STATE OF TASMANIA v JACOB ANTHONY BURDON 22 FEBRUARY 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Burdon, you have pleaded guilty to one count of trafficking in a controlled drug. You have also pleaded guilty to a minor offence of using cannabis and another of using cocaine.
The trafficking was committed on 10 March 2018. It arises from the drugs of MDMA and MDA being found in your possession on that date. In particular, police found some of the drugs in your possession during a search of a motor vehicle in which you were travelling, and then found more drugs during a subsequent search of your home. In total, you were found in possession of 398.8 g of MDMA and 55 g of MDA. This equates, in aggregate, to 1,815 ecstasy tablets, with the potential sale value of between $72,000 and $90,750. The prosecution asserts the crime of trafficking on the basis that you possessed, transported and/or guarded or concealed the drugs with the intention of selling them. You concede this but assert that a significant amount was intended for your own use, and that the sale of the balance was for the purpose of recouping the cost of all of the drugs and hence facilitating your personal use of these drugs.
You are now aged 30 years and were 27 at the time of commission of this crime. You had some difficulties in childhood and have had a significant drug problem since 2012, when you would have been in your early 20s. This is consistent with your criminal history, which contains a number of drug convictions. In 2012, you were convicted of the minor offences of selling and supplying a controlled plant. You were again convicted in 2013 of selling a controlled plant. In 2014, you were sentenced by this Court to a short term of imprisonment and probation for the crime of trafficking in a controlled substance. You committed that crime by arranging and receiving a postal delivery of a trafficable quantity of ethylphenidate, otherwise known as Ritalin. This was also a situation in which you intended to use a significant amount of that drug for your own use, but intended to sell some to recoup its cost. This was accepted by the sentencing judge.
Your counsel says that after that sentence, you managed to get on top of your drug problem for a time. You entered a relationship, and things were going well until the relationship fell apart due to your partner’s infidelity. In 2017, you began using drugs again which you claim was a reaction to the emotional effect of the failure of your relationship. You were in the grip of addiction when you committed this crime.
After your arrest for this crime, you entered another relationship and your child was born. That relationship has now ended, but I am told that you are significantly motivated to change, and have insight into your drug problem. You have the support of your immediate family. I accept your plea of guilty as consistent with that state of mind, although the plea was not entered at an early time. Further, after entering the plea and having your bail extended for the purpose of sentence, you failed to appear in court and a warrant was issued for your arrest. Police were required to locate you in order to execute the warrant, and you have been held in custody since that time. You will not be punished by me for the breach of bail, but your failure to appear for sentencing does throw some doubt on your commitment to rehabilitation. Having said this, your counsel has explained the difficult circumstances in which you found yourself when you made the decision not to appear. This goes some way to explaining your non-appearance, but thereafter you did not make any attempt to hand yourself in. My ultimate conclusion is that I think you do genuinely want to put your drug problem behind you, and are motivated to do so because of your child, but I think your longer term and more recent history demonstrates that your ability to sustain such a commitment is questionable. More importantly, you have demonstrated a propensity to resort to selling drugs to sustain your addiction. However, despite my reservations, I will place some emphasis on the need to support and encourage your rehabilitation when assessing sentence.
On the other hand, trafficking in illegal drugs is a serious matter. It is a crime which, irrespective of the identity of the drug, causes great harm throughout the community, both in terms of its impact on the health of users and the consequential and associated offending which it underpins. These matters are of considerable concern to law abiding members of the community. You will be sentenced on the basis that your commission of this crime was reflective of a relatively small scale operation, designed to fund the cost of your own drug habit. There was no paraphernalia or other evidence located by police that would suggest that you were carrying on a business with a strong commercial element. However, the quantity of drugs in your possession was significant. General deterrence is an important sentencing consideration. Further, given your prior criminal history, the sentence must also take into account the need for personal deterrence.
The orders I make are as follows:
1 You are convicted of the crime and the offences to which you have pleaded guilty.
2 You are sentenced to a global term of 18 months’ imprisonment, which will be backdated to 13 December 2020. In order to encourage your rehabilitation, it is appropriate to make an order for your early release on parole. Accordingly, I order that you not be eligible for parole until you have served one half of the sentence.
3 I make the forfeiture orders sought by the prosecution. Further, I order pursuant to s 36B of the Misuse of Drugs Act 2001, that you pay, by way of the prosecutor’s costs, the cost of analysis of the MDMA and MDA, which I assess in the sum of $6,090.