STATE OF TASMANIA v BRADLEY PHILIP McCALL 20 SEPTEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
Bradley Philip McCall, you have pleaded guilty to trafficking in a controlled substance, namely methylamphetamine, between on or about 12 June 2021 and or about 19 January 2022. I am also dealing with your pleas of guilty to some related summary charges, being one count of possess a controlled drug on 19 January 2022, namely MDMA, one count of possess a controlled plant on 19 January 2022, namely cannabis and one count of failed to comply with prescribed storage of ammunition requirements, contrary to the Firearms Act.
On 18 January 2022, a police officer, who was working with a police detection dog at the Australian Post Mail Centre in St Leonards, was conducting odour examination duties in respect to various mail articles. Articles of post which had been deemed suspicious by Australia Post staff had been set aside for examination. One of these included a package addressed to you. The police detection dog was put over the packages and gave a positive indication to the parcel that was addressed to you. A police officer, who was an authorised opener, believed the parcel to contain a prohibited or dangerous product and therefore conveyed it to an Australian Post employee. They opened the parcel. Inside it were four silver sealed bags. These bags contained a clear light brown substance. The parcel was taken to Launceston Police Station and then to the Australian Border Force office where a drug test was completed. It confirmed the substance inside the parcel was methylamphetamine. The parcel contained 59.67 grams of methylamphetamine, so over double the traffickable quantity.
The following day, police arranged for the parcel to be delivered to you with a substitute drug inside. Police conducted surveillance following the delivery and you were observed to retrieve the parcel from the letterbox and then enter your residence with it. Subsequently, a search warrant was executed. The parcel placed in the mailbox was found inside your property, open, with the substitute drug still present.
During the search of your property police also located and seized the following items – three sets of digital scales, a small amount of cannabis, a container containing creatine, a quantity of gelatine capsules, $1,405 in cash and 239.5 Xanax tablets. Also located were 15 clip seal bags containing quantities of MDMA, four clip bags with trace amounts of MDMA, one clip bag with trace amounts of MDA, four snap lock bags with trace amounts of cocaine, one bag of methylamphetamine weighing 0.4 grams, one bag of methylamphetamine weighing 0.06 grams and two quantities of .22 ammunition.
The total quantity of MDMA located at your residence was 5.35 grams. The total quantity of MDA located at your residence was 0.47 grams. The estimated street value of the MDMA found was $1,070. The estimated street value of the methylamphetamine located by police at the mail delivery centre, if sold by the gram, was $14,917.50.
During the search your mobile phone was also seized. Messages found on your mobile phone indicated you were involved in selling illicit drugs from June 2021 until at least December 2021. Some of the messages were from people requesting to purchase drugs from you including discussions about prices. Other messages were requests from you for people to whom you had sold illicit drugs to label their bank transactions in a way which disguised the fact the payment was for illicit drugs.
During the search police located ammunition in your bedroom. I am told you were licenced to possess a firearm at the time. You had purchased the ammunition legitimately from a licenced firearm vendor. The gun safe at the house where the ammunition is stored is in the garage. Whilst you had a key to the firearm safe you did not have a key to the garage. Your father was not home at the time you brought the ammunition into the house, and you could not immediately access the garage. You placed the ammunition in your bedroom, intending it would only be there for a short time and that when you could access the garage, you would place it into the firearm’s safe. There is nothing before me to contradict this account.
Following the search, you were arrested. You were taken to the Devonport Police Station. You participated in an electronic record of interview but you declined to comment or assist police as to the nature of any of the illicit drugs found. The State assert the basis of your criminal responsibility for the trafficking in methylamphetamine is by both selling the substance and importing it.
You are 26 years of age. You have one relevant prior matter recorded on your criminal history in Queensland. In July 2022 you were dealt with by the Queensland Supreme Court for the offence of attempt to commit offence of possessing dangerous drugs. The circumstance of this offence was that you, together with some friends, had posted $4,000 worth of MDMA and cocaine to a post office in Queensland so that you could access them for personal use whilst on holidays in that State. The parcel was intercepted and when you attended at the post office to collect it, police were waiting for you. Whilst I accept this previous matter did not involve the sale of illicit substances, it strongly indicates that you have an issue with illicit substance use. To go to the trouble of posting yourself some drugs to ensure you would be able to have access to them whilst on holiday in another State, suggests a level of desperation to ensure supply and obviously you are willing to break the law to ensure access to such substances.
On this occasion I am told that you had ordered the methylamphetamine on the “dark web”. You intended to use it predominately for yourself, but accept that you would have sold some of the product. Of course, the text messages clearly indicate that you had been selling methylamphetamine to others for several months prior to importing the substance in the mail. I am told that the MDMA and cannabis that was located was for your personal use. Again, the fact that you were in possession of three different types of illicit substances, speaks to the extent of your involvement with illicit substances. This is an important consideration in sentencing as it speaks to the need for personal deterrence and the prospects of your rehabilitation.
