in your name. Hotel staff reported the matter to the police.
A short time later you approached the check in counter of the Hotel and reported the black laptop computer as lost and enquired if the bag had been handed in and if CCTV footage was available. You told staff that the bag contained $20,000 cash. Police attended the location and spoke with Hotel staff. As a result, police seized the black laptop bag and its contents. Police searched the bag and located two toiletry style bags. In one of the toiletry bags police found:
• a bag containing small clip seal bags;
• a clip seal bag of green vegetable matter;
• a plastic bag containing a large amount of white crystalline substance;
• a medium clip seal bag containing a white crystalline substance;
• three small clip seal bags containing a white crystalline substance;
• $7,000 in cash in $50 notes; and
• $9.85 in coins.
• a plastic container without a lid;
• a digital calculator scale; • a black smartwatch;
• a black case containing a glass smoking implement;
• a large clip seal bag containing brown pills; and
• a small clip seal bag containing a white crystalline substance.
Also in the laptop bag police found $2,000 in cash in $50 notes, a plastic freezer bag containing a white substance and gold chain, and a black wallet containing an ACT proof of identity card in your name and $515 in cash.
The total cash found in the bag was $9,515. The clip seal bag containing 380 brown pills weighed 108.148g. The contents were analysed and found to be MDA. An analysis of the white crystalline substance revealed a total weight of 185.31g which was found to be methylamphetamine. These facts are the basis of the charges of trafficking in a controlled drug other than cannabis.
Hotel staff directed police towards the room in the Hotel where you were staying. When they arrived, they found that you had already left. Later that day police executed a search warrant at your home address and located a battery powered hammer drill with a Bunnings Warehouse price tag affixed. This is the basis of the charge of unlawful possession of property. Police also located a quantity of methylamphetamine in the main bedroom of the premises. This is the basis of the charge of possession of a drug of dependence.
On 17 March 2020, police again attended at your home and you made certain admissions in relation to these offences, but you also sought to suggest that the drugs located by police were for your own personal use. You showed police bank statements which revealed three cash transfer payments which were made into your bank account between September and December 2019. The transfers did not appear to have originated from a legitimate business or merchant and as such the source of the money remains unknown.
I am left in no doubt that you were actively involved in trafficking the MDA and the methylamphetamine to end users. I am satisfied beyond reasonable doubt that you were slightly above a street level dealer in that you were not trafficking in drugs simply to support your own habit, but you also intended to make some profit. In assessing the objective seriousness of the offences of trafficking in a controlled drug I take into account the weight of each of the drugs as relevant to an estimation of the likely harm which would arise from the distribution of the drug.
When analysed, the purity of the various quantities of methylamphetamine which you possessed was found to vary between about 59 per cent and about 78 per cent I have not been provided with information as to the purity of the MDA. The trafficable quantity of methylamphetamine is 6g and that of MDA is 10g. A statement provided by a member of the Australian Federal Police provided information that the street value of the methylamphetamine, depending on how it was sold, was between $32,927 and $192,075. The street value of the MDA was estimated at between $7,600 and $15,200.
I would assess the objective seriousness of the offence of trafficking in methylamphetamine as in the lower part of the mid-range and that of trafficking in MDA as in the upper part of the low range of such offences. Subjective features
You have a significant criminal history commencing in 2003. Many of your previous convictions are for traffic related offences, but in 2017 you were convicted and sentenced to 1 year and 11 months’ imprisonment, suspended after serving 12 months’ imprisonment, for an offence of trafficking in a controlled drug other than cannabis. The drug on that occasion was methylamphetamine. Your criminal history does not permit any significant leniency to be shown to you in sentencing for the present offences.
You are currently 35 years old, and you have had numerous previous engagements with ACT Corrective Services. You appear to have breached most of the community-based orders to which you have been subject. You have completed several periods in custody, during which you have largely been compliant. Your childhood was marred by exposure to violence and alcoholism. You told the author of a Pre-Sentence Report that you continue to have supportive relationships with your siblings. You have been in a relationship with your co-offender from 18 years of age and together you have six children. All your children are currently being cared for by someone other than you and your partner. They are subject to Care and Protection Orders until they attain the age of 18 years. You reported wanting to work towards having your children returned to the care of yourself and your partner.
You completed your education to Year 12 level, although you were expelled from one school in Year 10 for behavioural issues. You then worked for a period in hospitality, followed by a period of employment with your father as a trade assistant. Your most recent period of employment was in 2018 – 2019 as a stonemason. You have subsequently been reliant upon your mother for financial support. You told the author of the Report that you completed odd jobs for cash.
