STATE OF TASMANIA v JACUM EDWARD HOPE 1 AUGUST 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Hope, you have pleaded guilty to one count of trafficking in methamphetamine and one count of trafficking in cannabis. You are also facing some consequential applications, namely an application for breach of a suspended sentence and an application for a pecuniary penalty order.
These crimes were committed by you contemporaneously in the course of you conducting a drug trafficking business between 15 April 2019 and 1 November 2021. Although it went on for a relatively substantial period of time, it is a reasonable assessment of your trafficking activity that this was a relatively low level and unsophisticated operation involving you selling small quantities of methyl amphetamine and cannabis to a customer base of approximately 80 people. You conducted this trafficking business in company with two other people. The prosecution evidence against you is largely based on the results of some searches that occurred in late 2021. At that time, police found you in possession of small quantities of those drugs as well as some drug related paraphernalia. The contents of your mobile telephone also showed drug related communications with customers and your co-accused. It can be accepted that the trafficking was at a relatively low level because the agreed factual position is that during the whole of the period, you arranged sales of methyl amphetamine to a total value of approximately $20,000. You were selling in deal sizes varying between .1 and .5 grams of methylamphetamine, and between 14 grams and 28 grams of cannabis. Your conduct of this drug selling business was closely linked to your own difficulties with these substances. The business provided you with some funds to acquire drugs for yourself and there is no suggestion that you acquired any significant assets as a consequence of your criminal activity.
You were aged between 22 and 25 when you committed these crimes. You are now 27. As noted, you have had a significant problem with the use of illicit drugs for some time. The problem seems to relate to broader difficulties associated with your mental health. Your past criminal offending commenced when you were 18 years of age. Your record largely consists of driving offences. You have not previously been convicted of drug related offences, other than some matters under the Road Safety (Alcohol and Drugs) Act. On 10 August 2020, while you were conducting this drug trafficking business, you were sentenced by a magistrate to six weeks’ imprisonment, which was wholly suspended for a period of 12 months. The sentence was imposed for a number of offences which included some burglaries, bail offences and serious driving offences. During the sentencing hearing the facts of the burglaries were stated. Those facts indicate that you committed those offences most likely to supplement the funds available to you for the purchase of illicit drugs. The prosecution has applied to have you dealt with for the breach of this suspended sentence.
The prosecution has also applied for a pecuniary penalty order to be imposed upon you, pursuant to s 11(1)(b) of the Crime (Confiscation of Profits) Act 1993.
In dealing with the application for a pecuniary penalty order, the fundamental proposition is that the Court has a discretion as to whether to conduct an assessment of the value of the benefits derived by you from the commission of the offence and a similar discretion as to whether to make a pecuniary penalty order. If I decide to make an assessment and an order, then there is no discretion in relation to quantum, the order must be in the sum assessed. In this case, it is agreed that sum is $20,000.
A matter relevant to the exercise of the discretion with respect to whether or not an order is made is your financial circumstances and whether there is any realistic prospect of you ever being able to pay the penalty, or even a portion of it. This is not intended to be a nicely judged exercise, but is simply a question of the Court making a general assessment as to whether you have now, or will into the future, have the capacity to pay the order. In this case, I am satisfied that I should make the relevant assessment and the relevant order. There is no question that you were deliberately operating this business with the intention of obtaining profits. The business involved the dissemination of illegal and harmful drugs. The amount in question is relatively modest. You are currently in employment and there is every reason to think that you will, over time, acquire sufficient funds to meet this payment. There is no good reason why you should not be required to forfeit the proceeds acquired by you from this business. A further consideration is that the order, if made, will be taken into account in the exercise of the overall sentencing discretion. In this sense, the order will contribute to the overall punitive effect of the sentencing orders made. This may be particularly significant in your case as your counsel submits that I should make orders which place emphasis upon your rehabilitation. If I accede to this submission, then the pecuniary penalty order serves the purpose of potentially balancing any leniency involved in a rehabilitative option with actual punishment.
