STATE OF TASMANIA v JUDD PAUL KRAEMERS 30 AUGUST 2021
COMMENTS ON PASSING SENTENCE GEASON J
You appear for sentence on an indictment to which you have pleaded guilty, alleging trafficking in cannabis, cocaine, MDMA, Lysergide, known as LSD, Diazapam and methylamphetamine. You have also entered a plea of guilty to a complaint for possessing ammunition when not the holder of the appropriate firearm licence contrary to s 1053A of the Firearms Act 1996.
You also appear for sentence on your plea of guilty to a second indictment for possessing a prohibited firearm; that is a firearm in respect of which a firearms licence may not be issued, contrary to the Firearms Act. That offence was committed in May 2020.
The trafficking charge relates to the period 1 August 2019 to 6 November 2019. You were 29 at the time and living at Brooker Highway, Derwent Park. Police intercepted your vehicle in Glenorchy. You returned a positive reading for amphetamine to an oral fluid test. Your vehicle was searched. A black case was located in the vehicle which contained the following:
- A clear plastic bag containing 25 grams of methylamphetamine crystals.
- A clear plastic bag containing 11.7 grams of methylamphetamine crystals.
- A snap-lock bag containing 135 perforated tabs in 3 square sheets, which contained Lysergide, also referred to as LSD.
- A snap-lock bag containing 23 Viagra pills.
- 280 tablets containing Diazapam.
- Partial tablets also containing Diazapam.
A further search of the vehicle resulted in police locating a phone, an inoperable black Samsung phone, and a black wallet. The wallet contained $490 in cash.
You were cautioned and you told police that everything in the black case belonged to you; you admitted that there was Ice, Valium, Viagra and “other things” you did not know the name of in that box.
Police subsequently executed a search warrant at your residence, where they located a smoking device, an Ice pipe, cryovac packaging containing trace amounts of cannabis, a set of scales, and a plastic tub containing 598 grams of granulated substance used in sparklers. Other items were located including 5.3 grams of a cannabis/tobacco mix and 7.6 grams of cannabis. This was located in the laundry cupboard.
In the kitchen, police located four antique pistols; 2.9 grams of cannabis; a bottle of nicotine; an iPad; a Samsung tablet and a Samsung phone.
In the bedroom police located a number of items including a revolver reloader, with five rounds of ammunition inside; 53 rounds of 12 gauge ammunition; a Google mobile phone; an iPhone; three cryovac bags containing trace amounts of cannabis and another 29.9 grams of cannabis bud; unused snap-lock bags; a safe containing $3665 in $5 notes and some personal documents. They found another mobile phone, a laptop, a black notebook, computer hard-drive, and a black note pad.
In an area beneath the stairs police located a silencer, a magazine, and six rounds of ammunition. In the hallway they located one round of ammunition. Other people present at the house provided police with another three mobile phones.
In all in the course of the search in relation to drugs police located 53.9 grams of cannabis and $3365 in cash.
In a video record of interview, you admitted to not having a firearms licence; that the antique pistols were yours, but that you did not think that they were illegal or functioning; that the ammunition was yours, and that the drug related items found in the shed including the scales belonged to you. You agreed that you had sold cannabis to friends and family on an occasional basis, and that you had sold five ounces to the same two or three people between the period of August 2019 and November 2019. You told police that you were selling cannabis for between $200 and $250 per ounce.
In relation to the sale of the MDMA you said that you “moved a little bit, just pills here and there”; you said you did not sell them for very long because you did not like going out and that you had sold between 20 and 30 pills in August 2019 for $20 per pill.
