TASMANIA v DAVID JOHNATHAN HOLMYARD 29 NOVEMBER 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Holmyard, the defendant, has pleaded guilty to one count of trafficking in a controlled substance, namely methylamphetamine, and to one count of dealing with the proceeds of crime, both offences having been committed on 3 May 2021. I am also dealing with his pleas of guilty to summary offences of possessing a firearm and possessing ammunition when not the holder of the appropriate licence, possessing a controlled drug namely methylamphetamine, possessing a controlled drug namely cocaine, possessing a controlled drug namely testosterone and possessing a thing for the administration of a controlled drug – a glass smoking device. These charges arose out of the search of the defendant’s home on 3 May 2021. In a basement area police found a large quantity of methylamphetamine, later established to be 48.1 grams at 75.2% weight concentration. That was secreted between the basement toilet and a rumpus room. A set of scales and a quantity of snap lock bags were also found. Within the rumpus room itself police found within a gumboot a snap lock bag containing 39.7 grams of methylamphetamine and caffeine at 6.9% methylamphetamine weight concentration. Also within a gumboot, was a snap lock bag containing 1.1 grams of cocaine. Further, a set of drawers in the master bedroom was found to contain a .22 calibre pistol and magazine containing several rounds. Two vials of testosterone were found on the mantelpiece, and loose bundles of cash and loose cash were found in two locations as well as in a wallet. The total cash amount was $19,925.00. This is said to the proceeds of crime and is the subject of count 2. The defendant was arrested but declined to say anything when interviewed. The firearm was later examined and shown to be in working order. The detachable magazine was designed to hold ten rounds. The Crown case is that the defendant is guilty of trafficking by possessing the larger quantity of methylamphetamine with the intention that at least some of it would be sold. The facts would suggest a fair proportion. The value of 48.1 grams is about $27,500.00, if sold by the ounce, $48,000.00 if sold by the gram or between $72,000.00 and $96,000.00 if sold by a 0.1 gram deal. The value of the 39.7 grams at low weight concentration is about $1,500.
The defendant is now age 32. He is a single man with no dependants. He appears to have had a stable upbringing and completed education to year 12 level. He immediately found fulltime employment in a bakery and completed an apprenticeship with that employer, before moving to a different employer where he stayed until November 2014. At that time he was involved in a serious motor vehicle accident as a result of which he was charged with, and pleaded guilty to, manslaughter. In February 2016 he was sentenced to six years’ imprisonment backdated to 26 November 2015, with a non-parole period of 4 years. He was granted parole in November 2019 but was returned to custody on the day of this offending. His earliest release date is 3 February 2023, with a latest release date 3 May 2023. He therefore has between about 14 and 17 months yet to serve, ignoring any further parole. I was told that after his release on parole he went to live in the premises the subject of the search. He tried to get work but largely in vain. He did not want to be reliant on benefits, and found work cutting firewood. As he was disqualified for 5 years’ from his release from prison, he was reliant on others driving him to and from the areas where he worked. This caused great difficulties for him. The use of taxis was not viable. He then decided to set up a home maintenance and gardening business and to employ someone to drive him. He needed a capital sum to put this plan into effect, and made the regrettable decision to involve himself in selling methylamphetamine for that purpose. He obviously acquired an amount and had sold quite a bit. I was told this acquisition and sale was to be a once only endeavour. Counsel confirmed the money seized was the proceeds from his sale activities in a two month period. It was put that he sold only to people known to him as users, did not introduce anybody to the drug and certainly none was sold to young people. I was told the defendant acquired the pistol for self-defence purposes, apparently seeing it as common knowledge that violence was part of the trade in which he was engaged. I accept that the quantity of diluted methylamphetamine and the small amounts of cocaine and testosterone were for his personal use. In terms of the trafficking, the defendant is to be punished for possession with intention to sell, but past sales can be taken into account in the sense it cannot be said this was an imminent venture only, and of course there is the count of dealing in; that is, the possession of, the proceeds of crime. The Firearms Act offences are of themselves of some seriousness. The concealable weapon and ammunition were unlawfully possessed as part of the trafficking operation. I take into account that the defendant has no recorded history of drug offending or of firearms offences. I also take into account his plea of guilty which has utilitarian value, and that he does not oppose the forfeiture of the money seized. I take into account the period the defendant was on parole without any recorded offending before this matter, and the period he is liable to be in custody in relation to the earlier sentence as I have outlined. I must make any term of imprisonment cumulative to the present sentence unless special circumstances exist. None were suggested and I do not see any.
Mr Holmyard, I have set out the facts and the relevant circumstances. As I am sure you are aware, methylamphetamine is a highly addictive substance that causes much harm to individuals and to the community generally. It is a source of great ongoing concern. In its various forms, its use and trade generates a great deal of other criminal activity, especially serious crimes of violence and dishonesty. As has been made clear in the past, people who set out to make money from dealing and exploiting others should expect to go to prison for long periods. It has not been suggested that you were a user in the grip of an addiction, desperate to fund supplies. This was a calculated enterprise designed to return a profit so you could establish a business. It makes things worse for you that you were on parole when you offended. To engage in drug trafficking to resolve your difficulties was a very unfortunate and poor decision. You have no prior convictions for any drug offences but apart from your guilty plea and the question of the total overall period of potential imprisonment, there is no reason for any leniency. On the other side, there is of course the aggravating factor that you were on parole. You are convicted of all matters, and sentence to two years’ imprisonment to be served cumulatively to the sentence presently being served. However, I think it appropriate to give you the opportunity of parole, and order that you not be eligible for parole until you have served one half; that is, 12 months. I order the forfeiture of the $19,925 and of the glass smoking device.