You started problematic use of alcohol at age 14, the same age at which you commenced cannabis use. You commenced the use of methamphetamine from age 18. You reported having completed a period of residential rehabilitation in 2016, but then relapsed into drug use. You told officers of Corrective Services in August 2020 that you had engaged in an assessment to enter rehabilitation, and you have continued to express a willingness to engage in drug rehabilitation.
You reported a history of Post-Traumatic Stress Disorder and anger management issues. You said that more recently you have been diagnosed with anxiety and depression and that you are on medication to treat these conditions. A letter from ACT Health dated 22 June 2021 stated that you were assessed by Custodial Mental Health Staff on induction to custody on 20 June 2021, which did not identify any major mental illness.
The Pre-Sentence Report states that you accepted the Statement of Facts and attributed your offending to antisocial influences, drug use and poor decision-making. You were assessed as medium – high risk of general re-offending. The Report notes that whilst you have expressed motivation to engage in rehabilitation, that motivation is yet to be tested. In that regard, I note that a letter from the Court Alcohol and Drug Assessment Service dated 14 July 2021 reveals that you failed to attend that service for assessment as directed. In addition, when you were sentenced by Robinson AJ in 2017 for the offence of trafficking in methylamphetamine you gave evidence that you were committed to rehabilitation and that there was no prospect of you re-offending. I can have little confidence in your present stated desire to engage in drug rehabilitation. You were undoubtedly aware at the time of the present offences of the resources available to assist in drug rehabilitation, but you chose to engage in serious criminal offending rather than engage with those resources.
I accept that your pleas of guilty were early pleas of guilty which had significant utilitarian value. I propose to reduce by 25 per cent the otherwise appropriate sentences because of your pleas of guilty. Evidence has been placed before me that you have provided significant assistance to the authorities, the nature of which I will not now set out. The combined reduction in sentence for both your pleas of guilty and the assistance which you have provided to police will be 50 per cent of the otherwise appropriate sentences. I accept that a prison sentence may be more onerous for you because of the conditions under which you may have to serve that sentence if it becomes known in the Alexander Maconochie Centre that you have provided assistance to the authorities.
I accept that your moral culpability for these offences is diminished by your exposure in your early life to violence and alcohol abuse within your family. I accept that early exposure to family violence and to substance abuse makes it more likely that a child will go on to engage in drug and alcohol abuse.
Your prospects for rehabilitation must remain guarded. The assistance which you have provided to the authorities speaks positively of those prospects, but your apparent lack of motivation in seriously addressing drug addiction is a significant negative factor.
You spent 134 days in custody, bail refused, from 17 March 2020 to 28 July 2020. You appeared before me on 23 July 2021 on an alleged breach of bail and at that time I remanded you in custody until today, making a further 11 days in pre-sentence custody. The total period which you have spent in pre-sentence custody is therefore 145 days.
General deterrence is a very important sentencing consideration for offences of drug trafficking. I must pass sentences which demonstrate to others tempted to engage in trafficking drugs, that very real penalties will follow when they are caught. In this case, it is also necessary that any sentences I impose are such as to deter you from continuing to engage in drug trafficking. I do not neglect the question of rehabilitation, but that is a process which you may commence in custody if you choose to do so.
Having considered all available sentencing options, I am satisfied that nothing less than immediate terms of imprisonment are appropriate for the offences of trafficking in controlled drugs.
Sentence
I record a conviction for the offence of trafficking in methylamphetamine (CC2020/3476) and, taking into account the discounts to which I have referred, you will be sentenced to 14 months’ imprisonment commencing 11 March 2021 and expiring 10 May 2022.
I record a conviction for the offence of trafficking in MDA (CC2021/107) and, taking into account the discounts to which I have referred, you will be sentenced to 11 months’ imprisonment commencing 11 November 2021 and expiring 10 October 2022.
I record a conviction for the offence of unlawful possession of property (CC2020/3480) and, taking into account the discounts to which I have referred, you are sentenced to two months’ imprisonment commencing 11 March 2021 and expiring 10 May 2021.
I record a conviction for the offence of possession of a drug of dependence (CC2020/5419) and, taking into account the discounts to which I have referred, you are sentenced to one month’s imprisonment commencing 11 March 2021 and expiring 10 April 2021.
The aggregate sentence which I have imposed is therefore one of one year seven months’ imprisonment commencing 11 March 2021 and expiring 10 October 2022.
I set a non-parole period of 11 months’ commencing 11 March 2021 and expiring 10 February 2022.
I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.
Associate:
Date:
R
Mort