TASMANIA v FABIAN JAMES ACKERLEY TRUEMAN 2 NOVEMBER 2009
COMMENTS ON PASSING SENTENCE BLOW J
Mr Trueman has pleaded guilty to a charge of trafficking in a controlled substance. Between 11 May and 19 July last year, he trafficked in ecstasy. On 11 May he was observed by a police officer buying a quantity of the drug that had been imported from Victoria. The Crown alleged that he bought 1,500 tablets, and that he paid about $30,000 for them, but he disputed those allegations. I concluded that I was not satisfied beyond reasonable doubt that he had bought so many tablets, nor that he had paid so much, but that I was satisfied beyond reasonable doubt that he had bought hundreds of tablets and paid thousands of dollars for them. The police did not intercept him or even follow him on 11 May, but he came to their attention again on 19 July when he sold an ecstasy tablet to a woman in Hobart. He was found in possession of 22 ecstasy tablets, 16 of which had the same appearance as those he purchased in May. I am satisfied beyond reasonable doubt that he provided hundreds of ecstasy tablets to other people in return for money or other benefits over the 10 weeks from 11 May to 19 July. His counsel told me that he sometimes swapped his ecstasy tablets with other drug users. He was using ecstasy himself during this period.
Mr Trueman was 21 years old at the time, and is now 22. He started using ecstasy in the latter part of 2007, when he was 20. No doubt immaturity and peer pressure are common factors when a person of that age starts to use that drug. However Mr Trueman's counsel told me that he got involved with it because of psychological problems. That was not disputed, and I will sentence him on that basis. Some tragic events occurred in his family, beginning in mid-2001 when he was 14. I do not think I need summarise the events involving other family members. When he was 16, Mr Trueman was mercilessly assaulted by a group of men. He was too scared to report the assault. It appears that the assault and the traumatic events within his family had effects on his personality and his behaviour. His psychologist has gone so far as to say that he is suffering from post-traumatic stress disorder. Over time, he went from being an outgoing individual, a hard worker, and an active sportsman to being a withdrawn, moody and troubled individual. He is an apprentice electrician, working for Aurora. He had been respected as a hard worker, but his supervisors reached the point where they were thinking of sacking him. He ceased to communicate with his parents. His use of ecstasy increased. On 22 June 2008, during the period that the present charge relates to, he committed a serious assault. He was charged under the Criminal Code. On 10 October 2008 he was sentenced to six months' imprisonment. He continued to traffic in ecstasy for some weeks whilst on bail on that charge.
However he began to take positive steps before pleading guilty to that charge last October. He spoke to his work supervisor about the charge, and about his poor work performance, before she had got around to speaking to him. Yet it seems that he was somewhat slow to give up ecstasy. He appealed against his sentence on the assault charge, and was granted bail within weeks of being sentenced. Police officers obtained a search warrant and searched his bedroom on 20 November 2008. They found a single ecstasy pill, matching those imported last May. I am not dealing with any charge relating to that pill, but it is relevant to the history of Mr Trueman's rehabilitation.
Apart from the results of the police search last November, the material before me indicates that over the last 12 or 13 months Mr Trueman has taken every reasonable step to rehabilitate himself. He has not lost his apprenticeship. He is highly regarded in his work once again, to such an extent that Aurora decided they would have him back even if I were to send him to gaol for this crime. He seems committed to psychological counselling, to not abusing alcohol or drugs, and to not re-offending. He has expressed remorse for the assault and for his drug activities. His relationships with family members, friends and work colleagues have been restored.
I consider it very significant that Mr Trueman has already served a significant sentence of imprisonment for offending in mid-2008. As he has served that sentence and been released, I think it would be unfair now, in all the circumstances, to send him back to prison for his trafficking. If this case had come before me while he was still serving that sentence, I might have taken a less lenient course, and imposed a cumulative term of imprisonment. But the authorities have been slow to bring these proceedings to a conclusion. Although Mr Trueman was caught dealing in ecstasy in July 2008, he seems not to have been charged with trafficking until some four months later, after the search in November. After a couple of lengthy adjournments in the Magistrates Court, he arrived in this Court in May, but Crown counsel sent the file back to the police for completion in late June. He completed serving his sentence in early August. Even on 26 August, Crown counsel told one of my brother judges that the police file was "all but complete". There is every indication that the work that needed to be done on this case took months longer to complete than it should have. That factor alone does not entitle Mr Trueman to more lenient treatment. But, because of that delay, he has been able to demonstrate very forcefully his commitment to his rehabilitation.
In the circumstances, I think the most appropriate course is to impose a wholly suspended sentence and a community service order. The suspended sentence should deter Mr Trueman from re-offending. Mr Trueman, if you re-offend in the next two years, you can expect to serve the suspended sentence that I am about to impose, in addition to any other penalty that might be imposed as a result of you re-offending.
The Crown has applied for a pecuniary penalty order under the Crime (Confiscation of Profits) Act 1993. I expect Mr Trueman will be able to pay a pecuniary penalty by instalments out of his earnings. There is no reason for me to refuse to make a pecuniary penalty order. Under s22 of the 1993 Act, I have to assess the value of the benefits derived by Mr Trueman from committing the crime of trafficking; I have to ignore the expenses paid by him in purchasing ecstasy tablets; and I do not have the power to order him to pay any sum less than the total value of the benefits he has received. The evidence that I have as to the scale of Mr Trueman's trafficking is imprecise. Since the Crown bears the burden of proof, the only appropriate course is to make a conservative estimate. I have been told that the retail price of an ecstasy tablet was $35. I have made a finding that Mr Trueman acquired hundreds of such tablets last May. I accept that some were for his personal use. I infer that, whenever he exchanged any of his ecstasy tablets for anything else, there was ordinarily an equal exchange. Doing the best I can, I am satisfied that the benefits derived by him had a value of at least $6,000. I am not satisfied that the value of those benefits was significantly greater than that. I therefore propose to make a pecuniary penalty order in the sum of $6,000. I will take that penalty into account in determining what other penalties to impose on Mr Trueman.
I am also taking into account the fact that he spent a weekend in custody during the sentencing proceedings, and the fact that he pleaded guilty to this charge. In deciding what weight to attach to his plea of guilty, I am taking into account the fact that it was a late plea, but also the fact that it avoided the inconvenience and expense of empanelling a jury and of witnesses being called as to the events of last July.
Trafficking is a serious crime — so serious that it ordinarily results in a sentence of imprisonment. In this case, I think that a suspended sentence will provide sufficient personal deterrence to Mr Trueman. Because of his personal circumstances, I think that his rehabilitation is more significant than the need for general deterrence.
Fabian James Ackerley Trueman, I convict you and sentence you to five months' imprisonment, wholly suspended on condition that you commit no crime involving illegal drugs for a period of two years. I order you to perform 182 hours' community service. I assess the value of the benefits derived by you from the commission of this crime to be $6,000. I order you to pay that sum to the State of Tasmania as a pecuniary penalty. I assess the reasonable expense of and attending the analysis of the pills seized from you to be $224 and award that expense against you as part of the costs of the prosecutor. I order you to pay your victims of crime compensation levy of $50 within 28 days.