In relation to the sale of cocaine, you said that you had sold a couple of grams; that you sold it for between $300 and $350 per gram; and that you did not make a profit. In relation to the sale of the LSD you admitted that you may have sold to one person in the preceding month, that you sold the tablets for between $20 and $50 each, but that otherwise you could not remember the circumstances of that sale. Similarly in relation to Diazapam, you admitted to having sold a few; that you had been in possession of the tablets for a fair while; that you sold them for what you paid for them, about $2 per pill, and you do not sell many. You said you sold 30 of the tablets in the black case found in your vehicle. You had apparently given away five tablets to someone the night before. In relation to the sale of Ice, you made no admissions and said that you had had the Ice inside the case for a couple of months.
In relation to the sale of drugs generally you said that you knew a lot of people and you would either deliver drugs to them or they would meet you somewhere.
If people came to your house you sold them drugs in the shed.
The total amount of methylamphetamine found in your vehicle on the day of the intercept was 36.7 grams. Had it been sold in point form you stood to make $36,700, that is 367 points at $100 per point.
LSD tablets are commonly sold for $20 each, and had you sold of the tablets in your possession you stood to make $2700.
Diazapam tablets are commonly sold for $5 each, and had you sold the entire 280 tablets in your possession you would have made $1400.
The Crown case against you is put on the basis of Giretti trafficking, that is, that you were engaged in the business of drug trafficking during the period covered by the indictment. This involved both the sourcing and sale of drugs of the type identified in the indictment to which I referred to earlier.
It is not possible, nor is it necessary for the State to establish with precision the quantities of drugs sold by you, but it is asserted that during the period referred to in the indictment, you trafficked to an unspecified number of people, consistently with the admissions you made to police. The Crown case is that you were possessing and transporting the methylamphetamine, Diazapam, and LSD found in the black case in the car on 6 November 2019 with the intention of selling it. The quantities of drugs that were found in that case are evidence of the extent of the drug selling business as it relates to those particulars drugs.
The Crown makes application pursuant to s 11(1)(a) of the Crimes (confiscation of profits) Act 1993 for an order pursuant to s 16 of that Act, that the $4155.35 seized by police from you on 6 November 2019 be forfeited to the State as tainted property. I find that it is tainted property, and I make that order. I also make an order that you pay the costs of analysis in the amount of $2685, pursuant to s 36B(2) of the Misuse of Drugs Act 2001.
I make the forfeiture orders sought by the State. In relation to the ammunition subject of the summary charge, you were not the holder of a licence entitling you to be in possession of that ammunition. As such, the charge is made out.
On second indictment, 949/2020, the charge of possessing a prohibited firearm on 14 May 2020, the facts are as follows: you were intercepted by police travelling south on Springfield Avenue. You were the only occupant of the vehicle. Again, an oral fluid rest returned a positive reading for drugs. Located inside the vehicle on the floor behind the rear seat was a .22 calibre bolt action repeating rifle without the magazine. The rifle was fitted with a bi-pod stand, scope and silencer and was covered in camouflage patterned tape.
The rifle was seized, and upon examination was found to be in working order and capable of discharging a projectile. The silencer had been fitted over the end of the barrel and was loosely attached.
The rifle, without the silencer is a category A firearm. You were not the holder of a firearm licence at the time. Because a silencer was fitted to it at the time the gun was found the firearm is prohibited under the Firearms Act.
You were arrested and cautioned. You told police the firearm was not loaded otherwise you exercised your right to silence in respect of that firearm and made no response to questions.
In relation to this episode, that is the gun related episode, the subject of the second indictment, I am also sentencing you today for a number of summary matters that arise from the same conduct. They relate to the possession of the silencer, possession of a gun with identification marks altered or defaced, and a charge of failing to comply with the direction of the Director of Public Health. The facts in relation to that last matter are that you were away from your primary residence during a period in which a public health direction was in force that required you to be at your primary residence unless leaving for a specified essential purpose or with reasonable excuse. Neither of those exceptions applied to you.
I have received a pre-sentence report in relation to you and have regard to its contents generally. Relevantly, I note that you are employed and that your employer is supportive of you and indeed supportive of your participation in a community based order if such sentence is considered appropriate by the Court. He will accommodate any commitment which will attach to such an order.
