STATE OF TASMANIA v BRENDAN DAVID CRANSTON 12 JUNE 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Cranston, you have pleaded guilty to the indictable crimes of trafficking in methylamphetamine, assaulting a police officer and two counts of dealing with the proceeds of crime. You have also pleaded guilty to the summary offences of resisting police in the execution of their duty, evading police with aggravated circumstances, using an unregistered motor vehicle and using a motor vehicle with no premium cover. Finally, your commission of the imprisonable offences constituted the breach of a suspended sentence of five months’ imprisonment which was part of a sentence imposed on you on 15 December 2016 for the crime of trafficking in a controlled substance. The prosecution has applied for the activation of that sentence.
The crimes and offences arise out of events which occurred on 3 October 2017. On that day, two police officers observed you carrying out a drug transaction as part of your trafficking activity. You were doing so from the driver’s seat of your parked motor vehicle. Your partner and two young children, aged 9 and 5 were seated in the vehicle at the time. The police, who were both members of drug investigation services, recognised what was happening and stopped to speak with you. The police car was parked on the driver’s side of your vehicle and slightly to the front of it. One of the detectives approached the driver’s side window of your vehicle, identified himself as a police officer and told you to show him your hands. You refused to remove your hands from the steering wheel. Then, in order to escape from the police, you drove your vehicle from its parked position, moving it forward and towards the police officer. In the process, your vehicle pinned the police officer against the vehicle. He yelled at you to stop, and informed you that you had hit him, but you continued to accelerate. He was trapped for a number of seconds and was only released when the other police officer got back into the police vehicle and moved the vehicle to the right, thereby freeing him. You then drove off. The two police officers pursued you. In the end, your vehicle stopped when it collided with the police vehicle and you were arrested. You resisted arrest by refusing to put your hands behind your back for the purpose of handcuffing.
Your actions in driving your vehicle in such a way that you came into contact with and trapped the police officer, constitutes the crime of assaulting the police officer in the execution of his duty. Your actions in refusing to take your hands off the steering wheel of the vehicle and then driving it in the manner described to the point where you came to a halt, constitutes the offence of evading police with the aggravated circumstances of driving the vehicle recklessly or negligently. It is put by your counsel, in relation to the assault, that you did not intend to make contact with the police officer, and that the crime is constituted by your subjective recklessness as to this consequence. I accept this. It would seem to be consistent with what has been alleged in relation to the evade police charge, but in the circumstances of this case, the distinction between the reckless state of mind and an intention to hit the officer, results in very little difference in terms of your culpability. Your sole purpose was to escape apprehension and you drove your vehicle without any regard to the officer’s safety or welfare. You did not reverse your vehicle when you realised that he was trapped, and after he was released you drove off without any thought for his welfare.
The police officer attended hospital after your arrest. He had severe pain down his right side and limited movement. He was diagnosed with a muscular injury to the thigh. According to his impact statement, he has, since the middle of 2018, been experiencing increased pain in his right hip, which is attributed by his physiotherapist to the injury he sustained in this incident. His impact statement also describes the understandable fear he experienced at the time. For the time that he was trapped, he had no control over what was happening and feared the worst. Luckily, the quick thinking of his colleague avoided more serious injury. Despite this, your actions had the clear potential to cause such injury.
The other officer also suffered injury in the incident, in particular, a sprained thumb arising from the wrenching of the steering wheel as he was freeing his colleague.
