STATE OF TASMANIA v LUKE CHARLES HOWLETT 5 JUNE 2023
COMMENTS ON PASSING SENTENCE PEARCE J
Luke Howlett, you plead guilty to trafficking in a controlled substance, dealing with property suspected of being proceeds of crime and possessing a prohibited firearm without the appropriate licence. I also agreed to deal with your plea of guilty to a number of related summary charges: possessing ammunition without a licence, possessing a loaded firearm in public, possessing dangerous articles in a public place, evading police, driving with an illicit drug in your oral fluid and two counts of speeding.
At about 9.25 am on Thursday 11 March 2021 police officers driving on Pateena Road saw you drive past them going north. The speed limit on that section of road was 70 kph but your speed was measured at 99 kph. They turned and followed but when they signalled to you with lights and siren to pull over you sped away along Meander Valley Road. You drove erratically, overtaking other cars and at speeds well in excess of 100 kph. The police backed off but you sped through road works and then were seen by officers in a different vehicle. You were driving west on Meander Valley Road at 171 kph where the limit was 100 kph. You were next spotted in Bracknell parked in the middle of the street with the engine running. When road spikes were laid to attempt to prevent your escape you reversed away at speed. Your car was found not far away about 15 minutes later on a grass verge, unoccupied and with the drivers’ door open. There was a large machete on the front passenger seat and knuckle dusters and a pocket knife elsewhere in the car. You were found hiding in a nearby paddock. Your backpack was where you had discarded it in a hedge about 20 metres from the car.
A sample of your oral fluid was taken. Later analysis disclosed the presence of methylamphetamine and amphetamine. The contents of your backpack included a .22 calibre silver revolver loaded to its capacity of seven rounds with a further three rounds concealed in the handle, $5,780 in cash, mostly in $50 notes, two cryovac bags each containing about an ounce of dimethyl sulphone, a cutting agent, and five bags each containing about an ounce of methylamphetamine. The methylamphetamine was all of about 70% purity. The backpack also contained 27 oxymetholone tablets, an anabolic steroid, and 49 tablets bearing the appearance of Xanax, which is alprazolam. The Xanax tablets were analysed and found to be counterfeit. They were in fact clonazolam, which is also a benzodiazepine and a controlled substance. Because the barrel of the revolver was 40 mm in length it was a prohibited firearm within the meaning of that term in the Firearms Act. You admit also that it was, like the cash in the backpack, proceeds of crime.
It is accepted that you possessed the tablets to use yourself rather than sell. However the methylamphetamine in your possession was intended for sale. If sold in ounce quantities as found, it was worth at the time between $75,000 and $100,000. If sold in point quantities it could have returned between $250,000 and $300,000, and even more if it had been cut with the agent which was also in your backpack.
Your house was searched on the day of your arrest. The police found a total of seven shotgun cartridges which were wrapped and hidden, and one .38 calibre round.
You are now aged 35. In your adult life you have shown that you are able to hold stable employment. You were employed in Tasmania between 2016 and 2021. As a child you were the victim of serious physical and mental abuse. This led to problems with mental health and to long term abuse of illicit drugs. You have no prior convictions for trafficking but you have a record for some drug and firearm offences. In 2012 you were fined for possessing dangerous drugs. In 2014 you appeared in the summary court in Darwin and were fined for possession of cocaine and methylamphetamine. Later the same year you were fined in NSW for possessing a prohibited drug. In Tasmania your record commences in 2018 with a family violence assault. On 18 August 2022 you were sentenced by a magistrate to imprisonment for about 10½ months from 1 October 2021 for a considerable number of offences. All but one of those offences post-date the offences for which I am to sentence you and so they are not prior convictions for sentencing purposes. In January 2021 you assaulted your partner by punching her. You committed further assaults during the course of 2021 and then numerous breaches of conditions of bail and family violence orders. Amongst the offences for which you were sentenced were, on 25 April 2021 possessing methylamphetamine, on 30 July 2021 possessing two rifles and ammunition without a licence, on 10 August 2021 evading police in aggravated circumstances and on 18 October 2021 again possessing ammunition and controlled drugs. By the time you were sentenced in August 2022 you had served all or mostly all of that sentenced and you were released subject to a community corrections order. The time you spent in custody is relevant to totality but most of the offences for which that term was imposed are of a different nature.
In the course of the sentencing hearing it was asserted on your behalf that the drugs in your possession were given to you by another person who required you, by threat of serious violence, to sell them to clear your drug debt. I indicated that I was not prepared to sentence you on that basis unless satisfied by evidence that it was appropriate to do so, whereupon counsel for the State also disputed those facts.
