R v Pearce [2018] ACTSC 140

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - trafficking in a controlled drug other than cannabis, namely heroin - possessing a prohibited weapon - dealing with proceeds of crime - user/dealer - dealing to support own and partner's habits and to make a profit - significant criminal history - pleas of guilty - consideration of illicit drug use rehabilitation - general deterrence - specific deterrence - sentenced to a period of fulltime imprisonment

Prohibited Weapons Act 1996 (ACT), s 5, pt 1.4 sch 1 item 6

Bui v The Queen [2015] ACTCA 5

R v Johnston [2017] ACTSC 280

1. Adam Pearce has pleaded guilty to the following charges:

(1) trafficking in a controlled drug other than cannabis contrary to s 603(7) of the Criminal Code 2002 (ACT) (maximum penalty $140,000 or imprisonment for 10 years or both);

(2) nine charges of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (maximum penalty $70,000 or imprisonment for five years or both); and

(3) one transferred charge of dealing with the proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT) (maximum penalty $28,000 or imprisonment for two years or both).

2. For the purposes of the trafficking offence, the drug in question was heroin. A trafficable quantity of heroin is a quantity between 5g and 2.5kg: Criminal Code, s 601(1); Criminal Code Regulation 2005 (ACT), sch 1.

3. The facts relating to the offences were agreed and recorded in a Statement of Facts which was admitted into evidence without objection.

4. Police executed a search warrant on the offender's home in Palmerston on 7 November 2016. During that search police located:

(1) an electrical discharge device, designed to appear to be identical to a white and black iPhone 4 (CC2017/4321);

(2) a black hand-held electrical discharge device with silver electrical tape on the handle (CC2017/4322);

(3) an unknown brand, 18 centimetre long black electrical discharge device, with a model name 'FOX-910A', designed to appear identical to a flashlight (CC2017/4323); and

(4) an unknown brand '800 type', 11 centimetre long, five centimetre wide, black electrical discharge device (CC2017/4324).

5. Each of these items was a prohibited weapon as described by item 4, pt 1.4 of sch 1 of the Prohibited Weapons Act. That item in the schedule is in the following terms:

1. A hand-held or other electric device designed to administer an electric shock on contact, other than a piece of medical equipment or electric prod designed exclusively for use with animals

6. There is no evidence as to what magnitude of electrical shock any of these items would deliver or what the effect of the delivery of such a shock would be on a human.

7. During the search, police also found an LAH brand, Mini 4S crossbow which was a prohibited weapon as defined by item 3 of pt 1.3 of sch 1 of the Prohibited Weapons Act (CC2017/4325).

8. Police found, inside a box labelled 'Self-Defensive', a canister which contained capsaicin and dihydrocapsaicin and hence, the canister was a prohibited weapon within item 6, pt 1.4 of sch 1 of the Prohibited Weapons Act (CC2017/4326).

9. A further search of the offender's residence in Franklin on 5 September 2017, resulted in the location of:

(1) two gold coloured Class 3 Laser Pointers (CC2017/11174, 11175); and

(2) a small knife with a triangle blade in a sheath (CC2017/11176);

10. Police also discovered 279.272g of heroin, a quantity of money and a black Apple iPhone within a compartment in a television cabinet in the living room. The total amount of cash recovered during the execution of the search warrant was $67,835. This forms the basis of the charge of dealing with the proceeds of crime (CC2017/11130). There were significant indications of drug use and trafficking including clip seal bags, digital scales and a money counter.

11. On 9 October 2017, police executed another search warrant and found a polyvinyl chloride (PVC) pipe buried 20 centimetres under the ground, near the rear right hand corner of the rear yard of the offender's house. Within it was a white plastic bag containing bundles of cash. The total amount seized was $90,340. This amount related to the trafficking of heroin (CC2017/9905) as it was the proceeds of the sale of heroin.

12. So far as the trafficking offence is concerned, it is clear that the offender and his partner were significant heroin users. The amount of drugs in possession was significant but the level of purity was not identified. The accumulation of cash indicates that his activity went beyond what was necessary to support him and his partner's significant habits, but also generated a significant amount of profit. He appears to be a mid level dealer, dealing to support his and his own partner's habits as well as to make a profit: cf Bui v The Queen [2015] ACTCA 5 at [41]. It is, therefore, in the mid range of objective seriousness for the offence.