The Act also provides that the Court may determine a pecuniary penalty application before proceeding to sentence. The reasoning behind this is undoubtedly to allow the order to be taken into account when formulating sentence. Having regard to all of those factors, I assess the value of the commercial benefits derived by you from the commission of the offences at $20,000. I am satisfied I should exercise my discretion to make the pecuniary penalty order and I do so. I order that you pay to the State of Tasmania a pecuniary penalty in the sum of $20,000.
Turning now to consider sentence, there is no question that any form of drug trafficking at any level is a serious crime and, in normal circumstances, attracts an inevitable sentence of actual imprisonment. That reflects the objective seriousness of the crime and the harmful consequences of distributing illegal drugs throughout the community. In your case, however, I am satisfied that there are also significant reasons why emphasis needs to be placed on your rehabilitation. I have been provided with evidence which suggests you have made a decision and commitment to turning your life around, including now abstaining from illicit drug use. I have had regard to the steps you have undertaken in respect to counselling. I have also put some weight on the contents of your employer’s letter, the fact that you sought out employment, and when offered the opportunity for employment, have proven yourself to be a reliable worker. I am prepared to give you a chance to make good the steps towards improving your life that you have already commenced to undertake, and impose a sentence that sees you avoid serving an actual period of imprisonment.
The considerations that I have just enunciated also apply to my consideration of whether or not I should activate the period of suspended imprisonment. The starting point, of course, is that I am required to activate that sentence unless I am of the opinion that it would be unjust to do so. The valid point is made by the prosecutor that the suspended sentence was imposed whilst you were committing these crimes, and you acted in blatant defiance of the conditions of the suspension by continuing with your drug trafficking business. I note that, but I also take into account that sometimes it can take a period of time for the impact of a suspended sentence to be realised. I think that is so in your case. Your arrest on the drug trafficking, combined with the operation of the suspended sentence, has now motivated you to take stock of your life and make the positive changes I have referenced. In those circumstances and having regard to the overall desirability of encouraging your rehabilitation, I determine that it would be unjust to activate the previously imposed period of suspended imprisonment. I will exercise my power under s 27 (4E) of the Sentencing Act and impose an alternate sentence.
In respect of the sentence for the crimes of trafficking, I think the appropriate order is a wholly suspended period of imprisonment. I also intend to impose community supervision.
I make the following orders: you are convicted of the crimes to which you have pleaded guilty. You are sentenced globally in respect to those crimes to a term of 16 months’ imprisonment. The whole of that sentence will be suspended for a period of two years on the following conditions: firstly, you are not to commit another offence punishable by imprisonment during that two year period, and secondly, you will be subject to the supervision of a probation officer, you must comply with the conditions of this supervision order for a period of 18 months. I note that the statutory conditions referred to in s 24 (5B) of the Sentencing Act apply to this condition. I copy of those conditions will be provided to you, in writing. In addition to those core conditions, I order the following special conditions:
- You must, during the operation period of the order, attend educational or other programs as directed by the Court or a probation officer;
- Submit to the supervision of a probation officer as required by the probation officer;
- Undergo assessment and treatment for drug dependency as directed by a probation officer;
- You must submit to testing for drug use as directed by a probation officer;
- Undergo assessment and treatment for alcohol dependency as directed by a probation officer;
- Submit to testing for alcohol use as directed by a probation officer;
- Submit to medical, psychological, or psychiatric assessment or treatment as directed by a probation officer; and
- If directed to do so, attend, participate in and complete the EQUPS addiction program.
In respect to the application for breach of suspended sentence pursuant to s 27 (4E)(b) of the Sentencing Act, I order that a substituted sentence take effect in place of the suspended sentence. You are to perform 63 hours of community service. You will have 18 months within which to complete those hours. I order that you must comply with the reasonable directions of the probation officer or supervisor, and that you must report to community corrections at Burnie by close of business tomorrow.