Crimes (Sentencing) Act 2005 (ACT), ss 7, 11(5), 78

Drugs of Dependence Act 1989 (ACT), ss 169(1), 171(1(a)

R v Pogson [2012] NSWCCA 225

1. Alexander Papadakis, who is aged 25 years, has pleaded guilty to the following charges:

(a) trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT), an offence which carries a maximum penalty of $150,000 or 10 years imprisonment or both;

(b) possessing a prohibited weapon, namely a set of knuckle dusters, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), an offence which carries a maximum penalty of $75,000 or five years imprisonment or both;

(c) dealing with the proceeds of crime, namely $72,300, contrary to s 114C of the Crimes Act 1900 (ACT), an offence which carries a maximum penalty of $30,000 or imprisonment for two years or both;

(d) possession of cannabis, contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT), an offence which carries a maximum penalty of $150; and

(e) possession of a drug of dependence, namely methylamphetamine, which is an offence against s 169(1) of the Drugs of Dependence Act and carries a maximum penalty of $7500 or imprisonment for two years or both.

2. On 19 May 2016, police executed a search warrant issued under the Drugs of Dependence Act on a unit in Chandler Street, Belconnen, where the offender lived with his then girlfriend.

3. During the search, which extended to a storage locker associated with the unit as well as the offender's car, police found four plastic bags containing a total of 152.854 grams of cocaine, a plastic bag containing 0.08 grams of cannabis, a plastic bag containing 0.657 grams of methylamphetamine, $72,470 in a suitcase, and a pair of knuckledusters. There were also other indicia of drug trafficking, namely electronic scales with cocaine residue on them, an electronic vacuum sealer, clip sealed bags, and multiple unused clip sealed bags with known drug related motifs on them.

4. The girlfriend of the offender denied any knowledge of the drugs or associated equipment. She identified the suitcase as belonging to the offender. The offender's fingerprints were on the clip sealed bags containing the $72,470 in cash. They were also present on the vacuum sealer. A DNA sample from the clip sealed bag containing the methylamphetamine matched the offender's profile.

5. The offender was first before the ACT Magistrates Court on 20 May 2016. He pleaded not guilty on 26 May 2016.

6. The offender was committed for trial on 6 March 2017 on the two indictable offences, trafficking in cocaine and possessing a prohibited weapon.

7. The offender was arraigned and entered pleas of guilty on 28 June 2017.

8. The pleas of guilty were not early but they have utilitarian value and demonstrate acceptance of the offending conduct, a positive indicator for his potential rehabilitation.

9. The offender spent eight days in custody prior to his release on bail attributable to these offences.

10. The offender has a criminal history which only includes two driving offences as a minor, one of which was dealt with by way of a non-conviction order and the other dealt with by way of a fine. I place no weight on these for the purposes of the present sentencing exercise.

11. The offender was born in Armidale, the younger of his parents' two children. He had a positive childhood and maintains positive relationships with his immediate family. His parents continue to support him notwithstanding his offending conduct. The relationship with his girlfriend at the time of his arrest has now ended after three years.

12. He left school during Year 10 but completed Year 10 through the Canberra Institute of Technology later that same year. He has completed a university degree, a Bachelor of Psychology. His employment has consisted of construction and courier positions. In the past he has used cannabis, cocaine, methylamphetamine, ecstasy, and abused prescription anti-anxiety medication. Cocaine was his drug of choice in the year prior to his arrest, using three grams daily. His use of the drug had increased since an overseas trip in 2014. He suffers from a hernia, which will require surgery, and has long struggled with insomnia. He was recently diagnosed with anxiety.

13. He commenced selling cocaine to cover the cost of his own use of the substance and support a lifestyle he was not otherwise able to afford.

