STATE OF TASMANIA v LANCE WILLIAM GAYFORD 26 OCTOBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Lance Gayford, the defendant, has been found guilty by a jury of trafficking in a controlled substance, cannabis, and not guilty of cultivating a controlled plant for sale but guilty of cultivating a controlled plant. I am also dealing with his pleas of guilty to summary offences of using a controlled plant, and two charges of possessing a thing used for the administration of a controlled drug, namely a glass “ice pipe” and three “bongs”. In relation to the trafficking charge, the prosecution did not allege any past sales in fact, but relied on the presumption of the intention to sell that arose from the possession of more than one kilogram; the trafficable quantity of cannabis. The charges arose out of a search of the defendant’s home near Mathinna on 6 April 2022. In various locations, police found harvested and drying cannabis and a small quantity that had been cut and put into seven snap lock bags. All of this cannabis was the subject of the trafficking charge. When weighed shortly before the trial the amount of this cannabis was about 10.5 kilograms. Police also found a total of 56 plants; that included 12 seedlings and two rock balls. The total usable cannabis was estimated to be in the order of nearly 15 kilograms. I note that in relation to the trafficking charge, according to the evidence, the total dried weight amount when sold in one pound lots, has a value of between $31,500 and $44,100. The defendant fully cooperated during the search and when interviewed, admitted the cultivation and preparation of the harvested cannabis, but explained that he was a heavy user and the cannabis was for his own use. I am not satisfied beyond reasonable doubt that the defendant’s primary motivation was the pursuit of profit, or that he intended all of the harvested cannabis be sold. I am satisfied it is likely that he was a very heavy user of cannabis, and I proceed on the basis that only some of the cannabis was to be sold within the extended meaning of that word in the Misuse of Drugs Act. As to the verdicts, it is perhaps of no great consequence but the jury may have taken the view that the defendant had not discharged his burden in relation to the harvested amounts, but had in relation to the to the future yield from the plants.
The defendant is now 43 years old. He had a most unfortunate and disadvantaged upbringing. He was born in New South Wales and at the age of three he was placed in State care, as were his three siblings. This resulted from physical and sexual abuse of him and his siblings by their biological father within the home. He went back to the family home after a year or so, but was returned to foster care at the age of nine. After a year, he returned home again but when about 14 or 15 he left both school and home and started to live on the streets. Drug use and addiction followed. He was introduced to methylamphetamine by his older sister and it has been a constant in his life until recently. I will return to this point. As an almost inevitable part of his nomadic life style and drug use, offending followed. He has moved from State to State and has convictions in several jurisdictions. His record in New South Wales starts in 1995 and goes through to 2012. It involves drug offences and offences of dishonesty. He served some terms of imprisonment. He came to Tasmania in 2002 and was here to about 2007. In that time, he was convicted of a summary assault and later in February 2007, a criminal assault which attracted a sentence of six months’ imprisonment. He also committed dishonesty and drug offences, for which he was imprisoned at times. The defendant has a record in Western Australia starting in 2010 with some drug offending prominent. In December 2013 he was convicted of manufacturing a prohibited drug and possessing a prohibited drug with intent to sell or supply and sentenced to a total period of two and half years’ imprisonment. I was told that the relevant conduct amounted to a small scale endeavour to provide himself and a friend with methylamphetamine. There is also a record of offending in Victoria commencing in 2019, with a similar pattern of drug and dishonesty offences. He came back to Tasmania in about 2020. He was dealt with in July 2022 for drug and driving offences but which were committed in the period 2006 to 2012. He was fined for those matters. Apart from two traffic infringement notices both of which gave rise to his disqualification, he has no recorded history of offending since being back in the State.
The defendant’s primary purpose for moving back to Tasmania was to live with his mother and provide care for her. He is now formally her carer and receives a carer’s pension. He presently has casual work for two days a week at a nearby farm. I was told that after his return to Tasmania he stopped using methylamphetamine, and his circumstances are now very far removed from what had been his situation for the majority of his adult life. He is in a stable relationship and, based on eight letters from members of his community including his employer, he is valued as a contributing member of that community, often helping others for no reward. He and his partner are expecting a child; she is five months into her pregnancy. The defendant’s very heavy cannabis use is explained on the basis that he has been using this as a substitute, in effect, for methylamphetamine. That is, he found it of assistance in managing his withdrawal from that drug and stopping its use. It was common ground that the “ice pipe” that was found was not used by the defendant for its evident purpose. I have a letter from the defendant addressed to me, spontaneously written I am told, in which he speaks of his healthy and happy relationship and of his good friends in the community, all of whom engage in a totally different lifestyle to the one he previously had. He also speaks of his fears of being in gaol and of falling back into the past pattern of hard drug addiction, with the type of associates that brings with it. He also speaks of the hard work he feels he has done in order to rid himself of his addiction. Generally, he says he is a different person and a much more productive member of the community.
Parliament has made cannabis a controlled plant and hence a controlled substance; the growing, possession and use of which is illegal. Actual and intended commercial dealings are prohibited and must be viewed as serious crimes. Factors of denunciation and general deterrence are important. Sometimes, deterring the individual from further offending is also important. Trafficking in controlled substances almost invariably leads to sentences of imprisonment, although suspension of the execution of the whole of these sentences is often appropriate depending on the circumstances of the particular case. On the face of things in this case and viewed in isolation this offending would, given the defendant’s record of offending, ordinarily attract an immediate prison term of some length. However, I am persuaded that there is sufficient in the defendant’s personal history and in what has occurred since returning to Tasmania, leaving aside the present offences, to justify some leniency and to afford the opportunity to avoid immediate incarceration. The law recognises that drug addiction is a relevant subjective circumstance where it is attributable to such things as seriously adverse personal circumstances, vulnerability and addiction at a young age. In this case, there is an indirect connection between such an addiction to methylamphetamine and the use of cannabis, which is primarily at the heart of the present offending. I also accept the proposition that prison with its corrosive environment may undo much, if not all, of the good that the defendant has achieved with his rehabilitation.
Mr Gayford, I have broadly set out some of the relevant considerations. As I have indicated, I have formed the view that it is appropriate to grant you some leniency. There will be a term of imprisonment but the execution of that will be wholly suspended, and it will be suspended not only on the usual condition relating to commission of offences punishable by imprisonment but on condition that you perform community service, so this will come at a cost. I think you may be assured this is the last chance you get. You are convicted of all offences and sentenced to 15 months’ imprisonment, the whole of which is suspended on conditions that you do not commit any offence punishable by imprisonment for a period of two years, and that you perform 175 hours of community service within a two year period. You will have to report to a probation officer at 111 Cameron Street by 5.00pm tomorrow. I order the forfeiture of all items on Tasmania Police property receipt no 310595, and items 7, 16, 17 and 20 on drug exhibit sheet number 270604 which is trial exhibit P3.
Mr Gayford, I need to provide you with an explanation and a warning. The sentence of imprisonment has been suspended on two conditions. The first applies as a matter of a law and it is that you not commit any offence punishable by imprisonment for that period of two years. That means what it says. It refers to any offence punishable by imprisonment, and I would point out to you that possession of cannabis is an offence punishable by imprisonment. The second condition is that you must perform the number of hours within the two year period. Your failure to do so will also be a breach of a condition of suspension. In the case of a breach of either condition, you can be brought back to the Court, and the law is that a judge must activate that suspended sentence unless it is unjust to do so. You will need to bear that in mind.