By way of antecedents, for the past eight months you have been employed as a mining contractor at Savage River Mines. Before that you had a solid employment history, including undertaking part of an apprenticeship as an electrician, and completing an apprenticeship as a builder, before moving into the mining industry. I am told in your current employment you are subject to random alcohol and drug tests. Since being employed at Savage River Mines, I am told you have not failed a drug test, but it also seems that you have not given up the use of illicit drugs. I do not know to what extent you have been subject to random drug tests, but I infer the fact you pass them is indicative only of you managing when you consume illicit substances, and is not indicative of an abstinence from them. The fact that you are still using illicit substances is concerning because your involvement in trafficking stems from your personal use of such substances. Whilst you are continuing to use illicit substances there remains a risk that you will again reoffend as you have done on this occasion. That is a relevant sentencing consideration.
I take into account your plea of guilty. I accept it was indicated at an early stage. There has been some delay in this matter being resolved, but it seems the area of dispute related to the summary offences rather than the indictable matter. I am told that originally you were also charged with trafficking in MDMA because it was alleged that you were in possession of a trafficable quantity of that substance. Following analysis of the illicit drugs in your possession, it was revealed that you were not in possession of a trafficable quantity and that charge was amended to an allegation of possession of MDMA.
Relevant to that, the State seeks the cost of the analysis in the sum of $7,880 pursuant to s 36B of the Misuse of Drugs Act. You contest this on the basis that there had been an offer made to plead guilty to trafficking in methylamphetamine and possession of MDMA in December 2022, before the drug analysis was undertaken. Your counsel submits on your behalf that if the prosecution had accepted that offer there was, in effect, no need for the drugs to be analysed. I do not accept that submission. You did not co-operate with police in terms of making admissions about the type of illicit drugs that were found in your residence following the search. It was necessary for the prosecution to have the substances analysed so that they knew the type and quantity of illicit substances that were in your possession and could then make a proper determination as to the appropriate charges. I am satisfied that the cost of analysis was reasonably part of the cost of the prosecution and I will make an order awarding the sum of $7,880 against you as part of the costs of the prosecutor.
I accept that your involvement in selling methylamphetamine stemmed from your own use of the substance, but I am also satisfied that you sold it to make money. Between June and December 2021, you had been selling the substance and you intended to keep doing so. Even though you did not receive the delivery of the methylamphetamine you had ordered, this was only because of the good work of law enforcement authorities. Had you received it, you were intending to use some of it and sell some of it. Your involvement in trafficking methylamphetamine only ceased because you were apprehended, not because you desisted.
Methylamphetamine causes great harm in our community and those who seek to profit from the misery it causes should except to receive harsh punishment. The evils of drug trafficking have been explained many times and whilst the period of your trafficking was not an overly long one, and the quantity of drugs involved was not large compared to many cases seen in this Court, it nevertheless involved serious criminality. Having listened carefully to what was submitted on your behalf, and having observed you throughout the sentencing hearing, I am left with the strong impression that you do not appreciate just how serious this conduct was and that troubles me.
Primary considerations in any trafficking matter are general deterrence, denunciation and community protection. In this case, for the reasons I have expressed, I also consider specific deterrence to be a weighty consideration. In my view your conduct clearly warrants a period of imprisonment. The question I have grappled with is whether I should suspend any portion of the period of imprisonment I intend to impose. I have determined that given your ongoing employment, the nature of your prior criminal matter, and your personal circumstances generally, I should give you the benefit of the doubt and suspend the period of imprisonment. You should clearly understand however, Mr McCall, that it was a finally balanced determination and if you breach the terms of the suspended sentence the law is that a judge must make you serve it unless it is unjust to do so.
I make the following orders:
You are convicted of the crimes and offences to which you have pleaded guilty. In respect to the summary charges, you are fined the sum of $1,000. On the indictment, you are sentenced to imprisonment for 14 months. The whole of that sentence will be suspended for a period of two years on condition that you are not to commit another offence punishable by imprisonment during that period. I warn you that the possession of, or use of, any illicit substance is a matter that is punishable by imprisonment.
I make the following forfeiture orders:
- Items 1, 2, 3, 4, 5, 9, 10, 12,14, 15, 16, 17, 18 and 19 on property seizure record receipt 208758.
- Items 22, 23, 24, 26, 27, 33 and 34 on property seizure record receipt 208759.
- Items 30, 31 and 32 on property seizure record receipt 208759, being the ammunition.
- I further order that the cash sum of $1,405 be forfeited to the State of Tasmania, pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act.