STATE OF TASMANIA v WILLIAM MARK HUTCHINSON 22 FEBRUARY 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, William Mark Hutchinson, has pleaded guilty to one count of trafficking in a controlled substance. The indictment covers the period of 5 months from 15 August 2020 to 27 January 2021, and alleges trafficking in methylamphetamine and cannabis with a value of between $12,285 and $52,650, depending on how it was sold.
I have also agreed to deal with a number of charges for summary offences, pursuant to s 385A of the Code. Those charges are on complaint numbers 895/2021, 602/2021, 1747/2021 and 2404/2021.
Each of the summary offences is alleged to have occurred within the period of the indictment and relates to the possession and use of methylamphetamine together with three charges of drive a motor vehicle while a prescribed illicit drug is present in your oral fluid. Each summary offence coincides with the searches of the defendant, and form part of the trafficking allegations.
I have accepted pleas of guilty through counsel to each of those summary offences.
The defendant was born on 25 March 1993. At the time of the offending he was 27 years old.
On Monday 14 December 2020 at approximately 7:45pm Tasmania Police intercepted the defendant’s black Holden Commodore in Colebrook. The defendant was driving and his daughter was seated in the front passenger seat. The defendant submitted to an oral fluid test which returned a positive result for methylamphetamine (complaint 895/2021).
Police requested that the defendant get out of his vehicle and asked whether the defendant was holding anything on him. The defendant indicated he had a “bit of personal”, and presented to police a small plastic bag containing methylamphetamine (gross weight 1.7 grams) and a used glass ice pipe from his trouser pocket (complaint 602/2021 counts 1 and 2).
Police searched the defendant’s vehicle and amongst other things, located the following items $1,850 cash and two snap lock bags contained methylamphetamine with a total weight of 0.16 grams. The defendant was in possession of two mobile phones which were later submitted for forensic examination.
On Saturday 26 December 2020 at approximately 1:30pm, police again intercepted the defendant’s Commodore, travelling towards Campania. He submitted to an oral fluid test which returned a positive result for methylamphetamine (complaint 1747/2021). Under caution the defendant admitted to using amphetamines on the Wednesday before.
Prior to transporting the defendant to Bridgewater Police Station he was searched and police located a small snap lock bag containing methylamphetamine with a weight of 2.3 grams). (complaint 602/2021 count 5)
On 18 January 2021 Tasmania Police executed a drug related search warrant at the defendant’s residence at Colebrook.
Police located a medium snap lock bag containing methylamphetamine with a weight of 13.8 grams and a used broken ice pipe on the laundry floor (complaint 602/2021 counts 8 and 9).
Police conducted a search of the residence and located, amongst other things, a black iPhone, $4,650 in cash, a quantity of small snap lock bags, containing traces of methylamphetamine and a $5 note rolled and taped up with traces of methylamphetamine inside, and a medium snap lock bag containing 3.4 grams of methylamphetamine.
At the conclusion of the search the defendant was arrested. He told police that the day before, 17 January 2021, he used around 7 points of methylamphetamine (complaint 602/2021 count 7).
On Friday 22 January 2021 at approximately 2:35pm, police again intercepted the defendant’s Commodore, at Brighton. The defendant submitted to an oral fluid test which returned a positive result for methylamphetamine (complaint 2404/2021). Police searched the vehicle and located a used ice pipe in the console underneath the stereo (complaint 602/2021 count 4).
The defendant was arrested and transported to the Bridgewater Police Station. Once at the police station he removed a snap lock bag containing methylamphetamine from his anus (1.7 grams gross) (complaint 602/2021 count 3).
On 27 January 2021 police again executed a drug related search warrant at the defendant’s residence at Colebrook. Amongst other things, the following items were located:
- a used ice pipe and snap lock bag containing 0.20 grams methylamphetamine was located on a shelf in the kitchen alcove (complaint 602/2021 count 10); and
- a clear snap lock bag containing 11.9 grams of methylamphetamine was located inside the lounge room light cover attached to the ceiling which the defendant says was not his.
An examination of the defendant mobile phone identified a number of messages in relation to the sale of drugs and also drug related photographs taken, including a photograph of a tick sheet, large amounts of cash and other drug related photographs.
In total the amounts of methylamphetamine seized from the defendant were:
- 14 December 2020 – 1.86 grams
- 26 December 2020 – 2.30 grams
- 18 January 2021 – 17.2 grams
- 22 January 2021 – 1.70 grams
- 27 January 2021 – 12.10 gram.
The total amount of methylamphetamine was 35.16 grams.
Based on the defendant’s mobile phone analysis and his admissions to police, the methylamphetamine is calculated to have had a potential street value of between $12,285 and $52,650, as already noted, depending on how it was sold.
