R v Srna [2018] ACTSC 337

16 February 2018, 18 May 2018, 1 August 2018, 23 August 2018, 13 September 2018

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trafficking in a trafficable quantity of cannabis - additional offences - plea of guilty - subjective circumstances - objective seriousness - consideration - intensive correction order assessment - not bound by an assessment of unsuitability - reasons given - Crimes (Sentencing) Act 2005 (ACT) s 46D - sentence to be served by way of an intensive correction order

Crimes Act 1900 (ACT) s 114C

Crimes (Sentencing) Act 2005 (ACT) s 46D

Firearms Act 1996 (ACT) s 249(1)

Mr D Sahu Khan (16 February and 18 May); Ms A Jamieson-Williams (1 August, 23 August and 13 September) (Crown)

SCC 123 of 2017; SCC 124 of 2017

1. Mr Srna, you appear before me today for sentence with respect to one charge of trafficking in a trafficable quantity of cannabis. That offence occurred on 5 October 2016. It is an offence contrary to s 603(5) of the Criminal Code 2002 (ACT) and carries a maximum penalty of 10 years' imprisonment and/or a fine of $150,000. In sentencing you with respect to that offence, you ask that I take into account two offences contained on a list of additional offences. The first such offence is a charge of dealing with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT), which carries a maximum penalty of two years imprisonment and/or a fine of $30,000. The second such offence is one of unauthorised possession of ammunition which is an offence contrary to s 249(1) of the Firearms Act 1996 (ACT) and carries a maximum penalty of a fine of $1,500. All of these offences, including the offences on the list of additional offences occurred on 5 October 2016.

2. A comprehensive Statement of Facts has been tendered in the proceedings without objection. I will not read the Statement of Facts in its entirety. I do note however that the proceeds of crime charge relates to a sum of $29,230 in cash. The unauthorised possession of ammunition charge relates to 37 rounds of .22 calibre ammunition.

3. A very brief summation of the facts will be sufficient. On 5 October 2016, police were conducting a mobile patrol on Banfield Street in Downer. At that time, they stopped a blue Nissan motor vehicle, driven by you. You were the sole occupant of the vehicle. Police conducted a consensual search of the vehicle and located 938.1 grams of cannabis packed in six clip seal bags in the rear boot of the vehicle, concealed within the spare tyre compartment. Police also located that sum of $29,230 in cash and 37 rounds of .22 calibre ammunition. Police also observed messages on your mobile phone with content indicating that you were engaged in trafficking drugs.

4. You ultimately entered a plea of guilty with respect to this charge. You were charged with the subject offences in the Magistrates Court on 6 October 2016. On 3 November 2016, you entered a plea of not guilty to the charge of trafficking a trafficable quantity of cannabis. You were committed to this Court for trial on 22 May 2017. The other charges were committed as related offences on that date, although for technical reasons which it is not necessary to now go into, those offences later were included on a list of additional offences. On 14 August 2017, the matter was listed for trial to commence on 6 November 2017, with an estimate of three days. On 8 November 2017, you were arraigned and entered a plea of guilty to the offence of trafficking in a trafficable quantity of cannabis. It is therefore clear that the plea of guilty came at a very late stage.

5. At the time that you committed this offence, you effectively had no criminal history. There was one matter included on a criminal history from New South Wales of a very different nature and of a very minor nature and for present purposes, I will ignore that. Subsequently, in June 2017, you were convicted of an offence of driving with a prescribed drug in your oral fluid, with the drug on that occasion being methamphetamine. In July this year, you have also been convicted, after a plea of guilty in the Magistrates Court to a further offence of driving with a prescribed drug in your oral fluid and again, the particular drug was methylamphetamine. I will come to the question of your drug use in a moment but that material, whilst it does not form a prior criminal history, is indicative of the fact that you continue to use illicit drugs. I note that in some of the reports, there is a suggestion that you have ceased the use of illicit drugs but at least as of July this year, there is evidence that you continue to use methylamphetamine.

6. A Pre-Sentence Report was prepared for the sentencing hearing. You had an unsettled childhood but there does not appear to have been anything that could be described as abuse or neglect.

7. I do note that you have continued support from your family, and in particular, your mother, which is an important issue when it comes to determining your prospects for rehabilitation. You are currently married with two children, although the present matters have placed something of a strain upon your relationship with your wife. You have academic qualifications in construction management and property and you have a history of employment in that industry. Unfortunately you suffered a back injury in 2016, in the course of your employment and subsequently because of the pain you experienced as a consequence of that injury, you have been unable to work. Evidence of that fact has been put before me by way of medical reports and I accept that that is the case. The Pre-Sentence Report notes that you stated that you were in significant debt at the time of this offence.

8. That debt really formed two components. Firstly, there was a very significant mortgage over your residence but also secondly, and unfortunately, you experienced, or you were suffering from, a gambling problem. As a consequence you were in financial difficulty, albeit that you had income protection insurance which was providing you with a degree of income at that time. I do note that there was also some form of family trust, although it is unclear to what extent you may have been entitled to call upon the contents of that family trust.

9. The report notes that you commenced cannabis use when you were about 17 years of age and you reported ceasing the use of that substance around June 2017. Although, again, I do note that that may be doubted because at the time that you were apprehended with respect to the offence of driving with a prescribed drug in your oral fluid in July 2018, you told police that you had been using 'meth' and 'weed', by which I understood you to mean methylamphetamine and cannabis. Therefore, it appears there is some reason to believe that you had continued using cannabis past June 2017.