14. He is assessed as being at a medium to low risk of general reoffending. He was originally assessed as suitable for a community service work condition. However as a consequence of a soccer accident, he broke his arm during the period of the adjournment for the purposes of the Intensive Corrections Order assessment and that assessment stated that he was no longer suitable for a community service work condition because of the broken arm. He had previously deferred having surgery to correct the hernia but was taking the opportunity of his disability and time off work to also have that condition corrected.

15. At the conclusion of the hearing on 15 August 2017, counsel for the Crown submitted that an assessment for suitability for an Intensive Corrections Order was not appropriate because, in this case, there was not a substantial issue in relation to rehabilitation and that general deterrence was the principal sentencing consideration. He therefore submitted that only a sentence involving a period of full-time imprisonment would be appropriate.

16. Notwithstanding that submission, I directed that an intensive corrections assessment under s 78 of the Crimes (Sentencing) Act 2005 (ACT) be prepared. I observed then and repeat that the legislative requirement that an Intensive Corrections Order assessment only be prepared after having considered the Pre-Sentence Report means that it will usually be the case that the ordering of an assessment is disruptive to the process of sentencing in that, having waited months for a sentencing date, the finalisation of any sentence is required then to be further delayed for several months while the assessment is prepared and a new hearing date becomes available. This process imposes additional costs upon the parties and requires an additional devotion of resources to the sentencing process by the court. It is an unfortunate but inevitable consequence of the present legislative regime.

17. The Report that was produced as a result of the assessment indicated that he was suitable for an Intensive Corrections Order. Following the receipt of the assessment, the position of the Crown altered somewhat in that it no longer opposed the making of an Intensive Corrections Order recognising that, having regard to the offender's prospects for rehabilitation, the making of such an order would represent a crossroads for the offender at which he may choose to lead a law-abiding life in a manner which was clearly in his and the community's best interests.

18. Evidence was given at the hearing by the offender, who gave evidence-in-chief and was cross-examined.

19. He gave evidence that he is presently employed with a courier company working 50 hours per week. He completed his university degree, a Bachelor of Psychology, in the period after his arrest.

20. At the time of his arrest, he was selling and using cocaine. He was using three grams per day or more. He sold cocaine to support his habit as well as to support his lifestyle insofar as it involved going out, drinking and "partying". He sold to his network of friends, who were also users of cocaine, rather than to the drug using public at large.

21. Of the money that was found in his apartment, the offender stated that this was money that was collected from selling but all but $6000 or $7000 was owed to someone else, who I infer to be a drug supplier.

22. He explained that he was not prepared to give further assistance to authorities because for fears for his own safety if he did so.

23. He described the eight days that he spent in custody after his arrest and prior to the grant of bail as being a period during which he was very anxious.

24. The offender described the conditions which he was subject to whilst on bail, including the curfew and reporting conditions, which were gradually reduced over time. I note there was no evidence of any breach of these conditions.

25. He denied using drugs since his arrest, spending time working full-time, concentrating upon fitness activities, and trying to mend relations with his family. He said he had changed his circle of friends.

26. He described his relationship with his girlfriend as having broken down for a variety of reasons, including the uncertainty associated with the charges he was facing.

27. In cross-examination he described that the days in custody meant that he ceased using cocaine, and that although he did not find that process easy, he was forced to do it in the custodial environment.

28. The offender's former girlfriend gave evidence. She described that since being released from custody, the offender had made efforts to get back on his feet and has ceased associating with the persons with whom he had previously associated. She also confirmed the breakdown of their relationship.

29. The offender's mother, who had been a public servant for 24 years but was now retired, gave evidence that the offender had returned to live at home after some six years of living out of the family home and that he had complied with the rules imposed upon him upon his return. She described his arrest as being a complete shock and that she was devastated by discovering the conduct which he had engaged in. She said that she had noticed a significant change in the offender since his arrest. She said that he obtained employment as a labourer on his own initiative and carried out various jobs on construction sites. Subsequently, as a result of suffering from a hernia, he obtained his current employment.

