STATE OF TASMANIA v RUDI JOHN MAJCEN 5 JULY 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Majcen, you have pleaded guilty to one count of trafficking in controlled substances, in particular methylamphetamine, cannabis and MDMA. You have also pleaded guilty to some associated summary offences. These are using methylamphetamine, using cannabis, possession of a smoking device, possession of cocaine and possession of a small amount of ammunition without a licence.
The trafficking activity occurred between 1 July and 30 November 2018. During that time, you conducted a drug dealing business involving all three drugs, but the primary drug trafficked by you was methylamphetamine. The business involved continuous trade to a group of customers, who numbered in excess of 30. This trade included the sale of small quantities of the illicit drug in question, as well as the sale of larger quantities to customers who would then on–sell the drug to end users. The assessment of the scale of the trafficking activity relies heavily on an analysis of social media and text messages accessed by police after your arrest. Although you made some admissions to police, those admissions lacked significant detail, and did not reflect the true scale of the trafficking activity manifested in the messages. The impression I gained from the sample of the relevant messages provided to me, is that the trafficking business involved significant quantities of drugs sold on a frequent basis to a number of persons, but in a relatively unsophisticated way. It is obvious from the messages that you provided drugs on credit and often had difficulty accessing payment. You recorded money owed to you by way of simple tick sheets, and some of these were found by police during searches. Further, there is no evidence that you employed any sophisticated precautions to avoid detection.
You were first arrested and charged by police after a search of your premises and subsequent interview, on 16 October 2018. After being charged, you were released on bail. You continued with your trafficking activity after your release. This became apparent when police executed a second search warrant on 30 November 2018. Messages relating to the period between the searches indicate that you had continued to sell methylamphetamine and other drugs in varying quantities to a number of persons. In your interview with police after the second search, you estimated that you had received $9000 from trafficking activity after the first arrest. Your explanation for continuing the trafficking activity is that you were attempting to recoup sufficient funds to repay outstanding drug debts. Your counsel informs me that in February of this year, you were seriously assaulted in your home and suffered several injuries. It is suggested, I think, that this assault was a consequence of your failure to repay all of your drug debts. Despite this, you have not identified your suppliers to police.
You are 43 years of age. You have three young children. The children live with their mother, but you have regular contact with them. You have been employed as a produce manager with a supermarket, but you have been relying on long service leave since suffering the injuries earlier this year. You have been a regular user of illicit drugs for most of your adult life, although it is only relatively recently that you commenced to use methylamphetamine. According to your counsel, you became involved in selling drugs in an effort to defray the cost of your own drug use, and continued with it when you realised that it made economic sense to purchase more than you needed and sell the balance.
Your criminal history is consistent with your long-term involvement in the drug culture. In 2006, you were convicted of a number of minor drug offences, which included the supply of drugs. In 2009, you were convicted of similar offences, but this time they included the minor offence of selling a controlled plant or its products. A conviction in June of this year for driving with illicit drug in blood would suggest that you are still, at least, using illicit drugs, or were then, in any event.
I regard your criminal conduct as a serious example of mid-level drug trafficking. There was a commercial element to the activity. Although I accept that you were using illicit drugs which you acquired in the course of the trafficking, the scale of the business far exceeded that needed to simply fund your own drug habit. It is clear that you were motivated by the prospect of profit, although your hopes in this regard seem to have been frustrated by the way in which you conducted the business.
The business was conducted on a relatively intense basis over several months. It involved the sale, not just to end users, but also of larger quantities to persons whose intention was to on sell to others. It involved three types of illicit drug and the primary drug, methylamphetamine, is notorious as a harmful and highly addictive substance. A highly aggravating feature of your conduct is that you continued the trafficking activity after being detected and arrested on the first occasion. Your counsel claims that you are now remorseful and want to put your involvement with illicit drugs behind you. However, it is difficult to accept that this is a genuine commitment held by you. There are two reasons for my scepticism. Firstly, your conduct in continuing the trafficking business after the initial arrest is inconsistent with a genuine commitment to reform. Secondly, the submission which suggested this commitment also asserted that your intention was to clear your drug debts in order to make a clean start. The payment of your drug debts would constitute the provision of comfort to your drug suppliers by paying them money for debts accrued by you for the unlawful supply to you of illicit drugs for the purpose of your trafficking activity. If this is truly your intention, it would represent a continuation of the unlawful trafficking activity to which you have now pleaded guilty. I can certainly understand that you are in fear of these persons, but this intention also, in my view, represents a lack of insight into the nature and seriousness of your criminal activity and is contrary to your assertions about reform.
On the other hand, I will take into account in your favour your very early plea of guilty. Trafficking cases are notoriously difficult to prosecute and often involve the application of significant resources in doing so. I will accept your early plea of guilty as some evidence of your co–operation in the administration of justice.
The distribution of illicit drugs throughout the community causes great harm and unhappiness to many people, and is a matter of considerable community concern. Methylamphetamine in particular is considered to be a highly addictive and damaging drug, and results in many adverse social consequences, including the commission of crime in order to support addiction. Judges have said on many occasions that those who choose to traffic in illicit drugs must expect harsh punishment. In your case, I am satisfied that the only proper sentence is a significant period of actual imprisonment.
The orders I make are as follows:
1 You are convicted of the crime and the offences to which you have pleaded guilty;
2 In respect of the crime of trafficking, you are sentenced to a term of two years and six months‘ imprisonment, which will be backdated to 26 June 2019. I order that you not be eligible for parole until you have served one half of that term.
3 In respect of the remaining summary offences, with the exception of count 8 on complaint 55342/18 and count 1 on complaint 54848/18, you are sentenced to two months‘ imprisonment which will be served concurrently with the sentence imposed for trafficking.
4 In respect of the remaining two charges, I impose no further penalty. neither of which are imprisonable offences,
5 I make an order that the cash sum of $935 located by police on 30 November 2018 be forfeited to the State of Tasmania pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993.
6 I also make the remaining forfeiture orders sought by the prosecution pursuant to s 38 of the Misuse of Drugs Act.
7 For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(a) the total term of imprisonment which you are liable to serve in respect of all of the above sentences is 2 years and 6 months, commencing on 26 June 2019;
(b) the total period that you must serve before you become eligible for parole is a total period of 15 months.