STATE OF TASMANIA v ROBERT WILLIAM FRENCH ESTCOURT J
COMMENTS ON PASSING SENTENCE 17 MAY 2019
The defendant has pleaded guilty to trafficking in a controlled plant or its products, namely cannabis, and possessing a controlled plant, namely cannabis, and using a controlled plant, namely cannabis. The latter two of those charges I have agreed to deal with under s 385A of the Criminal Code.
On 3 January 2019 police intercepted the defendant’s car at Triabunna. An officer spoke to him and asked when he had last smoked cannabis and he replied yesterday. The defendant was then asked whether he had drugs on him in the car, and he produced four small quantities of cannabis to police from the centre console. Those quantities were two foils containing a total of 6.6 grams of cannabis, a snap-lock bag containing 8 grams and another containing 1.4 grams. The defendant was asked whether he was selling cannabis and he responded “Yep, I sell about $150”. He was asked how often he sold that and he responded that he sold that much every day, and had done so for about 6 to 8 months. The defendant was made subject to an oral fluid test to which a positive reading was returned. He was transported to the Triabunna police station. A search warrant was obtained for the defendant’s residence at Triabunna and police attended and found snap-lock bags containing small quantities of cannabis and a set of scales. The defendant later participated in a video record of interview with police. Relevantly, he told police that he does not sell in larger quantities, only once in a blue moon he would sell a half ounce bag for $130, sometimes he sells full bags but on an average day he would sell $150 of cannabis. He purchases a half pound of cannabis from a person he knows every three or four weeks. Of the half pound he purchases, he sells five ounces and keeps three ounces to smoke. He sells the five ounces for enough money so that his own cannabis doesn’t cost him anything. He doesn’t make any profit from cannabis. He only received $545 per fortnight from Centrelink and he cannot live on that. He only makes enough to cover his own cannabis use. He smokes about twice per day, using a bong, he has knee pain and uses about 4 to 5 grams per day.
Police discovered from reviewing the defendant’s telephone log that there approximately 40 different numbers of persons with whom the defendant sent and received text messages relating to the sale of cannabis, and in total police located in excess of 1500 drug related text messages. A number of messages organised the sale by the defendant of cannabis in $25 or $50 amounts. There were also a number of messages organising the sale of cannabis in quarter ounce amounts of $90, half ounce amounts for $150 and full ounces for approximately $280. The Crown however accepts the defendant’s admissions that he sold cannabis daily, receiving approximately $150 per day. For a period of 12 months that would involve him in receiving approximately $54,750. It is further alleged by the Crown that in the 12 months between January 2017 and January 2018 the defendant sold cannabis in a number of quantities but not at the same rate. That is not disputed by the defendant.
Mr French was aged between 41 and 43 in the period of offending. He is a man of no relevant prior convictions. He pleaded guilty at a very early stage. He made full and frank admissions to police before that, over and above matters that were already known to the police. He has provided a doctor’s report which certifies that he suffers chronic pain from a knee injury, that he cannot afford medical cannabis, that he uses cannabis for pain relief, and that he is not an addict. The knee injury he suffered was some eight years ago and he has not worked since as a result. He is in receipt of a disability pension. He has not been enriched beyond funding his own use as a result of selling cannabis.
It may sometimes be thought that lenience is warranted given the nature of the drug cannabis as compared to other illegal drugs. That was said by Justice Wood in Sweetman v State of Tasmania [2016] TASCCA 5 at [13]. In the past some people have regarded cannabis as a “soft drug” and not seen it as particularly harmful or potentially dangerous to the user. However, it is now well known that cannabis has a range of destructive effects on physical and mental health of users particularly young people. Previously held views or assumptions about recreational cannabis use are completely at odds with well-established empirical evidence and knowledge about the adverse effects of the drug, and its association with serious short term and long term harm.
In R v Nguyen [2006] NSWCCA 389, McClellan CJ at CL at [54] referred to previously held assumptions about cannabis and stated, “It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons”.
A sentencing judge’s evaluation of the seriousness of offending cannot reflect out-dated views or complacency which may persist in the community about the impact of cannabis use. Cannabis is a proscribed drug, and it has been proscribed because it has harmful consequences, and trafficking in proscribed drugs is a serious criminal offence.
The legal medical use of cannabis has been, and is being, increasingly made available. It is only within that regime that the drug can be legally used for pain relief. And of course offenders like the defendant, who traffic in cannabis to others to any extent, commit a serious crime and can usually expect a sentence of imprisonment.
However, as noted by Blow CJ in Director of Public Prosecutions (Acting) v Hawkins [2015] TASCCA 8 at [13], a suspended sentence involves a denunciation of an offender’s conduct, and should provide an offender with a strong incentive not to re-offend. It is of course always highly likely that a suspended sentence will be fully activated if re-offending occurs, and the defendant in this case must understand that, and cease his cannabis use or risk imprisonment.
In terms of denunciation, a suspended sentence of imprisonment publicly condemns and stigmatises the criminal conduct, marking it as sufficiently serious as to warrant imprisonment, and in some cases, lengthy imprisonment.
In the present case, in my view, a wholly suspended sentence of imprisonment will accommodate the nature and extent of the criminal conduct as well as the need for general deterrence. Personal deterrence and denunciation are not at the forefront as sentencing considerations in this case, in view of the defendant’s prior record, his cooperation with police and his plea of guilty.
The defendant is convicted on his pleas of guilty in respect of each charge and is sentenced to a single sentence of nine months’ imprisonment which sentence I wholly suspend on condition that he commit no offence punishable by imprisonment for a period of two years.
The Crown makes application pursuant to s 11(1)(b) of the Crime (Confiscation of Profits) Act 1993, for an order pursuant to s 21 of that Act that the defendant pay a pecuniary penalty of $54,750 to the State of Tasmania, and I make that order.
The Crown makes application pursuant to s 38 of the Misuse of Drugs Act 2001 that the items on Property Seizure Record (Receipt) 153577 be forfeited to the State of Tasmania, and I make that order.