SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Lill
Citation: / [2016] ACTSC 252
Hearing Date: / 18 August 2016
Decision Date: / 18 August 2016
Before: / Murrell CJ
Decision: / Sentenced to 12 months’ imprisonment with a nonparole period of seven months. Parole conditions specified.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in heroin – possession of property reasonably suspected of being unlawfully obtained – low objective seriousness – extensive criminal history and substance abuse
Legislation Cited: / Crimes (Sentencing) Act 2005 (ACT) s 7
Criminal Code 2002 (ACT) ss 324, 607
Magistrates Court Act 1930 (ACT) s 90B
Parties: / The Queen (Crown)
Paul Eric Lill (Offender)
Representation: / Counsel
Mr M Reardon (Crown)
Ms A Chalmers (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Canberra Criminal Lawyers (Offender)
File Numbers: / SCC 116 of 2016; SCC 117 of 2016

MURRELL CJ:

1.  The offender is to be sentenced for the offence that on 22January 2016 he trafficked in a controlled substance other than cannabis, being heroin. This is an offence against s603(7) of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 10 years' imprisonment.

2.  He is also to be sentenced on a charge of possessing property reasonably suspected of being unlawfully obtained in the amount of $3,785. That matter was transferred to the Supreme Court pursuant to s90B of the Magistrates Court Act 1930 (ACT). The offence of possessing property reasonably suspected of being unlawfully obtained is an offence against s324(1) of the Criminal Code. The maximum penalty is six months' imprisonment.

3.  The trafficable quantity of heroin is five grams. The commercial quantity is 2.5kilograms. In this case, the quantity was 22 grams.

4.  The offender was arrested on 22 January 2016, and thereafter spent three days in custody before being granted bail. Initially, he entered pleas of not guilty. On 31 May 2016, he pleaded guilty and the matter was committed for sentence. The plea was not entered at the earliest opportunity, but it was a reasonably early plea. It was entered in the face of what was a very strong Crown case. Nevertheless, I will err on the side of generosity and afford him a 25% discount.

Facts

5.  On 22 January 2016, police executed a search warrant at the offender's Braddon flat. While they were doing so, the offender seized a plastic shopping bag, removed a ball of white powdered rock from the bag and attempted to flush the substance down the kitchen sink. He dropped it when police intervened. Most of it, a total of about 22grams, was retrieved by the police (although, as a result of being dropped, only about 15grams was suitable for analysis). The offender admitted to the police that the substance was heroin and it weighed about 23 grams. He agreed that he owned the heroin and the other property within the residence.

6.  During the search, police located a set of digital scales and a black bumbag containing $3,785 in various Australian notes. The offender admitted that he owned the money located in the bumbag and was dependent on Centrelink payments ($540 a fortnight) as a source of legitimate income.

7.  Analysis of the white substance confirmed that it was heroin. The Court does not know the purity of the substance.

Objective seriousness

8.  Although this offence is towards the lower end of objective seriousness, any offence of trafficking in heroin is serious.

9.  The overall circumstances establish that the offender was involved in dealing heroin at a low level. I am satisfied that there was some actual dealing because of the presence of the digital scales and the sum of $3,785, which was otherwise unexplained. However, I also accept that not all the heroin was for the purpose of sale. I accept that a significant part of it was for personal use. However, a substantial part of it was for sale. I accept that the offender was selling drugs for the purpose of funding his own habit, rather than for a direct financial profit.

Subjective factors

10.  The offender is 49 years old.

Criminal history

11.  The offender has an extensive criminal history which commenced in the 1980s. Notably, in 1996 he was sentenced for 40 counts of burglary (reduced from a much larger number) to a total of five years' imprisonment with a nonparole period of two years. It was recommended that he not be paroled unless he was prepared to undertake a residential rehabilitation program for 12 months.

12.  In 2000, he was convicted of possessing a trafficable quantity of heroin for supply and was released on entering a three-year and six-month good behaviour order. In 2004, he was sentenced to imprisonment for burglary and other offences of dishonesty.

13.  The most recent sentences were imposed in 2012; the Supreme Court of the ACT sentenced the offender for offences of burglary and theft committed in 2011. The sentence was a total of three years' imprisonment from 27July 2011 with a nonparole period of 18 months. The offender was released on 19 January 2013. There was a three-year gap until the next offences were committed, they being the offences before the Court.

Substance abuse

14.  The offender's criminal history is consistent with a long history of substance abuse. The dishonesty offences on his record are characteristic of offences committed by drug addicts.

