STATE OF TASMANIA v CHEV LEE DEACON 25 OCTOBER 2019
and JAXSON PAUL FOSTER
COMMENTS ON PASSING SENTENCE MARTIN AJ
Mr Deacon and Mr Foster, you have each pleaded guilty to trafficking in a controlled substance known as MDMA. The offending in November/December 2018 when you were both aged 18 years. Neither of you has previously been in trouble with the criminal law. It is a great shame that somehow you have become involved with an illicit drug. Mr Deacon, you have admitted selling 10 MDMA tablets in November 2018, and that conduct is part of the trafficking offence to which you have pleaded guilty.
On 22 December 2018, you, Mr Deacon, asked Mr Foster if he would take a quantity of MDMA tablets into a music festival which was to occur on 29 December. Mr Foster, you agreed to do so and, as arranged between you, on 28 December you met at the Kmart car park in Racecourse Crescent where the tablets were given by Mr Deacon to you. It appears that Mr Deacon handed over nearly 100 MDMA tablets.
On 29 December 2018 police were conducting drug and alcohol screening at the entrance to the music festival in Marian Bay. About 11.15am, the vehicle you were driving, Mr Deacon, was stopped by police for the purpose of screening. A police drug detection dog gave a positive response when it approached you and, in answer to a police request, you gave access to your mobile telephone. An examination of the phone revealed significant exchanges between you and a person whose name was given as “Dane Grubb”. The exchanges were arranging the supply of MDMA by you, Mr Deacon, to the other person and others. In the exchanges you asked how many the other person wanted and there was talk about how to smuggle the tablets in. You mentioned that someone named Scotty said he would vac seal the tablets for you. There was talk about dogs detecting the presence of tablets. The other person spoke about dropping cash off for the purchase of the drug. There was talk about the cost, and a number of names were mentioned with amounts alongside the names, which came to a total of $1,309. At the conclusion of the conversation you asked whether the other person could give you the money that day.
The presence of those exchanges on your mobile telephone at a time when you drove into the festival with the chance of being questioned is illustrative of the amateurish nature of your work in the sense that you did not take any precautions to ensure that such messages would not be immediately obvious on your phone. However, overall, the exercise was not entirely amateurish.
At about 11.30am you were interviewed by police and you admitted that the messages found on your phone were in relation to MDMA that another person was going to take into the festival. At that time you did not identify that person and you said the MDMA did not belong to you. You agreed there was a message that indicated that you had paid someone $2 a pill to bring the tablets into the festival, and you had done so because you did not want to take the risk.
Mr Deacon, you admitted that 10 of the 80 tablets were being brought in for you. In answer to specific questions, you would not comment when asked what you were going to do with them, but when challenged on that issue you said you were going to give them to friends that wanted them in the festival. You claimed that you would not get anything out of this exercise, and you were merely going to give the tablets to the people inside the festival if they wanted a tablet. You had no comment when asked who the people receiving the tablets would be paying. As to the person who was to bring the tablets into the venue, you said he would give you the tablets which you would then pass on to friends. Those friends would give you the money which you would pass on to the person who brought the tablets into the event.
On your version to police, you did not how how much a single tablet would cost, and you would have to ask the person who supplied the tablets. You claimed that, despite the fact that you were not to make any profit, you were still paying the person $2 a tablet to bring the tablets into the venue. When asked to explain the logic of that process, you had no comment.
As to previous involvement with MDMA, you admitted that you sold 10 MDMA tablets for $200 approximately four weeks earlier, but you would not comment on the specifics of where you had sold the tablets. You claimed you had taken MDMA once on your birthday that year, but did not like the effect it had upon you. As to the 10 tablets that were being allocated to you, after declining to comment, you claimed they were for you to use. Through counsel, you told me that they were for you to use over the three days of that festival. In essence, there were 80 tablets to come in, 10 of which were yours, and the remaining 70 you would supply to people who wanted them.
The cost of a pack of 10 tablets was $200, which was higher than the usual $180, but that included the $2 per tablet cost of getting them into the venue. When asked why you had 10 tablets for your own use if you did not like the effect from the one and only time you had previously tried these tablets, you had no comment.
After the interview had finished, you told police it was Mr Foster who was to bring the tablets into the festival. Police searched a social media platform and found a photograph of Mr Foster standing next to a particular vehicle. Details of that vehicle were given to police at the screening area and about half an hour after Mr Deacon told the police about Mr Foster, police stopped that vehicle and spoke with you, Mr Foster. When police examined your mobile telephone, they found a message, “Chev has given you up don’t take the fall for him.”
A search of the vehicle driven by you, Mr Foster, found nothing of interest. You said you had thrown the tablets out of the window prior to arriving at the festival area as you had been made aware that police were suspicious of you. It appears, however, that you then had a change of heart because you told police that you still had the tablets. You took them to the front seat of the vehicle were you opened a compartment in front of the centre consul. Hidden below was a bottle of vodka which contained vodka and vacuumed sealed plastic bags holding 99 MDMA tablets inside four individual sealed strips. Your actions with those tablets is the basis of the trafficking to which you have pleaded guilty.
The average MDMA content of the tablets was 0.2 grams. This gave a total weight of 19.8 grams of MDMA. A trafficable quantity is 10 grams.
