R v Phay [2008] ACTSC 96

Supreme Court of the ACT|2008-09-11|Before: Rares J

The accused appear before the Court on Thursday 30 July 2009 at 9.30 am for directions.
The accused appear before the Court on Thursday 10 September 2009 for sentencing.
Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the condition that the accused:
- (a) for 12 months undertake treatment order consisting of community based counselling with the Alcohol and Drug Program and any other treatment deemed necessary by the Treatment Assessment Panel;
- (b) accept the supervision of the Chief Executive of ACT Corrective Services or his delegate and obey all reasonable conditions;
- (c) attend any assessment, counselling or program as directed by the Chief Executive or his delegate;
- (d) undertake urinalysis drug screening as directed by the Chief Executive or his delegate;
- (e) undertake any program for rehabilitation as directed by the Chief Executive or his delegate.
Any previous bail orders be vacated.
Grant bail to the accused on the five conditions in Order 3, and on the additional condition that he refrain from using any illicit substance.
The accused report today, as soon as possible, to ACT Corrective Services.
Noting the consent of the accused, he submit himself for a period of 12 months for the treatment of community based counselling and any other treatment decided to be necessary by the Treatment Assessment Panel pursuant to s 123(3) of the Drugs of Dependence Act 1989 (ACT).

2. The quantity of the drug that was found, both at your home and that you supplied to the two persons you sold to, was also significant. The explanation that you gave, which the Crown accepts and I accept, is that you were selling this drug to support your habit, but that does not mean that what you did is acceptable or right or decent. People in our community have their lives ruined, like you were trying to ruin your own, by taking drugs, through them being supplied in this way. It is clear that you now have at least seen you need to change your life. This appears from what you have told me in the witness box, in the letter you wrote, from what your friend Mr Nguyen has written, and from what I have seen in the reports from the corrective services and drug and alcohol services.

3. Ordinarily what you have done and pleaded guilty to should attract a sentence of imprisonment, not just because what you have done is plainly and badly wrong, but because other people in the community who could be tempted to behave like you have, if they saw and heard that the courts let people off lightly, could equally take the view that they might as well try and support their habits in this way, and to get into drugs and to use them. That would undermine not only other people's lives, if I make no example of you, but those persons' lives as well. What you have done therefore would make me consider at the moment imposing a sentence of full time imprisonment for 12 months. The reports that I have seen, and the submissions I have heard have persuaded me, however, that I should give you a chance to demonstrate that you can turn the corner and that you, over a period, will try and make something better of your life.

4. You have taken that chance before when you came to this country and you took it well. You have one opportunity to do it again. I cannot promise you than in 12 months time I would sentence you to any less term, because what you have done seems to me to be a very serious dealing in a substantial quantity of about 1.868 grams of pure heroin, but mixed to be about 5.7 grams, in your possession at home. As well you sold some more to drug users, totalling in the order of one gram. So what you have heard today about other people getting substantial sentences makes me think that that may be an appropriate penalty. But it may well be that if you are able to make a commitment to undertake the various programs and treatments which the Corrective Services and Drug and Alcohol people will require you to undertake, you may be able to demonstrate with that, and other things that you do in your life and in the community, that the drastic course of sending you to prison for this crime is one that I should not undertake, even though as I have told you, that is my present inclination.

5. But I think you have understood what you did was wrong. And I can see that you have remorse for it, and you are trying to address this. I am satisfied that it is appropriate that I should let you address your conduct by deferring passing sentence on you for a period of 12 months. What I propose to do is to order that you be here at court for a directions hearing on 30 July 2009 at 9.30 a.m. which is a Thursday, and that you then appear for sentence on 10 September 2009.

6. Pursuant to s 27(2) of the Crimes (Sentencing) Act 2005 (ACT), I order that sentencing of you be deferred for 12 months until 10 September 2009, on condition that you:

(a) first undertake a 12 month treatment order, consisting of community based counselling or any other treatment deemed necessary by the treatment assessment panel of the diversion drug and alcohol program of ACT Health;

(b) accept the supervision of the Chief Executive of ACT Corrective Services, or any delegate, and obey all reasonable conditions;

(c) attend any assessment counselling or other program as directed by ACT Chief Executive, or his or her delegate, particularly with respect to the issues you have concerning illicit drug use;

(d) undertake urinalysis drug screening as directed by the Chief Executive or his delegate.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Solicitor for the Accused: Trevor Barker & Associates

(Sentencing) Act 2005

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