8 November 2017, 13 December 2017, 15 December 2017

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - finding of guilt following a judge-alone trial - trafficking in a controlled drug other than cannabis - possessing a prohibited weapon

Bui v The Queen [2015] ACTCA 5

Clinch v The Queen (1994) 72 A Crim R 301

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Knight v Victoria [2017] HCA 29; 345 ALR 560

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

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Nchucki [2017] ACTSC 287

R v Olbrich [1999] HCA 54; 199 CLR 270

SCC 172 of 2016, SCC 174 of 2016

1. On various dates in March, April and August 2017, the offender faced trial on an indictment containing five counts.

2. The offender elected to be tried by a judge alone, pursuant to s 68B of the Supreme Court Act 1933 (ACT).

3. On 3 October 2017, I found the offender guilty on the four contested counts and noted the offender's plea of guilty in respect of the fifth count: R v Nchucki [2017] ACTSC 287 (Nchucki).

4. The offender is to be sentenced for the five offences. These offences are:

(a) Trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

(b) Trafficking in a controlled drug other than cannabis, namely 3,4-methylenedioxymethylamphetamine (MDMA), contrary to 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

(c) Trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

(d) Possessing a prohibited weapon, namely two tasers, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The offence carries a maximum penalty of a fine of $75,000 and/or 5 years imprisonment.

(e) Possessing a prohibited weapon, namely a flick knife, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The offence carries a maximum penalty of a fine of $75,000 and/or 5 years imprisonment.

5. I take note of the maximum penalties in accordance with Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30] - [31].

6. As the trial judge, I recorded the facts constituting the objective circumstances of the offending. I incorporate that judgment into my remarks on sentence.

7. The Crown reminded me that the total amount of cocaine seized was 137.96 grams. This is 22 times the trafficable quantity. The amount of MDMA seized was 19.23 grams, consisting of 86 tablets, which is nearly double the trafficable quantity. The police seized 57.28 grams of methylamphetamine, which is approximately 10 times the trafficable quantity. I note that these quantities were based on gross weights, as discussed in Nchucki at [7] - [9].

8. It will be necessary to make some additional findings of fact. I do so having regard to R v Olbrich [1999] HCA 54; 199 CLR 270 at [27].

9. I also proceed on the basis that the relevant principles to be applied in the sentencing exercise are those stated in the case of Bui v The Queen [2015] ACTCA 5 at [41].

10. I find that the offender consumed drugs and has done so for many years. I note, however, that his consumption of drugs was not such as to impede the efficient conduct of his business. The offender has run a successful business in the construction industry for approximately nine years. A number of references tendered on sentence confirm that the offender ran an organised and successful business. I am satisfied beyond reasonable doubt that the offender did not have to sell drugs to fund his own drug consumption. He had the financial resources to fund his habit. Counsel for the offender did not dispute this fact. Indeed, it was the basis of his defence to the charges.

11. I am satisfied beyond reasonable doubt that the offender's motivation in trafficking in controlled drugs was to derive a profit from their sale.

12. I do not know where the offender fits into the hierarchy. There is no evidence that he has employees or associates in the distribution of drugs. The approximate value of the drugs seized was not particularly high. As much as it can be determined from the evidence, it appears that the individual sales made were of modest value and to end users or similar persons. The purity of the drugs is equivocal but I will act on the basis that, on balance, it gives some confirmation of these matters. I conclude that the offender was above the typical street level dealer, who might maintain a small stock of drugs for his own use and derive a small profit from sales. Profit was the dominant motivation for the dealing in this case.

13. There was no evidence that either the tasers or the flick knife had ever been used by the offender in the course of his business. Although use is not an element of the offence, I take this fact into consideration on sentence.

14. The offender has some minor matters on his criminal record. I will disregard these matters for present purposes. Weight can be given to this as a mitigating factor.

15. A considerable amount of information about the offender was before the Court at the trial, owing to its relevance to the issue of whether the offender had the drugs in his possession for his own use. At the sentencing hearing, a report from the Court Alcohol and Drug Assessment Service (CADAS) was in evidence, as was a Pre-Sentence Report (PSR) from ACT Corrective Services.