The crime of trafficking relates to the sale of methylamphetamine on the day of that incident. However, the context of the commission of that crime is that it took place as part of a relatively sophisticated trafficking operation which the prosecution describes as a mid-level street selling operation. In subsequent searches, police found quantities of methylamphetamine stored in three different locations. Some of the drugs were found in bags prepared for sale in small quantities. They also located paraphernalia consistent with the sale of drugs. In total, police seized methylamphetamine with an estimated aggregate street value of $14,700, although your counsel submits that the actual street value would be significantly less than this. Police also found a number of text messages on your mobile telephone, which related to arrangements for the sale of drugs. A feature of the messages is that you directed some of the correspondence to the use of a messaging application known as Wickr. This application allows users to exchange encrypted, content expiring messages. After expiry, the application automatically strips the metadata from the telephone. The only possible purpose of the use of such an application is to avoid detection and destroy evidence of criminal activity. I accept the prosecutor’s submission that the use of this messaging application, together with the storage of stocks of drugs in saleable form in different locations, demonstrates a degree of sophistication in respect of the trafficking operation. Further, the drug involved was methylamphetamine, which is notorious as a highly addictive and damaging drug. Trafficking in such a drug causes considerable misery and harm throughout the community. General deterrence is therefore a relevant sentencing consideration in respect of this crime.
You are 35 years of age. You and your partner have four children, aged between 11 and 2. Your criminal history contains a number of serious drug-related offences. In 2011, you were convicted of drug offences, which included cultivating a controlled plant. In 2015, you were sentenced to a wholly suspended sentence for drug offences which included the minor offence of selling a controlled drug. This sentence was activated on 15 December 2016, when you were convicted by this Court of the crime of trafficking in a controlled substance, which had been committed in breach of that suspended sentence. It was for this crime that the sentence of imprisonment which was partly suspended, and which is the subject of the application for activation in this case, was imposed. That crime also related to trafficking in methylamphetamine, and at a level which is very similar to the activity relevant to this case. The sentencing judge accepted at that time that you were selling the drug in order to fund your own use of it. The judge agreed to suspend part of the sentence because of steps you had taken towards rehabilitation, and in order to provide you with an incentive not to reoffend. You were released from prison after serving that sentence in early 2017. Despite the incentive provided to you by the suspension of part of that sentence, you committed these crimes and offences some months later. The sentence had been suspended for a period of two years.
Your counsel submits, and this is confirmed in a letter you have written, and which has been provided to me, that you are remorseful for your conduct and desire to rehabilitate yourself. You claim to be motivated to rehabilitate by your responsibility as a father to your children. You should be motivated by this, but a true commitment to rehabilitation also involves dealing with the consequences of your conduct. I accept that you want to rehabilitate, and the fact that you have not committed any further offences since your arrest for this conduct is some evidence of that commitment. I also take into account your pleas of guilty in this respect. However, there are a number of very concerning aspects of your criminal conduct. You committed these crimes a relatively short time after release from prison and while serving a suspended sentence imposed for similar conduct. You claim to have returned to drug trafficking as a means of supporting your family. I can understand your desire to support your family, but it also means that your trafficking activity on this occasion related to commercial profit, not the support of your own drug habit. I have already discussed the sophisticated aspects of the drug operation. A matter of real concern is that you were carrying out the drug sale, and then committed the other offences which included the assault of the police officer and driving off in evasion of police, with two young children in the car. This shows a complete lack of insight with respect to the welfare of your children and is a matter which in my view significantly aggravates the seriousness of your crimes. They were old enough to see and hear what was happening, and were exposed to the criminal activity. This aspect of the offending deserves severe condemnation.
I am required by s 11A(3C) of the Police Powers (Vehicle Interception) Act to impose a separate sentence in respect of the charge of evading police. In relation to that charge, I note the particulars with which I have been presented to day. Your action in driving off and pinning the police officer against police car is part of the conduct to which the assault of the police officer relates. It is included also, I think, in the charge of evading police, and I am required to impose a separate sentence. I accept Mr Scott’s submissions that I need to ensure there is not double punishment, and I note that there is no prohibition, in the circumstances of a particular case, against ordering that such sentences be served concurrently.