13. The proceeds of crime charge is, having regard to the amount in question, a mid range offence but closely associated with the trafficking charge.

14. In relation to the possession of prohibited weapons charges, it must be noted that s 5 of the _Prohibited Weapons Ac_t accommodates both possession and use of prohibited weapons. Possession is a less serious breach of the provision than use. The weapons covered by this provision also vary dramatically in their level of dangerousness. A crossbow is obviously a dangerous weapon. The knife is dangerous but no photographs were put into evidence so it is difficult to judge its degree of malevolence. The capsicum spray is an irritant. Laser pointers above the one milliwatt (mW) threshold present a danger to eyes. The electrical discharge devices may deliver electrical shocks but there is no evidence, in the present case, as to whether they were operational and, if so, what discharge they could deliver.

15. The personal circumstances of the offender are described in the presentence report, a Court Alcohol and Drug Assessment (CADAS) report, a letter from his father and a letter from the offender himself. The offender is 35 years old. He is the eldest of three children. His upbringing was unremarkable. His partner of 15 years has post-traumatic stress disorder (PTSD) and schizophrenia and also abuses illicit substances. The offender has no children but his partner has five adult children from a previous relationship.

16. His parents live in the United Kingdom. Following a period of noncommunication with his parents, they engaged a private investigator in an attempt to find him. Ultimately, his sister discovered that he had been incarcerated at the Alexander Maconochie Centre (AMC).

17. He completed Year 12 at school and has worked primarily in hospitality positions. He has not worked for the past five years and has been his partner's carer for a significant period. The pre-sentence report says for five years, the CADAS report says for 10 years and it is not possible to say which is correct. He was in receipt of a carer's pension.

18. He commenced using heroin at the age of 13. Most of his social network are drug users. Although he also used methamphetamine, heroin is his drug of choice and that of his partner. Prior to being detained on remand, he was using 3 to 4g of heroin per day and one to two points of crystal methamphetamine one to two times a week. He also smoked tobacco. He is currently prescribed methadone. He anticipates that he will need to stay on methadone for at least some time after he is released from custody. He is engaged with the Solaris Therapeutic Community Program within the AMC and is an active participant in that group. He is due to graduate from that program on 5 June 2018. As is apparent from the relapse prevention plan which was in evidence, his intentions are positive and he is motivated to address his drug use and avoid further incarceration due to it. He has made previous attempts at residential rehabilitation between 2003 and 2008, the last of which appears to have been successful, at least for a period of years. He suffers from hepatitis C.

19. He told the author of the pre-sentence report that he sold heroin to support his own and his partner's use of the substance. He said that he had the weapons in his possession for protection although, he also said that he was not aware that laser pointers and crossbows were prohibited items.

20. Whilst he was dealing, he rationalised his behaviour by telling himself that he would not sell to a new user and that if he did not sell to his customers, somebody else would.

21. The author of the presentence report indicates that he has commenced addressing his substance abuse issues. The author records that it would be beneficial for him to engage in treatment to address his antisocial values and attitudes as well as to encourage him to limit his contact with antisocial peers.

22. The offender appears motivated to address his drug use once released from custody. In a letter to the Court, he indicates that he is motivated to continue trying with rehabilitation and that his long-term goal is to maintain his methadone use and do programs directed to entering the workforce.

23. The offender's criminal history in the Australian Capital Territory commences in 2002. It is a significant one, reflecting his use of drugs and his involvement with drug-related crime. He has convictions for robbery, possessing prohibited substances, possessing firearms and trafficking in heroin. In 2011, he was convicted of trafficking in heroin as a result of a relatively small quantity of heroin being found in his car in 2009. He was sentenced to nine months imprisonment, three months of which was to be served by way of periodic detention and the balance suspended. He was also convicted in 2014 of possessing a prohibited substance other than cannabis and given a six month sentence, suspended after three months. It is clear that he has been given a degree of leniency in the past in relation to drug possession. It is also clear that the trafficking offence with which he is presently charged, is significantly more serious than the trafficking offence that he committed in the past.

24. Pleas of guilty to the offences charged as a result of the 7 November 2016 search were entered after two adjournments in the Magistrates Court and prior to committal to the Supreme Court. Pleas of guilty were entered to the trafficking charge, three prohibited weapons charges and the dealing in proceeds of crime charge when the proceedings were in the Magistrates Court prior to committal.