16. The offender's background is sufficiently set out in these materials. The offender is currently 37 years of age. He is married and has two young children. He has run a successful business in the construction industry for approximately nine years. According to the references tendered on his behalf, he is well-regarded as a businessperson by his colleagues and employees. The offender commanded a workforce of 19 to 57 persons, which fluctuated according to the availability of work. The workforce included apprentices. According to the offender's evidence at trial, sums in the vicinity of $60,000 were drawn from the bank to meet payroll commitments.

17. The offender struggled at school from an early age. He left halfway through Year 10. He later sought and obtained an apprenticeship, in which he excelled, and which eventually led to him running his own business.

18. The offender has not expressed contrition or remorse concerning the sale of drugs. His counsel at the sentencing hearing said that this is because he "wants to appeal that particular finding". The offender has expressed regret for the fact that his conduct has had an adverse effect on his family.

19. The Crown tendered a PSR prepared by ACT Corrective Services. It contained a number of contentious observations and opinions. The author of the report was required for cross-examination. There was an issue between the parties because the Crown proposed that the Team Leader, who had "endorsed" the report, be called for cross-examination instead of the author. I heard evidence on a voir dire on this point. Thereafter, the parties reached an agreement. The offender formally admitted the following, pursuant to s 184 of the Evidence Act 2011 (ACT):

1. In or about March 2016 he joined a Club or Association described as the Nomads Motorcycle Club of the ACT (hereinafter referred to as "the Club").
2. At the time he joined the Club there were three other people who claimed to be members of the Club.
3. Shortly after joining the Club he agreed with one other member to be joint President of the Club and to be described as President of the Club.
4. Thereafter, and from time-to-time when attending Club gatherings and events, he wore a motorcycle jacket which, inter alia, the words "Nomads MC Canberra" appeared and the word "President" appeared (hereinafter referred to as "the Club's apparel").
5. Upon remand into custody of ACT Corrective Services on the 22nd day of June 2017 he was occupying the position of joint President of the Club.
6. In or about late July 2017 he relinquished and gave up absolutely his membership of the Club and, ipso facto, his role as joint President of the Club.

1. Since about late July 2017 he has not worn the Club apparel nor claimed to be a member of the Club in any capacity.

20. I record that the offender sought a direction under s 4(2) of the Evidence Act 2011 (ACT) that the law of evidence applies to the evidence to be given by Ms Akyol-Quinn. The application was not opposed by the Crown.

21. There were two primary areas of dispute. The first was this statement:

Service records indicate Mr Nchouki [sic] was referred to the ADAPT alcohol and other drugs program in custody however he was exited from the program for non-attendance.

22. The following statement was also in contention:

Inquiries conducted with relevant authorities have confirmed that Mr Nchouki [sic] is the President of the ACT chapter of the Nomads Outlaw Motor Cycle Gang.

23. The following statement of fact was relied upon by the author of the PSR:

Mr Nchouki [sic] is a 37-year-old man who despite having stability in the family and employment aspects of his life, is closely affiliated with an Outlaw Motor Cycle Gang. Service records indicate he has no prior criminal history and is not previously known to this Service.

Mr Nchouki [sic] has been assessed as being at medium risk of general reoffending. His areas of risk are primarily in relation to his companions, alcohol/other drug problem and attitude towards offending.

24. At the conclusion of the evidence and cross-examination of Ms Akyol-Quinn, I formed the view that the evidence of whether the offender "exited" the ADAPT program voluntarily, either in an exercise of defiance or in circumstances where he was eschewing help, was inconclusive. I have not taken it into account. The other issue was whether the witness had correctly exercised her professional judgment to override a statistical model yielding a "moderate" risk of reoffending and substituting that with a "medium" risk of reoffending. The witness had sound reasons for her conclusion. However, I have determined that, in the circumstances, this will not alter the sentence I impose.

25. There is medical evidence before the Court that includes a diagnosis or intimation that the offender suffers from Attention Deficit Hyperactivity Disorder. There is also a CADAS report and a PSR.