30. She described that anxiety was a condition which ran in her side of the family and that there had been difficulties getting to see psychologists to assist the offender, but that he was likely to continue with that counselling.

31. Several references were also tendered. They attest to his good character, apart from the offences for which he is now being sentenced, his value as an employee at the courier company where he is currently employed, and the fact that he is now undertaking psychological treatment to assist with anxiety and depression. I was also told that he will shortly be receiving further assistance from a psychiatrist.

32. The principal charge is that of trafficking in cocaine. The legislature clearly considers that this is a serious offence having regard to the maximum penalty of 10 years imprisonment. So far as the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act are concerned, the most significant considerations are general and specific deterrence and rehabilitation. General deterrence is essential because of the prevalence of this kind of offending conduct and the need to indicate that persons involved in such conduct will be the subject of significant penalties.

33. So far as the offender is concerned, specific deterrence and rehabilitation are significant. The difference between deterrence and rehabilitation in relation to an individual is usefully explained in R v Pogson [2012] NSWCCA 225 at [121]- [122]:

1. ... Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society.
2. By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker [(1989) [1989] SASC 1591; 51 SASR 277] at 279 (King CJ).

34. Both factors are relevant in the present case. Having regard to the age, lack of criminal history, and the personal circumstances and background of the offender, while specific deterrence in relation to future conduct is a necessary component of any sentence, the rehabilitation of the offender in the sense described above is more important. There appear to be good prospects that the offender will be able to establish himself as a

law-abiding citizen notwithstanding the offending conduct disclosed in the present case.

35. Trafficking in cocaine contrary to s 603(7) of the Criminal Code: A trafficable quantity of cocaine is six grams. A commercial quantity is three kilograms. The offender was a user/dealer. He was engaged in the activity for profit to fund his habit and his lifestyle. The quantity is well above the minimum level for a traffickable quantity but well below the upper limit for this offence. Overall I would assess the offending conduct as being in the low end of the mid-range of objective seriousness for this offence.

36. I consider that no penalty other than a custodial one will be appropriate in the circumstances. An appropriate sentence of imprisonment is 18 months reduced from 21 months on account of the plea of guilty.

37. Possessing a prohibited weapon, namely a set of knuckledusters contrary to s 5 of the Prohibited Weapons Act: Having regard to the range of prohibited weapons that exist under the Act, which include a bomb, grenade, flamethrowers and crossbows, the possession of knuckle dusters is of relatively low objective seriousness. Further, s 5 covers both possession and use of such items and possession is usually less objectively serious than use. For these reasons, this offence falls at the low end of objective seriousness. I am not satisfied that only a sentence of imprisonment would be appropriate. Rather, having regard to the offender's criminal history and the other sentences that I will impose today, I consider that this offence may be dealt with by way of a conviction, a fine of $1000 and a Good Behaviour Order. I will allow two months to pay.

38. Dealing with the proceeds of crime namely $72,300 contrary to s 114C of the Crimes Act: This offence is closely related to the trafficking offence. The evidence of the offender, which was not contradicted, was that all but less than $10,000 was money that was owed to a supplier of drugs but was being held by him. The maximum penalty is two years imprisonment or a fine of $30,000. Given that the offence is not limited by any particular value of the proceeds of crime and there are not any other aggravating features of the offence, I consider this conduct as being at the low range of offending conduct. However, because of the need for general deterrence, I consider that only a sentence of imprisonment would be appropriate and I impose a sentence of two months' imprisonment; this is reduced from three months on account of the plea of guilty and taking into account the eight days previously spent in custody on remand. One month will be cumulative upon the sentence for trafficking.

39. Possession of cannabis contrary to s 171(1)(a) of the Drugs of Dependence Act: In this case the quantity of cannabis is nominal, even when compared with the 50 gram limit subject of this offence. The offence is at the low end of the range for the offence. I impose a fine of $20 and allow two months to pay.