25. Having regard to the relatively early plea in the Magistrates Court, it is appropriate to apply a 25 per cent discount and I have taken this into account in determining the appropriate custodial penalty, as well as the fines that I will impose.

26. The offender was arrested on 5 September 2017 and has spent eight months and five days in custody prior to today.

27. As I have indicated, the trafficking charge is in the mid range of objective seriousness because the trafficking was more than simply subsistence level trafficking and resulted in the accumulation of substantial profit. I accept that the profit was not such as to lead the offender and his partner to have an extravagant lifestyle. The offender appears to be well motivated to rehabilitate himself to overcome his long-term heroin addiction. He has, in the past, attempted rehabilitation with some success for periods of time. However, his heroin use is very long-standing. He has been the subject of criminal penalties designed to deter him from drug use in the past and those criminal penalties have not been successful. Therefore, there is clearly a mixed picture in relation to which both specific and general deterrence play a part. It must be hoped that he takes advantage, as he appears to have done so far, of the drug rehabilitation programs available within the prison as well as every educational opportunity that is available to him, to make him more employable upon his release from prison.

28. The starting point is a period of imprisonment of two and half years, reduced to 22 months and 15 days on account of the plea of guilty.

29. Notwithstanding the submissions on behalf of the accused, I consider that service by way of an intensive corrections order would not be appropriate. I accept that it is an available option and may be an appropriate sentence for a person whose principal issue is drug use and who is motivated to rehabilitate himself. While it is possible to work around the limitations of the legislation so as to permit the making of an intensive corrections order, in circumstances where there are multiple offences or a significant period of presentence custody: see for example R v Johnston [2017] ACTSC 280 at [44]- [46], having regard to the length of the sentence and the capacity to impose a somewhat shorter than usual non-parole period, it is better in the present case to take account of the pre-sentence custody and allow supervision on parole rather than further adjourn the proceedings pending an intensive correction assessment with a view to making such an order.

30. In this case, the charge of dealing with proceeds of crime is made out because 'deal' is defined in s 114A of the Crimes Act to include possession. The possession of the $67,000, found at the search on 5 September 2017, is a product of the trafficking. Whilst a significant penalty is appropriate, it is also appropriate to make that penalty concurrent with the penalty imposed in relation to the trafficking. The starting point is a period of imprisonment of five months, reduced to three months and 21 days on account of the plea of guilty.

31. In relation to each of the prohibited weapons charges, they relate to possession rather than use, and in the case of the electrical discharge devices, there is no evidence to explain the level of dangerousness of the weapons. I will therefore, except in relation to the crossbow offence, impose modest financial penalties and, assuming these are to be discharged by custody rather than payment, allow no time to pay. Each penalty reflects the reduction in penalty of 25 per cent on account of the plea of guilty. The starting point in relation to the crossbow offence is imprisonment for one month, which I have reduced to 21 days on account of the plea of guilty.

32. I have allowed a somewhat shorter than usual non-parole period so as to permit a longer period of supervision on parole, because, it appears to me that the principal criminogenic factor is drug use and that, if that has been successfully addressed in prison or through residential rehabilitation on release, then there is a benefit in shortening the time to be served and lengthening the period on parole.

(1) On the trafficking charge (CC2017/9905), the offender is sentenced to 22 months and 15 days imprisonment commencing on 5 September 2017 and ending on 19 July 2019.

(2) On the charge of dealing in the proceeds of crime (CC2017/11130), the offender is sentenced to imprisonment for three months and 21 days starting on 5 September 2017 and ending on 25 December 2017.

(3) On each of the prohibited weapons charges relating to electrical discharges devices (CC2017/4321, CC2017/4322, CC2017/4323, CC2017/4324), the offender is fined $375 and allowed no time to pay.

(4) On the prohibited weapons charge relating to the crossbow (CC2017/4325), the offender is sentenced to 21 days imprisonment commencing on 20 July 2019 and ending on 9 August 2019.

(5) On the prohibited weapons charge relating to the capsicum spray (CC2017/4326), the offender is fined $750 and allowed no time to pay.

(6) On each of the prohibited weapons charges relating to the laser pointers (CC2017/11174, CC2017/11175), the offender is fined $750 and allowed no time to pay.

(7) On the prohibited weapons charge relating to the small knife with a triangular blade (CC2017/11176), the offender is fined $750 and allowed no time to pay.

(8) The non-parole period is 14 months and commences on 5 September 2017 and ends 4 November 2018.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.