The State makes application pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993 for the forfeiture of $5,150, pursuant to s 16 of the Act. This amount is the sum of $3,300 cash seized on 18 January 2021 and $1,850 seized on 14 December 2020. That order has been made.
The State also made application pursuant to s 38 of the Misuse of Drugs Act 2001 for the forfeiture of:
- Item 1 on property seizure record receipt 202888;
- Item 1 on drug exhibit sheet 266657;
In relation to the on property seizure record from T Nelsen dated 18 January 20202021:
- Items 1, 3, 4, 5, 6, 7, 8; the snap lock bag from items 9, 10, 11; the snap lock bag from item 12, and item 12.
In relation to the on property seizure record 1202021794:
- The sachet from item 1, items 2 and 4, the sachets from item 5 and items 6, 7, 8 and 9.
That order has been made.
Application was also made pursuant to s 36B(2) of the Misuse of Drugs Act 2001, that the defendant pay the costs of analysis of the methylamphetamine seized by police. That order has been made.
The defendant does not have any prior convictions for drug related offending.
There is an oral application to breach two suspended sentences imposed on 30 May 2019. They are each of two months in length, wholly suspended and relate to charges of aggravated burglary, stealing and motor vehicle stealing and for firearm related offences.
The defendant also has prior convictions for traffic and driving offences and relevant prior convictions under the Road Safety (Alcohol & Drugs) Act 1970.
The defendant is 28 years of age. He was born in Hobart and is the oldest of three brothers. His family lived in Clarendon Vale, and from 1999 in Colebrook.
The defendant completed high school at Geilston Bay to year 10 before taking up a four year apprenticeship as a welder, and continued to work as a welder until 2017 when the owner wound the business up and retired. The defendant found other employment which unfortunately ended in January 2020 after an absence from work as a result of injury.
In grade 8 the defendant met his former partner. They formed a relationship which lasted for approximately 10 years. They have three children together, now aged 11 years, 7 years and 5 years respectively. The defendant has had, and continues to have, shared care of the children since the separation.
Following the end of that relationship he met his present, although I understand now estranged partner, and they were married on 14 April, 2018. His wife has three children from a previous relationship and together they have a daughter, born on 15 December 2019. At the time of the plea in mitigation his wife was expecting their second child.
His wife’s pregnancy with their daughter was a difficult one, with the onset of labour occurring at 25 weeks. His wife was admitted to hospital until the baby was born at 31 weeks gestation. Their daughter remained in hospital, in ICU, for 42 days thereafter.
Post-discharge, the defendant’s wife suffered from depression, exacerbated by her father being diagnosed with cancer in January 2020, unfortunately he passed away on 27 March 2021, and also by the death of her mother on 20 February 2020.
She was, on some days, unable to function even to the extent of getting out of bed and the defendant was caring full-time for four children and, when his older children were present, seven children. He was also doing his best to help his wife. He also lost his employment when he returned, as noted, from a week’s leave at the time of his wife’s mother’s funeral.
The defendant became exhausted but needed to function to keep the house running. It was suggested to him that he try amphetamine. It was, in fact, methylamphetamine (Ice), that he was given. He found it gave him the energy to get the daily tasks done and to keep going throughout the day.
Initially the defendant used one point in the morning and a small amount later in the day. Unsurprisingly he found himself, over time, needing to use more to achieve the same energy levels and he became addicted. Prior to this, there was no drug use in his life.
The defendant began purchasing larger amounts as the cost is discounted and began selling cannabis to fund his habit. He reached the stage where he was using one gram or more a day of Ice and getting into debt. He began to sell his assets to pay and then funded the cost by on selling a portion of the methylamphetamine he obtained.
The defendant was in custody from 5 March 2021 until 9 March 2021. On 9 March 2021 he was bailed, with a curfew condition preventing him from leaving his residence between the hours of 7.00pm and 7.00am, and with a condition that between the hours of 7.00am and 7.00pm he not be outside the premises unless in the company of either his mother (his surety) or his father. That bail condition was continued until 26 June 2021, a period of 3 ½ months.
The defendant’s father was at work most days from as early as 4.00am with the result that the defendant rarely left the property during the currency of that bail, twice for medical appointments and to attend Court. His mother was a carer for an NDIS recipient. So the bail amounted, in effect, to house arrest.
The defendant was separated from his family home and his wife and children, in a physical sense during that period. Although they could, and did, visit him, he was significantly limited in his contact with them.
I take all this into account when arriving at sentence.
The defendant played football from the under 8’s through to adulthood, ending in 2020. He played with local clubs such as OHA, Glenorchy, and Woodsdale. I also note he has the ability to return to work in his trade in the future and is also considering taking up an electrical trade.