Your account given in evidence was slightly different. When examined and cross-examined the following version emerged. You stopped using drugs in 2015 but in mid-2020 you relapsed. Initially your use was occasional but quickly escalated to daily use of Ice up to two or three grams per week. The drugs came from a single supplier who you did not name. While you were still working you paid between $500 and $600 each week for what you thought was “a few grams”. At some point, probably about August or September 2020, your dealer told you that, unknown to you at that time, that prices had gone up what you had paid did not cover the costs of supply. You were told that you owed between $5,000 and $10,000. You withdrew $10,000 from a superannuation account and paid $7,000 of it to the dealer. You were not sure whether it cleared the debt but the payment was enough so the dealer would continue to supply you. You ran up more debt. Your employment concluded in late December 2020 but, even then, despite your lack of income, you continued use the same amount of Ice and purchased on credit. You were not asked to pay anything until in March 2021. You were told by your dealer that you owed around $20,000, even though you did not believe that figure. You cannot recall keeping any sort of tally yourself of how much you owed.
You claimed that the drugs found in your possession on 11 March 2021 were given to you by the dealer on the previous evening. Once, a couple of weeks earlier, you were asked to hold drugs but when you refused the dealer assaulted you. This time you were told that unless you agreed you would have your legs broken. Threats of harm to your partner were also made. You were told to “hang on to” the drugs until you were notified that they were to be collected, and if you did that it would “clear your debt.”
When cross examined you claimed that when you questioned the debt with your dealer you were “assaulted for it.” You agreed that you knew that the bags you were given contained drugs but claimed to not know that some was cutting agent. The revolver was, according to you, given to you “for protection” by the same person who gave you the drugs. The cash in the bag was, you claimed, not related to the drugs or sales of drugs but was your and your partner’s savings which you kept with you rather than in the bank, and part of it came from a “pokies win”. You said that when you were approached you were not on the way to sell or give the drugs to anyone. You still had them from having been given them the night before. You agreed that despite the drugs having been seized and the apparently continuing drug debt you have not seen or heard from the supplier since. You have, you claim, received threats “for your life, third hand through other people” and that you were hiding when not in custody.
If accepted, the facts you claim to be true may involve a lesser degree of criminal culpability. Generally speaking, it is less serious to, faced with threats of violence, temporarily hold drugs believing they were going to be sold by others than it is to possess drugs intending to sell yourself for personal profit. The issue arises whether it is for the prosecution to prove the latter beyond reasonable doubt or for you to prove the former on the balance of probabilities. In this case it matters not because I am satisfied that the scenario you claim is so implausible that it can be dismissed as a reasonable possibility. I do not accept the truth of your evidence. Even allowing for the possibility that your judgment and actions were heavily impaired by the effects of addiction, I regard your evidence about how your drug debt came to accumulate as highly unlikely. How simply holding drugs temporarily would clear a $20,000 debt is not explained. Why such a request would be made at all is difficult to fathom. Added to that, it makes no sense that a person who is threatening to break your legs unless you comply with a request to keep custody of drugs would give you a loaded handgun for protection. Nor is there any rational explanation for you needing protection if all that you are required to do is keep drugs in a backpack and give them back when asked. Putting aside for amount that it is inconsistent with your plea, I regard your claim that the cash you were carrying around was savings partly consisting of a poker machine win as an obvious falsehood. In my view the only plausible explanation for all of the circumstances is that you had the drugs to sell yourself and that the handgun and the machete were accoutrements of your trafficking and the cash was part of the proceeds.
This is not an early plea of guilty. You were apprehended more than two years ago. It was submitted on your behalf that you could not determine your plea until forensic analysis of the drugs and notification of the weights. That submission carries no force at all, especially because you knew you had methylamphetamine and when it is so obvious that the drug had had already been weighed for sale. The late plea and the offences which you subsequently committed indicate an absence of remorse. One result of the delay however is that although you are to be sentenced again for evading police you will have been sentenced for each offence as a first offender.
You told the police that you sought to evade them because you were anxious. There is no evidence of any link between an anxiety condition and that offence, but it is hard to see in any event how your conduct could be explained by anything other than a wish to avoid apprehension. Panic resulting from fear of being caught with a significant quantity of drugs in your possession is not mitigating. It was also submitted on your behalf that you want to remove yourself from the drug community and undertake a residential rehabilitation program. You claim to have remained drug free following your release from prison until you relapsed early this year. I do not see that those submissions carry much weight either. On the information given to me, the only attempts you have made to obtain treatment or assistance with rehabilitation in the two years since you were arrested for these offences have been as this sentencing hearing approached.
