STATE OF TASMANIA v NICKI KAMARIC 16 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE BRETT J
Mr Kamaric, you have pleaded guilty to one count of trafficking in cannabis. You have also pleaded guilty to related summary offences of unlicensed driving and driving a motor vehicle while prescribed illicit drug was present in your body.
The trafficking charge arises out of cannabis located by police at your residence on 12 August 2021. This search was conducted at the same time as you were intercepted by police when driving a motor vehicle, and it is this driving which gives rise to the summary offences. Police located a total amount of 1.25 kg of cannabis in various locations in your house. This included 920.13 g of cannabis bud, which was packed tightly in cryovac bags, and was located in your bedroom. The prosecution asserts that you are guilty of trafficking on the basis that you possessed all of the cannabis with the intention of selling it. Your plea of guilty necessarily involves an admission that you possessed at least some of it for that purpose. Your counsel asserts that some of the cannabis actually belonged to your house mate, but you accepted in your police interview that the cannabis found in your bedroom, that is 920 g, belonged to you.
Your counsel did not dispute that you do sell cannabis to others from time to time. However, it was put to me that you do not do this on a significant commercial basis, and that you only sell cannabis in small quantities to a limited number of people. You use cannabis yourself on a daily basis and have done so for most of your adult life. Your counsel says that a large part of the cannabis in your possession was intended for your own consumption. This is not been disputed by the prosecution.
There is one aspect of your counsel’s submissions concerning the factual basis of sentence, that requires comment. Counsel submitted at least initially, that because the indictment asserts that you committed this crime on a single day, 12 August 2021, that I should only sentence you on the basis of the cannabis which you might have sold during the course of that day only. As was apparent from our discussion, I reject this submission. It is fundamentally inconsistent with the basis upon which you are criminally responsible for the crime of trafficking. The extended definition of trafficking in the Misuse of Drugs Act deems a person to have engaged in trafficking in a controlled substance if the person possesses the substance with the intention of selling it. A controlled substance includes a controlled plant such as cannabis. Accordingly, a person can commit the crime of trafficking on a single instance, if the person is in possession of the substance on that occasion with the requisite intention. However, it is important to point out that the intention is not restricted to selling on the same day that the crime is committed. It is simply necessary that the intention to sell cannabis at some time is coincident with the possession. Further, it is appropriate and even necessary for the sentencing court to make some assessment of the context in which the crime is committed, in particular the nature and extent of the trafficking to which the crime constituted by possession of the drug on the particular day relates. In making this assessment, the court may have regard to other relevant evidence such as drug related paraphernalia, text message conversations etc. I refer to my explanation of this in Llewellyn v Tasmania [2018] TASCCA 12.
In any event, my assessment of this case is consistent with the description of the trafficking activity conceded by your counsel. The amount of cannabis, although a trafficable quantity, was relatively modest. Its maximum value if the entirety was sold in small deal sized amounts is approximately $26,000. However, as I have already noted you did not intend to sell it all and it is highly unlikely that you would have realised that value. I will proceed on the basis that this was a low level trafficking operation, which was subordinate to your own use of the cannabis.
You are 61 years of age. You are single, have no dependents and are currently unemployed. Your criminal history reflects longstanding problems with both alcohol and drugs. There are a number of drink-driving convictions, the last of which is in 2014. There are also several convictions for drug-related offences, which include three separate convictions for selling cannabis between 1995 and 2006, and a conviction for trafficking in cannabis in 2009. On that occasion, you were sentenced to 5 months’ imprisonment. It is notable however, that since then, apart from one count of unlicensed driving and the drink driving conviction, you have not been convicted of any other offences. Your counsel says that until 2015, you had a good industrial record, and this assisted you in avoiding unlawful activity. However, in 2015 you lost your job, and since then have not been successful in finding other work. It was in this context that you have fallen back into using and selling cannabis.
There is no question that trafficking in any illicit drug is a serious matter. Trafficking in any form and to any extent involves the distribution of the unlawful and harmful substances throughout the community. General deterrence is always a significant sentencing consideration and, as you must know having regard to own experience, is a crime which is invariably punished by a prison sentence. In your case, there is no question that such a sentence is warranted. The only real question is whether you should be required to serve some or all of it immediately.
After considerable thought, I have decided that it is appropriate to impose a wholly suspended sentence of imprisonment. This will give you the chance to avoid actually serving the sentence in prison. I am doing this because of the relatively low level nature of the crime, the fact that you have been able to avoid further drug-related offending for the last 12 years and your plea of guilty. A suspended sentence will also permit me to provide for ongoing supervision. However, I would make this point to you. Although you have had a long-standing drug habit, the time has come for you to break that habit and to put aside your relationship with cannabis. The conditions of suspension will include a condition that you must not commit an offence punishable by imprisonment during the period of suspension. Such offences will include possessing even a small amount of cannabis intended only for your own use. It will also include unlicensed driving. If you commit an offence of this nature, or indeed any other offence which has a potential punishment of imprisonment, then the court will be required to activate the suspended sentence unless persuaded that it is unjust to do so. In your circumstances, a court is highly unlikely to be persuaded of that. So, if you want to stay out of prison, you need to give up cannabis and also stop driving unless and until you obtain an appropriate driver’s license, which will not be possible until you serve a disqualification period. The driving issue is important from the perspective of community safety. Those lawfully driving or using the roadways are entitled to assume that everyone else doing so is lawfully licensed to drive a motor vehicle. In your case, it is a matter of concern that not only do you have a history of unlicensed driving, but you also have many convictions for driving after you have been drinking or more recently in the case for which you are to be sentenced, with illicit drugs in your body. Because of the need for personal deterrence in respect of your driving behaviour, I intend also to impose a short suspended prison sentence for these offences.
The orders I make are as follows:
- You are convicted of the crime and the offences to which you have pleaded guilty;
- For the crime of trafficking, you are sentenced to a term of 12 months imprisonment. The whole of the sentence will be suspended for a period of two years on the following conditions:
- that you are not to commit an offence punishable by imprisonment during that period.
- that you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from today. The court notes that the conditions referred to in s 24 (5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within 3 clear days of the day that you lawfully cease to be imprisoned under the sentence. In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order,
- attend educational and 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;
- submit to testing for drug use as directed by a probation officer;
- submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
- I make the forfeiture orders sought by the prosecution
- For the offences of driving a motor vehicle with alcohol in body and unlicensed driving, you are sentenced to a global term of 6 months imprisonment, which will be suspended for a period of two years from today on the condition that you are not to commit an offence punishable by imprisonment during that period. Further, you are disqualified from driving for a global term of 18 months, commencing today.
- I point out that the effect of committing an imprisonable offence of any type during the next two years is that you will be liable to serve the total period of both suspended sentences, which is an aggregate term of 18 months imprisonment.