40. Possession of a drug of dependence, namely methylamphetamine, which is an offence against s 169(1) of the Drugs of Dependence Act: This offence is not limited by quantity. However a trafficable quantity for the purposes of s 603 of the Criminal Code would be six grams. The possession of 0.657 grams is at the low end of the range for an offence likely to be charged under s 169(1). There are no other aggravating circumstances. Once again, because of the need for specific deterrence, I consider that the only appropriate sentence is one of imprisonment. I impose a penalty of one month imprisonment which will be cumulative upon the other sentences imposed. I have taken into account the plea of guilty in reaching this conclusion.

41. The total effective sentence is 20 months imprisonment.

42. The next question is how the sentences of imprisonment should be served. The options are:

(a) by way of full-time detention with the possibility of release on parole;

(b) by way of an Intensive Corrections Order; or

(c) by way of a suspended or partially suspended sentence combined with a Good Behaviour Order.

43. Notwithstanding that trafficking in cocaine is a serious offence, there can be no fixed rule that it must be punished by a period of full-time detention. In the present case, it is clear that the offender has good prospects of rehabilitation in the sense referred to R v Pogson quoted above (at [33]). It is likely that with a substantial period of supervision, he will be set on a path which will avoid offending conduct in the future. This could be achieved by a partially suspended sentence or an Intensive Corrections Order. I consider that the

long-term rehabilitation of the offender will be best achieved by the service of the custodial sentences by way of an Intensive Corrections Order, and the need for deterrence and punishment will be appropriately satisfied if that order includes a significant requirement for the performance of community service. My reason for including a period of community service, notwithstanding his assessment as being unsuitable, is that his unsuitability only arises from temporary conditions and that the existence of those temporary conditions can be accommodated by permitting him slightly longer than would otherwise have been permitted to complete those hours of community service.

44. I will impose a condition within the Intensive Corrections Order regarding contacting, harassing, threatening or intimidating Matthew Byrne, a prior associate of the accused. The reason for this is condition is because such a condition is suggested in both the

Pre-Sentence Report and the Intensive Corrections Order Assessment Report. It is one that is sought by the Crown and no submissions were made against the imposition of making the order by the offender.

1. On the charge of trafficking in cocaine, contrary to s 603(7) of the Criminal Code, the offender is convicted and sentenced to 18 months imprisonment to be served by way of an Intensive Corrections Order, to commence on 2 November 2017 and end on 1 May 2019, with the following additional conditions imposed under s 11(5) of the Crimes (Sentencing) Act:

(a) a community service condition requiring him to perform 249 hours of community service within 15 months;

(b) that the offender undertake medical treatment and supervision as directed by the Director-General;

(c) that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer;

(d) that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General;

(e) that the offender not contact, harass, threaten or intimidate or cause someone else to contact, harass, threaten or intimidate Matthew Byrne; and

(f) that the offender report to ACT Corrective Services, Level 1, 249 London Circuit Canberra City by 4:00pm Monday 6 November 2017.

2. On the charge of possessing a prohibited weapon, the offender is convicted and fined $1000 for which he is allowed two months to pay and required to enter into an undertaking to comply with his Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 for a period of 20 months.

3. On the charge of dealing with the proceeds of crime, the offender is sentenced to imprisonment for two months, one month of which is cumulative upon the sentence for trafficking in cocaine, which is to be served by way of an Intensive Corrections Order on conditions (b)-(f) imposed in relation to the trafficking charge, to commence on 2 April 2019 and end on 1 June 2019.

4. On the charge of possession of cannabis, the offender is convicted and fined $20. He is allowed two months to pay.

5. On the charge of possessing a drug of dependence, the offender is convicted and sentenced to one month imprisonment cumulative upon the other sentences of imprisonment which is to be served by way of an Intensive Corrections Order on the conditions (b)-(f) as imposed on the trafficking charge, to commence on 2 June 2019 and end on 1 July 2019.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.