Your conduct in assaulting the police officer, which was contemporaneous with the commission of the evade police offence, is a matter of considerable seriousness. The sentence should reflect the objective seriousness of this crime, the potential for injury, and the actual impact on the police officer. General deterrence is an important sentencing consideration in relation to such an offence. Police officers who are lawfully carrying out their duty on behalf of the community are entitled to the protection of the courts. Your use of the vehicle against a police officer on foot for the purpose of escaping lawful apprehension, and the presence of your children in the car at the time that you did so, are also aggravating factors.
Finally, I am required to activate the suspended sentence unless I am of the opinion that it would be unjust to do so. In the circumstances, it is clearly not unjust to activate that sentence and it will be activated. Further, your criminal conduct warrants a significant sentence of imprisonment. Your counsel has requested that I consider the option of home detention, but, in my view, your criminal conduct is too serious to give consideration to that sentencing option. Further, as you have now breached suspended sentences on two occasions, it is not appropriate to consider the partial suspension of the sentences. I will recognise the potential for your rehabilitation and your plea of guilty by permitting your release on parole at the earliest opportunity. I will also moderate the head sentences, which I would otherwise have imposed, to take account of the principles of totality.
The orders I make are as follows:
1 You are convicted of the crimes and the offences to which you have pleaded guilty.
2 The suspended sentence of five months’ imprisonment imposed on 15 December 2016 is activated. It will be served from 6 May 2019. I order that you not be eligible for parole until you have served one half of that sentence.
3 For the crime of assaulting police, and the offence of resisting a police officer, you are sentenced to a global term of nine months’ imprisonment, which will be served cumulatively upon the activated suspended sentence. You will not be eligible for parole until you have served one half of that sentence.
4 In relation to count 2 on complaint 9448/17, which is the charge of evading police with aggravated circumstances, you are sentenced to a period of three months’ imprisonment which will be served concurrently with the sentence imposed for the crime of assaulting police and resisting a police officer, that is, the sentence of nine months’ imprisonment. There is no need to impose a parole eligibility term in respect of that sentence. In respect of that charge, you are disqualified from driving for a period of two years, which is the minimum period permitted by the relevant legislation. I would normally order that such a disqualification commence from the date of your release from prison, so that you feel the full impact of that punitive option. However, I intend to order, as I am permitted to do by s 17(4) of the Vehicle and Traffic Act, that that disqualification commence from today, that is the date of the order. I have decided to adopt that option because of the very significant period of time that you have been subject to a bail condition preventing you from driving, and, further, because I think that the punitive part of this sentence is really the period of imprisonment. I think you do have the desire and potential to rehabilitate. As I said in a previous hearing, the main driver of that, in my view, will be your understanding of the need to properly fulfil your responsibilities to your family, and that will involve you obtaining and pursuing legitimate employment. I think that will be very difficult if you are subject to a further lengthy period of disqualification. So, for that reason, I have ordered that the minimum two year period permitted by the legislation commence from today.
5 For the crime of trafficking in a controlled substance, and the two crimes of dealing with the proceeds of crime, I impose a global sentence of 18 months’ imprisonment. That sentence will be served cumulatively upon the sentence imposed for the crime of assaulting police and resisting a police officer. You will not be eligible for parole until you have served one half of that sentence.
6 For the offences of using an unregistered motor vehicle and using a motor vehicle with no premium cover, I impose no further penalty.
I am satisfied that the sum of $13,370 seized by police from you is tainted property within the meaning of the Crime (Confiscation of Profits) Act 1993. Accordingly, pursuant to s 16 of that Act, I make an order that that money be forfeited to the State of Tasmania. I also make the other forfeiture orders sought by the prosecution pursuant to the Misuse of Drugs Act.
For the purposes of s 92A(3) of the Sentencing Act, I specify that:
1 The total term of imprisonment which you are liable to serve in respect of all of the above sentences is a period of 32 months commencing on 6 May 2019.
2 The total period that you must serve before you become eligible for parole is the aggregate of the non-parole periods relating to the said sentences, which is a total period of 16 months.