15.  Through his legal representative, the offender informed the Court that he was drug free for two and a half years following his release in January 2013 and relapsed approximately six months prior to the commission of the offences before the Court. Iaccept the submission; no offences are recorded during that period.

16.  I accept that heroin is the primary drug to which the offender has been addicted. Through his legal representative, the offender informed the Court that he has taken steps to address his heroin addiction by commencing a methadone program and attending Narcotics Anonymous meetings. Iapproach that assertion with some scepticism as the offender was not forthright with the Court regarding another matter to which I will come in a moment. However, I accept that the offender may have attempted to reduce his heroin use since January of this year. I am not aware that he has been charged with any drug matter since then.

Failure to engage with reporting services

17.  The Court requested pre-sentence and CADAS reports. Regrettably, the offender failed to attend either reporting service. Consequently, the Court does not have the benefit of a report from either service.

18.  Today, the offender asked for an adjournment, promising the Court that he would attend so that reports could be prepared. I refused the adjournment. The offender has a long history of failing to comply with supervision in the community, as noted by the author of the short pre-sentence report that was furnished. The offender maintained that he had not received any of three letters sent by Corrective Services or any of the three letters sent by the Health Directorate requesting him to contact them so that they could prepare a report. He asserted that all six letters went astray. I do not accept that that could possibly be the case. It is possible that one or two letters were not delivered, but six letters I do not accept. The offender made no attempt to contact either service and seek an appointment.

19.  Because the offender has not been forthright about his failure to attend those services, I treat his assertion that he is actively addressing his heroin addiction with some scepticism although, as I have mentioned, I accept that there may have been some attempt in that regard. Because he failed to attend the reporting services, not much is known about his personal circumstances, except for what has been submitted from the bar table.

Other personal circumstances

20.  The offender has a 14-year-old son, with whom he maintains some contact. The boy lives with his maternal grandparents. The offender's former partner, the mother of his son, died eight years ago (she committed suicide). The offender enjoys the support of his brother, who is at Court today. He has provided good ongoing support to the offender.

21.  No doubt there are underlying causes that have resulted in the offender's longstanding problem with substance abuse. However, the Court has no information about these causes.

22.  The Court is informed that, two years ago, the offender was diagnosed as suffering from a congenital heart disease and that the existence of that disease has motivated him to cease drug abuse because he understands that drug abuse may aggravate the disease. I accept that submission, although I note that, despite the diagnosis two years ago, the offender relapsed about 12months ago and continued to abuse drugs until he was arrested on 22 January.

23.  Through his legal representative, the offender advised the Court that he has previously been diagnosed with depression and anxiety. That may well be the case. That condition may be related to the offender’s substance abuse.

Sentence

24.  The offender is to be sentenced having regard to the sentencing purposes in s7 of the Crimes (Sentencing) Act 2005 (ACT). In relation to the dissemination of drugs, general deterrence is almost always an important sentencing purpose and it is in this case. In this case, personal deterrence is also an important sentencing purpose.

25.  I also take into account the purpose of rehabilitation in the context that, despite his age and very extensive criminal history, the offender did manage to stay out of trouble while he was serving a recent 18-month parole period and, indeed, until mid-2015 when he relapsed into drug abuse. Further, the offender has committed no offences since he was charged with the matters before the Court. I do not discount entirely the possibility of rehabilitation, although there is no firm evidence before the Court that the offender has clearly committed himself to rehabilitation.

26.  In relation to the offence of being in possession of the sum of money, which was associated with drug sales and is a substantial sum, I would have sentenced the offender to two months' imprisonment, but I have discounted that sentence by 25% to six weeks' imprisonment. It will run from 15 August 2016 to 26September 2016.

27.  In relation to the offence of trafficking in heroin, I would have sentenced the offender to 15 months' imprisonment, but I have discounted the sentence by 25% to approximately 11 months' imprisonment. I will accumulate the sentences to a total of 12 months' imprisonment. The sentence for the offence of trafficking in heroin will run from 15September 2016 to 14 August 2017.

28.  In relation to the total sentence of 12months' imprisonment, I fix a nonparole period of seven months from 15 August 2016 to 14 March 2017. Parole will be subject to the additional condition that the offender reports to Corrective Services within two working days of release and submits to the supervision of Corrective Services for as long as they deem appropriate.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.
Associate:
Date: 05 September 2016

2