FORD B D

STATE OF TASMANIA v BRADLEY DANIEL FORD                             ESTCOURT J

COMMENTS ON PASSING SENTENCE                                                      4 JULY 2019

This is a difficult sentencing exercise where the obvious need for general deterrence must be balanced against the benefits of rehabilitation.

The defendant, Bradley Daniel Ford who was aged 31 at the time of the offending has pleaded guilty to one count of trafficking in methylamphetamine between 31 July 2016 and 25 October 2016.

He was a street level dealer, selling in the main, in relatively small quantities.  He was addicted to the substance during the period of the indictment and his dealing enabled him to both obtain methylamphetamine at a lower price and also to fund his own addiction.

The Crown asserts that during that period, on at least 80 occasions, the defendant sourced methylamphetamine from a now convicted trafficker, Timothy King, and on-sold a large portion of the methylamphetamine supplied.

It is asserted that the defendant most regularly acquired supplies of methylamphetamine in either 8-balls (3.5g), half-balls (1.75g) or single grams. The total quantum of methylamphetamine cannot be asserted with specificity.  It’s asserted that the accused sold quantities of methylamphetamine between 0.1g to 3.5g per transaction.

In addition to intercepts that reveal the defendant’s role as a sub-dealer to Mr King, on a number of occasions, the accused is revealed to be actively involved in Mr King’s trafficking operation.

For example one phone contact, a Ms Webster was subsequently interviewed by police.  She indicated that she would regularly purchase five points (0.5g) of Ice from the defendant to last for a week, and would pay $250 for five points at $50 per point.  The Crown asserts that this arrangement was ongoing during the period of the indictment.

The defendant has been assessed as unsuitable for home detention due to the lack of a suitable residence. I have however, as I have said, had the benefit of the pre-sentence report prepared.

The defendant is the second youngest of seven siblings. He reported a good relationship with his parents, whom he described as supportive throughout his life. With respect to his siblings, he has a positive and close relationship with two of his brothers and one of his sisters.

He is a father of 7 children aged between 3 and 18 years, who have been born to 4 separate relationships. He had recently been caring for his four youngest children, but since moving in with his new partner they are no longer under his care, and are being cared for by extended family members.

The defendant was diagnosed with ADHD as a child for which he was prescribed stimulant medication. He has an extensive history of substance abuse, which commenced with misusing that medication during childhood before progressing to cannabis, morphine, and more recently methylamphetamine.

He estimated that prior to being remanded in January 2018, he was smoking and injecting approximately 3.5 grams (approximate street value $1,000) per day, which was primarily funded by selling drugs.  He claims to have maintained abstinence from illicit drug since being bailed in January this year and he is accessing suboxone pharmacotherapy via the Alcohol and Drug Service.

The defendant’s prior employment consists of agricultural labouring at a Chery Farm and 6 months factory work for Juicy Isle from 2008 to 2009.  He is currently unemployed, aside from relief removalist work for Little Green Truck. However he is currently part-way through a Certificate II in Welding course. He attends three days a week and is scheduled to complete the course in approximately 8 weeks. He is optimistic he can obtain employment with Incat after he completes that welding course.

The defendant states that he regrets and feels ashamed of his actions. He acknowledges that his actions contributed to the addiction and suffering of other drug users, as well as drug related offending committed in the community. In response to his offending, he claimed he has ceased using illicit drugs and is accessing pharmacotherapy as already noted. In addition, he said he is keeping away from his old associates and instead he has focussed on completing his welding course.

Upston [2018] TASCCA 4 was a trafficking case with some slight similarities to the present case, where the appellant was an addict who concealed and guarded a total of 24.6 grams of methylamphetamine and 14.2 grams of morphine, with knowledge that others intended to sell it.

In his judgment Porter AJ with whom Blow CJ and Pearce J agreed said at [27]-[28]:

“Generally speaking, except where there is serious adversity in a person’s background that provides an explanation for drug abuse, an addiction is not usually of itself a mitigating factor: DPP v Poole (above) at [32]-[33]. An addiction often provides an understanding of an offender’s motive. In the case of drug trafficking, the criminality of a person who offends merely to feed an addiction, is ordinarily regarded as less than that of the person who offends purely for commercial gain: Stebbins (above) per Pearce J (Tennent J agreeing) at [102], [110]; R v Lacey [2007] VSCA 196 at [12]- [15]; R v Koumis [2008] VSCA 84, 18 VR 434 at [50]- [51] and the cases cited. The fact that an addiction has led to offending may indicate that the offender is ‘less deserving of condemnation than the primary facts, without more, might suggest’: R v Hammond [1996] QCA 508; [1997] 2 Qd R 195 at 199-200.