As has been stated on many occasions, those who choose to traffic in drugs must expect punishment. Methylamphetamine in particular is a drug which causes great harm to individuals and the community, both directly and indirectly. Those who may be inclined to engage in the sale of illicit drugs for profit must balance the chance of high returns with knowledge that apprehension and conviction will result in severe sentences. I would accept that your use of Ice contributed to your offending and that one motivator for trafficking was to fund your personal use. However you had a considerable quantity in your possession. I was asked to consider making a drug treatment order. Such an order gives priority to the possibility of your rehabilitation in favour of the other sentencing aims I have outlined. I have decided not to undertake an assessment because, even if you were found to be suitable, the quantity of drugs found in your possession, combined with the overall criminality involved in your offending, makes this case so serious that a drug treatment order is not an appropriate sentence. I regard punishment and general deterrence to be the predominant sentencing factors. A term of imprisonment is required. You have no prior convictions for trafficking. As an incentive to reform I will suspend part of the sentence.
I must impose a separate sentence for evading police. In my view this example requires a term of imprisonment. The maximum term I may impose is, in your case, three years which is an indication of how seriously conduct of this nature is taken by the Parliament. The manner in which you tried to evade the police carried with it, in terms of your speed and manner of driving, considerable actual and potential risk to other members of the public. The risk was exacerbated by the fact that you had illicit drugs in your blood, which was the statutory aggravating feature. I must disqualify you from driving for a period of not less than two years. I take into account that you are already disqualified for two years from 18 August 2022 but you will be in custody for some of that period. You are also to be sentenced for driving with an illicit drug in your oral fluid but you are not to be punished twice for the same conduct. The same applies to the speeding charge. It is an excessive speeding offence but also formed part of the circumstances of evading police.
Because you will be punished and disqualified from driving for a lengthy period for other offences I find that to be a special reason in accordance with the Vehicle and Traffic Act 1999, ss 19A(2) and 21(5), for not imposing the fine and demerit points respectively required by those sections for the speeding offences. The possess ammunition charges are punishable by fine only. In light of the other orders I will make I do not intend to impose any fine. Counts 1, 7 and 10 on complaint 31429/21 are taken up by the indictment.
I order as follows:
- pursuant to the Misuse of Drugs Act, s 36B, I assess the reasonable expense of and attending the analysis and examination of the controlled substance as $8515 and award that sum against you as part of the costs of the prosecutor. I may only give you 28 days to pay that sum but you may enter into a repayment arrangement;
- I am satisfied that the sum of $5,780 seized on 11 March 2021 is tainted property as the proceeds of drug sales and that no hardship will result from its forfeiture. I order pursuant to the Crime (Confiscation of Profits) Act 1993, s 16(1), that the money is forfeited to the State;
- the machete, the knuckledusters and the knife seized on 11 March 2021 are forfeited to the State;
- on complaint 31430/21, counts 1 and 2, the speeding charges, you are convicted. In light of the other sentences I will impose, and for the reasons I have explained, I make no other order on those counts;
- on complaint 31429/21, counts 4 and 5, possessing ammunition, you are convicted. On those counts I make no further order;
- on complaint 31429/21, count 9, evading police, you are convicted. You are sentenced to a term of imprisonment of three months from 29 May 2023, the day you were remanded in custody. I order that you not be eligible for parole for that sentence. You are disqualified from driving for two years from your release from custody. Any driver licence you have is cancelled;
- for all other counts, namely each count on the indictment, complaint 31429/21, counts 2, 3, 6 and 8, and complaint 31430/21 count 3 I impose one sentence. You are disqualified from driving for 18 months also to commence on your release from custody. You are sentenced to imprisonment for 21 months cumulative to the three month term just imposed. Six months of that term is suspended for 18 months from your release. There will be conditions of that order that:
- you are not to commit another offence punishable by imprisonment during that period. If you breach that condition you will be required to serve the term unless that is unjust.
- during the 18 month period the order is in place you will subject to the supervision of a Community Corrections officer. The conditions referred to in s 24(5B) of the Sentencing Act apply to this condition and will be set out in the order you will be given. These include that you must report to a Community Corrections officer within three clear days of your release, you must submit to supervision and comply with the directions given by of your probation officer, you must not leave Tasmania without permission and that you notify of any change of address.
- in addition to the core conditions, the order will also include the following special conditions that you must, during the operational period of the order:
- submit to the supervision of a Community Corrections officer as required by that officer;
- attend educational and other programs, undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer. undergo assessment and treatment for drug dependency as directed by a Community Corrections officer;
- attend and complete the EQUIPS addition program as directed by a Community Corrections officer.
- I order that you will not be eligible for parole until you have served half of the 15 month operative part of that term.
In accordance with the Sentencing Act, s 92A, I specify that the total term you are liable to serve is two years from 29 May 2023. Six months of that total term is suspended. You are not eligible for parole until you have served 10½ months of the total operative term of 18 months.