The defendant through his counsel, Mr Stevens, accepts that the offending is aggravated by the existence of the suspended sentences and the breaches of those sentences. In addition, it is accepted that the ongoing conduct following detection is aggravating.
It is also accepted that it is widely understood that an addiction to illicit drugs is difficult to overcome and that relapse and/or continued use, as well as debts owed to suppliers, are often the catalyst for ongoing offending.
The defendant accepts that illicit drug use is a grave social evil and that general deterrence is a predominant sentencing consideration. However, it is submitted that he was a user of Ice and was selling some of the drugs that he obtained to fund his addiction.
Thus it is said that the defendant was not at the top of the hierarchy of trafficking. It is submitted that he was a “street level” seller. This distinction is of some but not always of great importance in my view. I do note however that the defendant’s actions do not display a wide distribution of drugs or a significant drug distribution network as submitted on his behalf.
The defendant, through counsel, indicated to the Crown that the trafficking charge was likely to be a plea of guilty and that there would be a s 385A application, by email dated 20 April 2021. That position was announced in Court on the first directions hearing on 26 April 2021. There has been a delay in concluding the proceedings which relates only to settling the weights of the drugs seized and the quantum of money seized attributable to offending.
It is submitted on behalf of the defendant that he did not want to become a drug addict and the addiction and consequences have confirmed his remorse at having offended. He attempted to take his own life, resulting in an admission to the psychiatric ward of the Royal Hobart Hospital.
The defendant has had periods of abstinence since his remand in custody in March, but has also relapsed from time to time. The defendant is however determined to overcome illicit drug use.
He made relevant and, it is submitted, extensive admissions to police.
The defendant’s admissions and early indication of a plea of guilty limited the necessity of further investigations by police and saved the resources of the State and Court. It is submitted that each is relevant to remorse and also has utilitarian benefits.
It is submitted that the defendant is amenable to and capable of being rehabilitated, such rehabilitation being in the interests of the community.
I take into account all that has been submitted on the defendant’s behalf in mitigation. In particular, his still relatively young age, his solid industrial record, the circumstances leading to his addiction, the relatively short period of the trafficking and the modest amount involved, his lack of prior drug related offending, his co-operation with police, his pleas of guilty, his efforts towards rehabilitation and his ability to return to work at his trade.
Against that backdrop, and noting that the defendant had completed some 15 months of his suspended sentences (which were imposed for crimes of a different nature) prior to the current offending, I am of the view that it would be unjust to activate any part of the two suspended sentences. The breaches are proved and I make no order. The suspended sentences have now, on my understanding, expired.
As the defendant has prior convictions under the Road Safety (Alcohol & Drugs) Act, 6 – 24 months’ disqualification is the range on each offences under the Act that I am now dealing with.
Keeping in mind the principle of totality the defendant is disqualified from holding or obtaining a drivers licence for a total period of 18 months from today.
As to the balance of the sentencing order – I obtained an assessment report as to the defendant’s suitability and eligibility for a Drug Treatment Order. He is deemed both suitable and eligible. As I have reached the view that I would otherwise sentence the defendant to a term of imprisonment with no part of it suspended, the course I propose to take is to make a Drug Treatment Order.
The single custodial part of the order across all of the offences to which the defendant has pleaded guilty is a period of 15 months’ imprisonment – no part of which will have to be served if the defendant complies with the terms of the order.
The order will contain all of the core conditions contained in ss 27G and 27H of the Sentencing Act 1997.
In addition, the following program conditions will be added to the order:
- That he not use or associate with anyone determined by CMD to be an inappropriate contact and/or who uses any mood or mind altering substances, synthetic substances, or any unidentified substances, and submit to testing as directed by CMD;
- That he reside at [address specified];
- That he is not to be absent from this premises between the hours of 9pm and 7am and is to present to an officer between those times, when required to do so, unless he has pre-approval from his Court Diversion Officer to be absent;
- That he be contactable by phone 24 hours a day and inform CMD immediately of any change in telephone number;
- That he obey all the directions from his Court Diversion Officer or any other case officer (this includes case management appointments, counselling, medical appointments or assessments, urinalysis and any other appointment or assessment as required);
- That he is not to use any prescription medication without approval from a General Practitioner or Court Diversion Officer and only to take prescribed medication in accordance with the directions;
- That he report directly to the CMD office at Highfield House by 12.00 noon tomorrow, at which time the order will commence;
- That he refrain from the consumption of alcohol and submit to breath analysis as requested by CMD or Tasmania Police.
I direct that Mr Hutchinson appear in the Hobart Magistrate’s Court on the date and time that is notified by SMS message to Mr Hutchinson and to Ms Flockhart and is to be obtained by Mr Stevens.