Following discovery of the tablets, you, Mr Foster, were interviewed by police. You co-operated fully and made admissions that you had collected the tablets from Mr Deacon the previous day at the Kmart car park. You said you had sealed the tablets in the manner in which they were found by police, and you thought there were 100 tablets, although Mr Deacon had told you there were only 70. It was you who placed the vacuum sealed strips into the vodka bottle, believing, or at least hoping, that the sniffer dogs would not be able to smell them. During the interview you said that the plan was to return the tablets to Mr Deacon once you had met him at the festival, and you were not expecting to receive anything in return. You had no knowledge of the text messages discovered by police which indicated that someone was being paid $2 per tablet to bring them into the festival. You said nobody had given you any money for the tablets, but you understood that a tablet such as those Mr Deacon had given you were worth about $20 each and, ordinarily, a pack of 10 would be worth $200, but if you sold inside the festival it could be worth about $400. You understood the tablets were going to be used by four people who together had purchased the tablets, and you made that assumption because you knew that those who purchased the tablets were people who had previously consumed MDMA.
As to you own use of drugs, you admitted using an illicit substance approximately once a month, but you said that none of the tablets were assigned to you for your personal use. Asked why you were prepared to take the risk of being caught, you responded that you were not sure why, but said you were not expecting to get “stitched up”.
On 11 July 2019 both of you appeared in the Launceston Magistrates Court and pleaded not guilty to the charge of trafficking in a controlled substance. You were committed to the Supreme Court for trial. On 26 September 2019, you, Mr Foster, appeared in the Supreme Court and, through counsel, indicated you would be pleading guilty. Mr Deacon, through counsel, sought to resolve the matter in another way, but always intended to plead guilty. Both of you will receive the benefit of early pleas of guilty.
Mr Deacon you have declined to name your supplier because you fear for your own wellbeing. It is clear that you were well aware of how to obtain the MDMA and you did so. Then you passed the tablets over to Mr Foster. In other words, you created the plan and put it into effect by having Mr Foster take all the risk. While no direct monetary profit was anticipated, you hoped to profit to the extent of 10 tablets for your own use.
Mr Foster you were not involved in the earlier trafficking by Mr Deacon, and you played a lesser role in the events of 29 December 2018. Nevertheless, you had an important role and you made sure the MDMA would remain undetected. It is of course to your significant credit that although a search of your vehicle failed to find the MDMA, you volunteered that locality to the police.
Both of you come from stable and supportive families. You are both employed and, as I have said, you have not previously been in trouble with the criminal law. That helps to explain why I asked you the rhetorical question when you last appeared, “Why are you here?” You have had all the advantages and yet, here you are facing the criminal law. Your young ages and lack of prior offending, coupled with your stable environments, give confidence that you will stay out of trouble in the future and become honest and useful citizens.
Against those matters personal to you is the seriousness of the offending. It is at the lower end of the scale of seriousness, but it is well known that music festivals are havens for drugs of this nature and are places where young people experiment, and those who use drugs continue to take them. There have been, of course, very serious consequences at some music festivals in recent years. So general deterrence remains a significant matter to be taken into account.
Counsel have urged me not to record convictions. In your case, Mr Deacon, I have decided that a conviction should be recorded. Your trafficking involved a previous sale and, importantly, you planned and organised this offending. You sourced the drugs, you made the arrangements for the transport, and they were arrangements that could be carried out without risk to you. You planned to supply the drug to a number of persons, albeit persons who were users of MDMA.
You are convicted. You have already incurred a $1,400 financial penalty. I have already indicated that your offending is at the lower end of the scale of seriousness and there is great importance with your youth and rehabilitation. I have considered a range of sentencing options in respect of your offending, but I have decided that your offending requires a short term of imprisonment, but that term of imprisonment will be fully suspended. So you will not have to serve any time in gaol.
But for your early plea I would have imposed a sentence of imprisonment for four months. After allowing for your plea, I impose a sentence of imprisonment for three months. That will be suspended today, and it is suspended for a period of 18 months. That means that for the next 18 months you have this sentence of three months’ imprisonment hanging over your head. If you step out of line you will be liable to serve it. The conditions are:
1 You are not to commit any offence against the Misuse of Drugs Act, nor any other offence punishable by imprisonment.
2 You are not to consume in any way any illicit drug.
3 You are to submit to testing for illicit drugs, including by way of blood or urine sample forthwith upon request by a police officer.
So, Mr Deacon, you will be able to walk out of here today, but when you do that sentence of three months will be hanging over your head for the next 18 months, and if you break the suspended sentence by committing offences or using a drug, or disobeying a direction of a police officer to give a sample, then you will be in breach of the suspended sentence and you will be liable to come back here and to be sentenced to serve the three months. So you need to bear that in mind.
Mr Foster, I have already explained that your offending was limited to the transport on 29 December, and you were not involved in planning or obtaining the drugs. Importantly, even though it seemed that the drugs were not to be detected, you volunteered your hiding place.
You have consistently maintained that you were not to receive any of the drugs, or any recompense for your trouble in the risk that you took. You maintain that you were simply helping out of friend. As you may have heard when I discussed this matter with counsel, I was sceptical about that claim. But, having regard to all the material before me, and the submissions, including the fact that your name was not on the list in Mr Deacon’s SMS messages, I accept that you were just helping out a friend. In addition, you have written a sincere letter of apology demonstrating a good insight into the consequences of your offending.
I have also been provided with a number of impressive references. It is apparent that you have earnt the respect of others, and you are obviously a very good worker. I accept that this offending is out of character, and that you are highly unlikely to offend again. All of these factors come together, and they have persuaded me that I should not record a conviction in your case. This is an unusual course to take, but yours, in my view, is a special case.
Without conviction, you are fined $2,500, with an order that you must pay that fine within 28 days.
Both of you, in different ways, are very lucky. You have been given a chance. Go out, get on with your lives. And stay out of trouble. Good luck.