As noted in Koumis at [50], the motivation of the drug addict who traffics solely to feed a habit may be viewed as either the absence of an aggravating circumstance or as a mitigatory circumstance: see respectively Lacey at [12] and R v Henry [1999] NSWCCA 111, 46 NSWLR 346 per Wood CJ at CL at [225], [273]. However that debate is resolved, ordinarily there will be differentiation between the sentences imposed on the two types of offender, noting of course that each case turns on its own facts and circumstances.”

In that case, a sentence of sentence of three years’ imprisonment with one year suspended, and non-parole period of two years, was set aside as excessive, and the appellant sentenced to 15 months’ imprisonment the execution of nine months of which was suspended.

In the present case the defendant also appears to have been motivated by addiction and to have rehabilitated himself and is now living in a drug free environment, has part-time employment and the prospect of further employment.

While I do not accept that a partially suspended sentence as low as 15 months would be appropriate in the defendant’s case the considerations alluded to in Upston should be taken together with what Blow CJ said in DPP v Williamson [2013] TASCCA 6 at [23], namely:

“23       Sentences of less than 3 years’ imprisonment are a little more common in trafficking cases. I think it is fair to say that sentences in the vicinity of 2 years’ imprisonment are generally attracted by involvement in commercial operations of a substantially smaller scale than the operation that is the subject of this appeal.”

Even taking into account the steady increase in sentences for trafficking in more recent times, see for example Billinghurst v Tasmania; Leaman v Tasmania  [2018] TASCCA 16; Upston v Tasmania [2018] TASSCA 4; Le v Tasmania [2017] TASCCA 21; Farhat v Tasmania [2017] TASCCA 20; Cooper v Tasmania [2017] TASCCA 3; Roland v Tasmania [ 2016] TASCCA 20; Deakin v Tasmania [2016] TASCCA 19, I am satisfied that a head sentence of  two year’s imprisonment is appropriate in the defendant’s circumstances. However, given his addiction as the cause of his offending, and his apparently successful rehabilitation by way of addressing his long standing drug problem, and training for suitable employment since his release on bail on 25 May 2017, I propose to structure a sentence that does not see him return to prison if he remains on that path.

The defendant has already spent some 399 days, that is some 13 months in custody in relation to this charge of trafficking, however the Crown have sought to activate a suspended sentence of two months’ imprisonment for common assault imposed by a magistrate on 16 February 2016, and I must first deal with that.

That assault occurred within the Hobart Reception Prison and the Crown submits that this present offending – continuous offending over a four month period and continuous engagement in criminality was in direct breach of the terms of that sentence. The Crown assert that the trafficking commenced only some five months after the imposition of that sentence, and at a time that the accused was made subject to an actual term of six months’ imprisonment on 16 February 2016, relating to the cultivation of a controlled plant.

I have had regard to the relevant considerations which should properly be taken into account when considering whether it would be unjust to activate a suspended sentence as outlined by Brett J in Moore v Salter  [2018] TASSC 18 at [36] – [39]

While I appreciate the connection that the Crown alludes to between the assault and the trafficking I have ultimately reached the view that in all the circumstances the nexus is insufficient to my mind to make it just to activate any part of the sentence, so I record the breach and make no order.

The defendant is convicted of trafficking and is sentenced to two year’s imprisonment backdated for 399 days, with the balance from today suspended on the condition that the defendant commit no offence punishable by imprisonment for a period of 2 years from today.

In addition I make a community correction order for a period of 12 months with the statutory core conditions including reporting to a probation officer at Community Corrections at Highfield House, 114 Bathurst Street, Hobart, before 8 July 2019. Special conditions will be that within a period of 18 months the defendant must satisfactorily perform community service, as directed by a probation officer or a supervisor, for 140 hours and that during the operational period of the order, must undergo assessment and treatment for drug dependency as directed by a probation officer and finally, during the operational period of the order, must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.

I make a forfeiture order pursuant to s 38 of the Misuse of Drugs Act for the forfeiture of all items on property seizure record receipts 152537 and 152538.