THE QUEEN v JASON PETER EARLE 31 MARCH 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Earle, the defendant, has pleaded guilty to three crimes under the Commonwealth Criminal Code. They are attempting to import a marketable quantity of a border controlled drug, trafficking in a marketable quantity of a controlled drug, and possessing a controlled drug. The facts are as follows. On 8 April 2019 Border Force officers in Tullamarine, Victoria, intercepted a mail article that had arrived from Thailand. The consignee was ‘Jessica Roberts’ of 10 Main Street, Ulverstone Tasmania. There was a mobile phone number on the label and the declaration stated that the contents were “Bra – Underwear”. When inspected, the package was found to contain bras and underwear as well as 12 handbags. One handbag was found to contain a white crystalline substance which, when tested, returned a positive presumptive test for methamphetamine. When in turn examined, all 12 handbags contained quantities of the same substance. The first bag examined contained 88.7 grams; the total found in the 12 bags was 885.8 grams. Enquiries showed that the phone number had been disconnected and, I infer, the name of the addressee was fictitious. Federal Police arranged for a substituted controlled delivery of the consignment, and, on 16 April 2019, an undercover police officer delivered the package to 10 Main Street, Ulverstone. The defendant was at the house, as was a woman, Ms F. At the time of the delivery, the defendant told the officer that Jessica Roberts was asleep inside but he would wake her up and get her to sign for it. He left and came back a short time later with Ms F who told the officer her name was Jessica Roberts, that she lived there but did not have any identification with her at the time. The package was left with her. Shortly after, the defendant, Ms F and a young female walked a short distance to a motor vehicle. Ms F and the young female drove away. The defendant went back to the house momentarily, walked away again and then returned. He then left the house with the package and put it on the back seat of the motor vehicle which had been driven there by Ms F. A short time later, officers from Federal Police, Tasmania Police and Border Force executed a search warrant. The package was found in the car along with a small clip-seal bag which contained a white crystalline substance. In the house, officers found mobile phones and paraphernalia associated with drug trafficking. These included large quantities of clip-seal bags and electronic scales. In addition, officers found quantities of what was later confirmed to be cannabis and cannabis seeds. One of the phones showed text messages between Ms F and a person with a nickname, later discovered to be that of the defendant, discussing the arrival of the package. The defendant was interviewed, but made “no comment” responses to questions about the importation of the package. He agreed that he had put the package on the back seat of the vehicle. Forensic analysis confirmed that the white crystalline substance found in the consignment was indeed methamphetamine, with a purity of 80%. The net pure weight of the drug was found to be 708.6 grams. A marketable quantity of the drug is 2 grams. The net pure weight has an approximate wholesale value of between $151,840 and $227,760, or sold in ‘street’ deals, a value of approximately $354,300. The substance in the small clip seal bag found in the car was also shown to be methamphetamine with a pure weight of 21.1 grams. On the basis of some of the text messages, the Crown alleges that the defendant sourced this from interstate and intended to sell it; movement and possession with that intention making out the crime of trafficking. That amount has values of between $3,620 and $5,425 wholesale, and $10,550 if sold in ‘street’ deals. The cannabis weighed 32 grams, and the quantity of cannabis seeds weighed 1.5 grams. Under the Criminal Code, the maximum penalty for attempting to import a marketable quantity of a border controlled drug is 25 years’ imprisonment and/or a fine of 5,000 penalty units (presently $1.05m). The maximum penalty for trafficking in a border controlled drug is the same. The penalty for possessing cannabis, is imprisonment for 2 years and/or a fine of 120 penalty units (presently $25,200). I note that as I am dealing with multiple offences, I need to bear in mind the overall or total effect of the sentence, and, given the defendant’s crimes are linked, the need for a proportionate response. I also note the defendant first appeared in the Magistrates Court on 17 April 2019, pleaded not guilty to a charge equivalent to the first count, and was committed to appear in this Court on 11 June 2019. He did not spend any time in custody in relation to the matter.