26. I have concluded, from this evidence, that the offender must address his issues and follow medical advice if he is to reach his potential and function on a day-to-day basis. The offender shows good insight into his problems. The challenges facing him are not insurmountable and can be overcome. He has already demonstrated a capacity to function at a high level, notwithstanding his drug consumption and, possibly, an undiagnosed and untreated disorder.

27. The offender possesses the information and resources he needs for rehabilitation. The choices he has made in the past have included accepting the risks associated with criminal behaviour. It remains to be seen whether he will make the same choices in the future. The offender's rehabilitation now depends upon the choices that he makes from this point onwards.

28. I have taken into account the evidence of Ms Akyol-Quinn as to the risk of reoffending. If the offender was to associate with a motorcycle gang, and if that would necessarily involve associating with persons engaged in criminal activities, there would certainly be a medium if not high risk of general reoffending. Whether the offender chooses to do so is a matter for him. The offender is not driven to act under compulsion by an uncontrolled addiction to drugs or by an untreatable mental disability. He has the necessary resources to help himself.

29. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, the High Court recognised the principle of totality. Their Honours Wilson, Deane, Dawson, Toohey and Gaudron JJ noted, at 62 - 63:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

"The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']: 'when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

See also Ruby, Sentencing, 3rd ed. (1986), pp. 38-41. Where the principles falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

30. The passage of time has not developed any firmer guidelines as to how this process should be undertaken. As Basten JA recently observed, in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [28]:

Where the law permits, as in this case, the imposition of an aggregate sentence, the somewhat arbitrary process of adjusting individual sentences or adjusting the degree of concurrency is avoided, at least in the absence of any need to specify those effects with arithmetical precision. Nevertheless, the substantial issue remains as to what is properly described as a fair, just, proportionate or appropriate sentence for the whole of the offending. That problem arises where the sentence has been selected for each individual offence and principles governing the degree of concurrency or accumulation have been applied, but the overall period is one which offends some instinctive sense of fairness and justice.

31. The issue of totality arises in this case. I have structured a sentence that reflects the criminality of the offending. I have taken note of the fact that the severity of a sentence is not simply the product of a linear relationship, as explained by Malcolm CJ in Clinch v The Queen (1994) 72 A Crim R 301, 306.

32. In fixing the non-parole period, I have taken into account the minimum time that justice requires to be served: Knight v Victoria [2017] HCA 29; 345 ALR 560 at [8].

33. The offender was granted bail after being charged for these offences. The offender's bail was continued throughout the trial. I am informed that, on 22 June 2017, the offender was arrested in respect of other, unrelated, matters. He was not granted bail. The parties have requested that any custodial sentence that I impose commence on 22 June 2017, notwithstanding that the offender has not spent time in custody in relation to these offences.

34. I will accede to this application on the basis that the other, unrelated, charges may not proceed or may result in an acquittal. It is assumed that the parties will bring this judgment to the attention of the sentencing judge, should the matter so proceed.

35. In respect of the offence of trafficking in a controlled drug other than cannabis, namely cocaine, the offender is convicted and sentenced to two years imprisonment, commencing on 22 June 2017 and ending on 21 June 2019.

36. In respect of the offence of trafficking in a controlled drug other than cannabis, namely MDMA, the offender is convicted and sentenced to six months imprisonment commencing on 22 June 2018 and ending on 21 December 2018.

37. In respect of the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, the offender is convicted and sentenced to 18 months imprisonment commencing on 22 December 2018 and ending on 21 June 2020.

38. In respect of the offence of possessing a prohibited weapon, namely two tasers, the offender is convicted and sentenced to four months imprisonment commencing on 22 December 2018 and ending on 21 April 2019.

39. In respect of the offence of possessing a prohibited weapon, namely a flick knife, the offender is convicted and sentenced to four months imprisonment, commencing on 22 December 2018 and ending on 21 April 2019.

40. The overall sentence is three years imprisonment commencing on 22 June 2017 and ending on 21 June 2020.

41. I direct that the offender is not to be released prior to 21 February 2019.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.