According to the report you are remorseful, and you are keen to receive assistance for health and substance use issues. According to the report you have removed yourself from the drug scene and no longer associate with people in that scene. Relevantly, you have previously self-referred to Holyoake to seek support for your addiction and poor decision-making generally. You have been actively involved with Holyoake, and according to a report you have made progress. It is your intention to re-engage with a counsellor, and to attend the Gottawanna Program through Holyoake upon your release from custody. Your counsel tells me that you are eligible for that program.
Your conduct involved the dissemination of drugs into the community, and in that respect you are responsible for spreading harm. That includes the harm associated with drug use itself, as well as the associated criminal activity that frequently results from drug use, as those who are addicted to drugs engage in criminal activity of their own to fund their habit. It follows that a sentence which places significant weight on general deterrence is required. The variety of drugs in your possession is indicative of a business operation that catered to a variety of customers.
All too frequently firearms offences are associated with drug trafficking. Whilst the facts as presented to me do not seek to demonstrate a direct link, it is nonetheless the fact that whilst you were engaging in the business of drug trafficking, you were also in possession of the ammunition which was found.
I have regard generally to the matters put in mitigation. I have regard to the fact that you are employed, and have taken steps to deal with your drug issues. I am prepared to accept that taking that action evidences a willingness to make changes which reflects an insight into your offending behaviour. That is relevant to personal deterrence.
Drug trafficking is however, as I have said, a serious crime. it is the need to deter others that requires prominence in fixing sentence
As such a sentence of imprisonment is inevitable.
In respect of the charge of trafficking in a controlled substance, the order of the Court is that you are sentenced to a period of 15 months’ imprisonment, backdated to the day you were taken into custody, which was 25 June 2021.
On the complaint I record a conviction.
Because of the efforts you have taken to deal with your habit, your attendance at Holyoake, and your employment and the capacity within that role to undertake a community based penalty, I have decided to suspend 12 months of that sentence on condition that you commit no offence punishable by a term of imprisonment for a period of 3 years. I further order that you are to complete 100 hours of community service work.
Accordingly, I make a community correction order for an operational period of 24 months commencing upon your release from prison with a special condition requiring that you satisfactorily perform 100 hours of community service as directed by a probation officer or supervisor. I make a supervision order for a period of 12 months.
In relation to the other indictment relating to the possession of the firearm, I emphasise what I have already said, which is that the possession of a prohibited firearm and the associated offences relating to the silencer and the possession of a gun which was incapable of registration by reason of that fact, are serious matters. Firearms offences are prevalent in this community and must be discouraged.
In sentencing you on these matters I have regard to the principles of totality; that is to the sentence that I have just imposed. To that end I propose making the sentence I impose for this offending, concurrent with that which I have just imposed upon you in relation to trafficking. I convict you. I order that upon the indictment you are to serve a period of 6 months’ imprisonment, backdated to the date I remanded you in custody, being 25 June 2021. I suspend 3 months of that sentence on condition that you commit no offence punishable by a term of imprisonment for a period of 3 years. I record convictions on the matters of complaint.
The effect of the sentence that I have just imposed upon you Mr Kraemers is that you are sentenced to 15 months’ imprisonment on the first indictment, 6 months’ imprisonment on the second indictment. I have suspended 12 months’ of the longest sentence, the 15 months’ sentence on condition that you complete 100 hours of community service work and you commit no offence punishable by a term of imprisonment for a period of 3 years. If you do you are liable to serve the 12 months’ that I have suspended. In relation to the firearms matter, I have sentenced you to 6 months’ imprisonment concurrent, that means it runs at the same time and I have suspended 3 months’ of the operation of that penalty. Both penalties commence on the date I remanded you in custody. By my reckoning you still have a little bit of time to serve but not a lot of time and upon your release, you are subject to the conditions that I have just outlined to you.