The defendant was 48 years old at the time; now 49. He has previous relevant convictions. These were imposed in Western Australia. The offences and the years are as follows. Possessing cannabis with intent to sell/supply – 1991, cultivating cannabis with intent to sell/supply, and possess cannabis – 1993, possess cannabis – 1998, possess amphetamine and cannabis – 1999, possess amphetamine and two separate charges of possess cannabis – 2000, cultivate cannabis and possess a prohibited drug – 2001. The defendant was born in the United Kingdom. He has an adult daughter living in Australia and two young children in the UK. He came to Australia when he was 11 years old, and completed years 7 and 8 of his schooling in Western Australia but did not progress further. He obtained work in the retail sector very quickly after leaving school, and then worked for some time in the scaffolding industry and then doing security work in the health sector. After about six years he returned. His parents are in Tasmania. He was living with his father at the relevant time; his mother is a resident in a nursing home, regrettably paralysed as a result of a stroke. The defendant is not now working and has not been able to do so since about 2014. Over two years he had both hips replaced. He has osteoporosis. He attempted some scaffolding work in 2018, but found the pain was too great. I am told that at the heart of the offending is a very lengthy history of drug use and abuse. He started using cannabis when he was 12 years. He developed an amphetamine habit when he was about 21, and has struggled with drug addiction all his adult life. He is not able to offer any explanation as to his involvement with addictive substances. He does not suggest that there is anything in his background which would predispose him to substance abuse. He met Ms F as they were both drug users. They became quite close. The idea to obtain a quantity of methamphetamine was formulated between the two. The purpose was to support their mutual use. I infer that some of the drugs would have been for personal use and that sales would be made in order to generate profits so as to fund continued use. I am told that he knew the consignor in Thailand personally. That person has been arrested and as a result of the transaction is facing the death penalty. That is something that weighs very heavily on the defendant’s mind and, I am informed, is something which “significantly deepens his remorse”. I am told that essentially a largish quantity of the drug was arranged to be sent but the defendant was unaware of the precise amount to be delivered until shortly beforehand. I am also told that at the time of apprehension by police, the plans for distribution and sale were vague and without specifics.
Australian courts have repeatedly made it clear that this sort of offending is to be regarded in a very serious light, and that heavy penalties in response are called for. The need to deter others and to strongly denounce and condemn this sort of conduct is of paramount importance. Methamphetamine use in the community is extremely costly in both human and economic terms. The drug causes much disruption in the community. Addiction is a significant health issue. Addiction leads to the commission of crime for funding. The use of the drug is often responsible for violence, some of which is unseen or undetected. Police and emergency services resources are often involved in dealing with the consequences of the drug’s use and abuse. In these types of cases, the first consideration is the role of the offender. In this case, the defendant’s role was a primary one. He was not a mere courier or conduit. He arranged the importation and was to be directly involved in its distribution from which he intended to profit. He was already engaged in trafficking activities. I take into account that he is an addict and that this was the trigger for the offending, but the law is that in the absence of anything in an offender’s background which might explain resort to illicit substances, addiction per se is of no mitigatory weight. At the same time, in this case, I think the defendant’s addiction means an absence of the aggravating factor of a sole motive of pure financial gain. There is no suggestion of wealth or a lavish lifestyle. The quantities of the drugs involved are important factors. The amount the subject of count 1, 708.6 grams, is 354 times the marketable quantity and only a little shy of being a commercial quantity of 750 grams; the percentage being 94.5. Even had he not known the precise quantity in the consignment, it would have been of little assistance to him: see Wong v The Queen [2001] HCA 4, 207 CLR 584 at [68]-[69]. The trafficking charge involved 10 times the marketable quantity. Although the defendant’s prior convictions are of some age, they remain of relevance in terms of specific deterrence. That factor is of some weight in the sentencing exercise.
The defendant is entitled to a discount for his pleas of guilty because of their utilitarian value. I do not see any evidence of remorse in any relevant sense. It is not suggested that there are exceptional circumstances requiring regard to be had to the effect the sentence will have on the defendant’s family. He has no dependants. At the same time, I take into account the age of his father and the fact that, due to COVID-19 restrictions, the defendant has not recently been able to see his mother. Given the state of her health, he recognises that he might not see her again. I do not lose sight of that. Lastly, in passing sentence, I have regard to sentences passed in comparable cases in this and other jurisdictions. The discussions and the cases referred to in Dunning v The Queen [2018] TASCCA 21 are helpful in this respect. The clear pattern is one of a stern response.
Mr Earle, I have set out what I see to be the factors that relate to your case and the weight that needs to be given to them. I repeat that the predominant consideration is the need to deter these types of criminal activities. As I have said, it is well established that stern responses involving heavy sentences are required. I think a global sentence is appropriate as the three crimes really make up a course of conduct in which you were engaged and which involve your own drug use. Ignoring for the moment the discount for your pleas of guilty, I think the appropriate sentence would be 9 years. Applying an approximate 20% discount for the pleas, you are sentenced to 7 years and 3 months’ imprisonment to commence on 20 March 2020. In assessing the question of parole I take into account your personal circumstances and the age of your prior convictions. I order that you not be eligible for parole until you have served 3 years and 9 months of that sentence.