STATE OF TASMANIA v DAMIEN WESLEY MARSHALL 28 OCTOBER 2009
COMMENTS ON PASSING SENTENCE BLOW J
Mr Marshall has pleaded guilty to two charges of trafficking in methylamphetamine, and to various less serious drug charges. Police officers searched his home on two occasions — first on 29 May 2009, and again some six weeks later, on 13 July 2009. During the first search, police officers found 43 grams of methylamphetamine, worth over $20,000. At the beginning of the second search, Mr Marshall handed over another 27.6 grams of the drug, and a further 3.2 grams of it were found in the house by police officers. Mr Marshall admitted that he had been selling the drug for three months, at the rate of 2 ounces per month. He was selling it in units of one eighth of an ounce, known as an 8-ball, at $600 per 8-ball. He pleaded guilty to two trafficking charges in the Magistrates Court, and was committed to this Court for sentencing. The charges alleged that he trafficked in the drug on the day of each search. What he had actually did on the day of each search was to have possession of the drug for the purpose of selling it. That amounts to the crime of trafficking. He did not intend to sell all that he had. He was a user of the drug, and on each occasion intended that some of his supply would be devoted to his personal use.
In relation to the search on 29 May, Mr Marshall pleaded guilty to six charges that I will deal with under the Criminal Code, s385A:
· He pleaded guilty to having possession of a controlled drug name dexamphetamine. The police found 19 dexamphetamine tablets. Mr Marshall told them that the tablets had been prescribed for his landlord's son.
· He pleaded guilty to having used methylamphetamine on the day before the search. He told the police he had done that.
· He pleaded guilty to possessing cannabis. During the first search the police found 0.2 grams of cannabis resin, 34.6 grams of cannabis in a shed, 1.2 grams of a cannabis/tobacco mixture, and a cannabis plant that was drying out.
· He pleaded guilty to having used cannabis. He admitted having used it the night before the search.
· He pleaded guilty to cultivating cannabis. He told police that he had grown the plant that was drying out when they found it, that he expected to get about six ounces of cannabis from it, and that he was going to smoke that cannabis.
· He pleaded guilty to possessing a smoking device that was found during the search.
In relation to the second search, Mr Marshall pleaded guilty to four charges that I will deal with under s385A:
· He pleaded guilty to using methylamphetamine on 11 July, two days before the search. He admitted to the police that he used it a few times per week.
· He pleaded guilty to possessing cannabis. During the second search police officers found 8.6 grams of cannabis and 2.8 grams of a cannabis/tobacco mixture.
· He pleaded guilty to having used cannabis on the day of the search. He admitted having smoked it a few hours before the police arrived.
· He pleaded guilty to possessing a smoking device. The police actually found two such devices during the second search.
Apart from the drugs and smoking devices, the police officers also found electric scales, plastic zip lock bags, and $1,000 in cash during their searches.
Mr Marshall is 26 years old. He has a long criminal record, but it relates mainly to crimes and offences committed during his adolescence. He stopped offending when he was 18 years old, except for an incident shortly after his 22nd birthday, when he committed four assaults. He was sentenced to only 49 hours' community service for those assaults. He has no convictions for drug offences. He is a family man, with two children. He is employed as a scaffolder. He had a terrible experience last December when he was driving a vehicle that was involved in an accident. His best friend was killed. It was a single-vehicle accident. He has been charged with causing death by dangerous driving. That charge has not been disposed of. As a result of the accident, he has suffered a number of psychological symptoms. He was injured in the accident, and as a result is not able to work for more than 20 hours per week. He resorted to the use of methylamphetamine because of feelings of depression and guilt following the accident. He resorted to selling the drug in order to finance his personal use of it. Initially he sold it only to six or seven other people whom he knew to be users of it. As time went on, he obtained and sold larger quantities.
The Crown are seeking a pecuniary penalty order in the sum of $27,800. That represents the proceeds of three months' sales of 8-balls at $600 per 8-ball, less the sum of $1,000 seized by the police. Mr Marshall has no significant assets and lives in rented accommodation but, because of his earning capacity, there is a prospect that, over time, the State could recover from him either the full $27,800 or a substantial part of it. In those circumstances, I see it as my duty to make the order sought. That order is likely to have a substantial impact on Mr Marshall. I will take that into account in his favour, and treat him more leniently in other respects than I otherwise would.
Because Mr Marshall continued to sell methylamphetamine after he had been found by the police in possession of a valuable quantity of that drug, I think the only appropriate penalty is a prison sentence. I will impose a single global sentence in respect of all the crimes and offences that I am dealing with. Because of Mr Marshall's personal circumstances, I will suspend part of his sentence.
Damien Wesley Marshall, I convict you on counts 1, and 4 to 9 inclusive on complaint 33259/09 from the Launceston Court of Petty Sessions, and on counts 1, and 3 to 6 inclusive on complaint 33353/09 from the same court. I sentence you to nine months' imprisonment with effect from 7 October 2009, with five months thereof suspended on condition that you commit no crime involving illegal drugs for three years after your release from prison. I order the forfeiture to the State of Tasmania of the following items that were seized by police officers: three smoking devices, one set of electric scales, a quantity of small zip lock bags, and $1,000 in cash. I assess the value of the benefit derived by you from the commission of the crimes of trafficking in a controlled substance to be $27,800. I order that you pay that sum to the State of Tasmania as a pecuniary penalty. I order you to pay your victims of crime compensation levies of $300 within 28 days after your release from prison.