TASMANIA v STUART MARK FRANCIS MARSHALL 29 OCTOBER 2009
COMMENTS ON PASSING SENTENCE PORTER J
You are to be sentenced on your plea of guilty on complaint to trafficking in cannabis. That is count 2 on one complaint. I agreed to deal with, and you have now also pleaded guilty to, a total of eight minor drug offences. These offences are possessing cannabis seeds and cultivating the plant, possessing a smoking device and using cannabis. They are contained in one further complaint. There is also one count each of possessing and using cannabis, and one each of possessing and using ecstasy. Those charges are contained in counts 2, 3 and 4 of a third complaint and the one count in a fourth.
The offences span the period from March to October 2008. Dealing with the trafficking charge first, this relates to the period June – August 2008. A police search of your home in October revealed a used smoking device and a small quantity of cannabis seeds. These are the subject of the two minor offences. Whilst being interviewed as those matters, you admitted that you had planted and grown some cannabis seedlings which was intended for your personal use. You admitted using the smoking device to smoke cannabis. When asked whether you had ever sold cannabis, you said you had been doing that basically every day for a couple of months, but had stopped about two months previously. You said that you sold to family and friends. You also said that you purchased the cannabis by the ounce, used 20 per cent of it and sold the remainder. The money gained was used to purchase more bags of cannabis, with leftover money going on daily living expenses. On the basis of your admissions it is calculated that a total amount of $9,450 was involved in your sales. This amount is not disputed. Whilst it is said that you voluntarily desisted from selling, it is clear that police were alert to your activities.
As to the other matters, you were intercepted in a motor vehicle in July 2008. Two ecstasy pills and some cannabis were located in a search of the vehicle. You later admitted these drugs were yours. You said that that you had last used ecstasy about four months previously, whilst you had used cannabis the night before. These matters give rise to four further minor offences of possession and use.
You are 27 years old and in a stable relationship. You have two children by previous relationships and you maintain regular contact with the children. You are currently unemployed, but up until a back injury in 2007, you had a good industrial record. In your teens you excelled at sport but I am told that you suffered a rib injury which put an end to that. Surgery was required but delayed for some reason. You had tried cannabis earlier but chronic pain from this rib injury led to an increase in your use. After treatment of the injury a psychological dependence remained. You became part of a loose network of associates from whom you sourced cannabis. You also sold within this circle and ultimately progressed to ecstasy use.
At the time of these offences you were not able to work and were essentially unemployable because of your back injury. You were also, it appears, suffering the breakdown of the relationship with one of the mothers of your children. It is said that you were not greatly enriched by the sales, but used the activity to fund your own supply, with a small amount of cash profit involved. On your behalf it is said that there have now been significant changes in your life. You no longer suffer pain from your back injury and you are able to return to work. Apparently you have good prospects in that regard and you are also again playing sport. You have taken on a far healthier lifestyle and, I am told, resolved not to involve yourself in any drug-related activity. These seem to be positive signs of your rehabilitation. I take into account that you have pleaded guilty to all of these matters. Nonetheless the overall extent of your involvement in illegal conduct was far from insignificant. Further, although you have no prior convictions for drug matters, you have a lengthy record of traffic matters showing some disregard for authority. Indeed you were the subject of a suspended gaol term for driving offences when these offences were committed.
In assessing penalty, I take into account the fact that you will be the subject of a pecuniary penalty order for an amount of approximately $9,500 and that it is likely enforcement proceedings will be fruitful. This amount is a gross figure and does not take into account the cost of the cannabis to you, so on that basis it represents a fairly weighty financial penalty. I think it appropriate to deal with your conduct on a global basis, and to deal with it all by way of a suspended term of imprisonment having regard to that financial impost which I have just mentioned. You are convicted of all matters and sentenced to 3 months' imprisonment, the execution of which is suspended on condition you commit no offence under the Misuse of Drugs Act for a period of three years. I make a pecuniary penalty order in the sum of $9,450. There will be a forfeiture order in respect of the smoking device seized by police. You will have to pay the victims of crime compensation levy of $210 within 28 days.