10. The report notes that you have a history of abuse of multiple other drugs and that you started using methamphetamine at about the age of 29. The report notes that you accepted responsibility for the present offences and you were assessed as being at low to medium risk of further offending. I take into account the contents of the CADAS Report which was put before me.

11. In terms of the objective seriousness of this offence, I note that the amount of cannabis involved was 938.1 grams which is significantly greater than the trafficable quantity. It was described by Mr Doig as being approximately three times the trafficable quantity. Taking into account all of the material, including the amount of the drug, the amount of money that was found in your possession, which I infer is the proceeds of the sale of cannabis and also the messages on your mobile phone, indicating that you were engaged in trafficking drugs, I am satisfied that as at 5 October 2016, you were engaged in an ongoing process of the sale or supply of cannabis to others.

12. I am not satisfied that all of the cannabis that was located in your car, on that occasion, was for that purpose. I accept that you were, at that time, in the habit of using cannabis in order to alleviate the back pain that you were suffering as a consequence of your work injury but I am also satisfied that a significant amount of that cannabis was for the purpose of sale or supply and that one of the motives for your engaging in that activity was to make a profit. In that regard, you were in significant debt at that time, albeit that you were in receipt of some income. That debt was partly caused by financial issues, as a result of your inability to work, albeit that that had been ameliorated to some extent by the insurance funds that you were receiving, but was also partly caused by your gambling habit. I would describe this offence as being somewhere between the lower and the middle range of offences of this nature.

13. It has been accepted by your counsel, and I think rightly so, that this offence calls for a term of imprisonment. The question is, how is that term of imprisonment to be served? It is of course trite to say that full-time imprisonment is not to be imposed unless no other lesser sentence will be adequate to address the requirements of sentencing in an individual case. I accept that an intensive corrections order involves a degree of leniency, in that a person sentenced to complete a sentence of imprisonment, by way of intensive corrections order, does not have to serve a term of full time imprisonment. Be that as it may, the legislature has clearly indicated that an intensive corrections order is considered to be a sentence that not only addresses rehabilitation but also is intended to have a deterrent effect upon offenders and is considered to be a significant punishment, coming second only to a term of full-time imprisonment.

14. An assessment for an intensive corrections order was obtained. You were assessed as being unsuitable for an intensive corrections order based upon information received from police regarding you and your nominated address. The report provides some further information in relation to that matter. On page 4 of the report, it states, and I quote, "Email correspondence with AFP identified there have been numerous uncorroborated/unconfirmed reports of drug activity, stolen property and potential access to firearms/weapons in relation to Mr Srna and his address."

15. The matter has been adjourned from time to time to enable the parties to put further information before me with regard to that matter. It is clear from the provisions of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act), that I am not bound by a determination or an assessment of unsuitability by the author of an intensive corrections order assessment. I do however, have to give reasons for imposing such an order, if an assessment has found an offender to be unsuitable for such an order. I was concerned that you had been found unsuitable for an intensive corrections order based upon what, on the face of it, was material which could not be corroborated. As such, as I have said, I gave the parties an opportunity to put material before me. To the extent that they have been able to do so, it is clear that the only material which is available to the Director of Public Prosecutions comes from the Australian Federal Police computer records. That simply says that a number of unconfirmed reports by apparently anonymous persons have been made with respect to what they consider to be suspicious activity at your premises from time to time. In my view, that material cannot be given any significant weight.

16. I note that in preparing an intensive correction assessment, the author of such a report has to bear in mind or consider those matters which are referred to as intensive correction assessment matters in s 46D of the Crimes (Sentencing) Act. I am uncertain which of the matters that is set out in table 46D is relevant to the matter which the author of the report took in to account in determining unsuitability. But I would assume that it is either item 5 which deals with employment and personal circumstances, or item 7 which deals with the living circumstances of the offender. Whichever item was the item which was intended to be referred to by the author of the assessment, I am satisfied that the evidence does not establish unsuitability, or at least not to the extent that I should not consider the making of such an order. I am satisfied that the requirements of sentencing, and particularly, punishment, deterrence and rehabilitation will be adequately addressed by the recording of a conviction, the imposition of a sentence of imprisonment and an order that the sentence be served by way of intensive corrections order.

17. I will record a conviction with respect to the charge of trafficking in a trafficable quantity of cannabis and bearing in mind the matters that are listed on the list of additional offences, you will be sentenced to 18 months' imprisonment, which I have reduced from 20 months in order to reflect your plea of guilty. That sentence will commence today, 13 September 2018 and will expire on the 12 March 2020.

18. I order that sentence to be served by way of an intensive correction order. That order will be subject to the core conditions, and there will also be further conditions:

(i) firstly, that you are to undertake appropriate interventions for alcohol and drug abuse, as directed by the Director General;

(ii) secondly, you are to continue in engagement with ACT Corrective Services intern psychologist, as directed by the Director General;

(iii) thirdly, you are to undertake appropriate counselling and support to prevent relapsing into gambling addiction, as directed by the Director General.

(iv) finally, you are to accept case management by the Director General to encourage you to adopt a pro-social lifestyle.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.