STATE OF TASMANIA v THOMAS OLIVER MELICK 1 MAY 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Melick, a jury has found you guilty of one count of trafficking in MDMA. I intend to deal with that first.
The prosecution case was based on trafficking constituted by the act of importing 501 ecstasy tablets into Tasmania. The tablets were discovered on 12 January 2016 during a routine x-ray examination by Biosecurity Tasmania of postal items received at the Mornington Mail Centre. They were contained within an express post parcel addressed to you at your parents’ post office box. The sender’s address purported to be a company based in Victoria, but police inquiries were unable to find any trace of the purported sender. The company had been deregistered many years ago. The sender’s name and address were clearly false.
The case against you, insofar as it related to proof that you had imported the drugs, was entirely circumstantial. The jury was told that to find you guilty of importing the drugs, it must be satisfied that you had knowingly arranged for them to be sent to you by post from a place outside Tasmania. The jury was clearly satisfied of this, and you will be sentenced on this basis. Of course, it was also necessary for the prosecution to prove that you had imported the drugs with the intention of selling at least some of them. In this respect, the evidence established that the drugs exceeded a trafficable quantity, which, in respect of MDMA, is 10 g. On the evidence, this was approximately equal to 31 tablets. You had imported 501 tablets. The statutory presumption that you intended to sell the drugs, in my view, applied with respect to all the tablets imported by you, and there was no evidence to the contrary. Having said that, it is obvious to me that you were intending to use some of the tablets yourself. I arrive at that conclusion based, not only on the basis of the paraphernalia found during the police search, but also on the material that I have received during the course of the sentencing process, which includes the psychiatric reports. I will refer to shortly. However, I am also satisfied, in accordance with the statutory presumption, that you did intend to sell a significant quantity of the drugs. I am not able to determine the precise proportions, and I do not think it is necessary for me to do so in order to assess your culpability in respect of this crime.
The conclusion that you intended to sell the drugs is, in my view, consistent with other evidence which established that at about the time of the importation, you were carrying on a low level activity of the sale of ecstasy tablets, at least to friends who were attending the Falls Festival. According to evidence presented at the trial, the drugs found in the package had an aggregate wholesale value of $15,000 and if sold individually, could have returned a gross value of $25,000. I intend to proceed on the basis that your importation of the drugs was related to a relatively low level enterprise. The enterprise, in my view, involved the sale of small quantities of MDMA tablets to end users, probably at social musical events such as the Falls Festival. In this respect, you actions cane be distinguished from more serious cases of trafficking and lacked the sophistication of more intense commercial activity.
When police searched your residence shortly after the interception of the MDMA, they found three firearms and a significant quantity of ammunition in your bedroom. They also found cannabis and a smoking device. You have now pleaded guilty to the charges relating to these firearms. The offences in question are one indictable offence of possession of a prohibited firearm and 11 summary offences relating to your possession of the other two firearms and the ammunition, and relating to the improper storage of those items. Two of the firearms were shortened shotguns, and that fact also led to two of the charges. The prohibited firearm was a self-loading rifle. It was submitted by your counsel that this self-loading rifle was the type of weapon that may have been in use commonly by farmers prior to the firearms legislation that was introduced after the Port Arthur massacre. I do not know if that is so or not, it does not really matter. It is a prohibited firearm and I have to accept that the legislation weapon has deemed it to be prohibited for very good reason. Obviously, being a self-loading weapon, it carries with it dangerous aspects which may not be as applicable in relation to other types of firearms. The shotguns were located in a backpack in your bedroom, and the prohibited weapon was leaning against the wall. You made no attempt to safely secure the firearms. However, I do note that none of the firearms was loaded. Of course, the ammunition that was found, some of which was compatible with use in the firearms that were located in the bedroom, was also kept in an unsafe condition in the bedroom.
Your explanation for the possession of these firearms has been given to me by your counsel. It is that during a period that was a difficult period in your life, and I intend to say more about that in a moment, you found the two shortened firearms in the premises. The self-loading rifle you acquired in exchange for doing some work for an unnamed person. There is no real explanation given as to why you decided to keep these weapons instead of handing them in. I am sure you knew that you had to hand them in. You had a firearms licence at the time, and had military training. So, I am sure you know exactly what you were dealing with, and made the decision to keep them in that context.
You are 29 years of age. You were 26 at the time you committed these crimes and offences. You have no prior convictions of any significance. I have received psychiatric evidence which satisfies me that, at the time of committing all of the offences and crimes, you were suffering from conditions which affected your mental health. In particular, you were suffering from the effects of post-traumatic stress disorder and major depression, both of which had their origins in two deployments to the Solomon Islands as a member of the Army Reserve. These deployments took place in 2008 and 2010/11. There were some other events which occurred after the last deployment, which also contributed to your compromised psychological state at the time you committed these offences. This included a fire at a residence owned by your parents, which you were renting with others, in 2014. This psychological condition manifested in your behaviour and, in particular, could be demonstrated by a lengthy period of alcohol and drug abuse. Your conduct at this time was also characterised, according to the reports, and I have no evidence to the contrary, by impulsivity, impaired judgment and mood problems. There was some suicidal ideation and erratic behaviour. I think what is really being put to me is that your acquisition of the firearms, the decision to keep them, and I am not sure that the trafficking falls into that category because you have denied that, but at least the firearms offences can be categorised under the heading of erratic behaviour. This was your condition at the time you committed the trafficking offence. I do not think that these psychological issues significantly reduce your moral culpability for the calculated conduct involved, particularly in respect of the trafficking, and also in respect of the firearms. You knew what you were doing. What the mental health evidence explains is the psychological state you were in that led you to make those decisions. But you still knew what you were doing. You still knew how wrong they were. You have not demonstrated any real remorse or contrition in respect of the specific conduct which constitutes the trafficking crime. I think that this is something which would be expected if you were acting at the time in a manner which you now accept was out of character.
On the other hand, I think this history, and what has happened since, is particularly relevant to the question of personal or specific deterrence. The reports demonstrate that since 2016, your mental health and general condition has improved significantly. This improvement has been largely attributable to steps which you have taken to exercise personal responsibility and address the problems in your life. In particular, you sought treatment for the mental health conditions and have committed to and continued that treatment to the present time, and my understanding is that it is ongoing. You have ceased illicit drug use, significantly reduced your alcohol consumption and committed yourself to your family, in particular, your wife and two young children. You have engaged in vocational rehabilitation and undertaken part-time employment. Your psychiatrist, Dr Lane, considers that your prognosis is good. This history enables me to conclude that, irrespective of your lack of remorse in respect of this particular offending relating to the trafficking, you are not likely to reoffend in a similar way, at least while your commitment to treatment and your family remains intact. You obviously have significant support in your life, including from your extended family, and I have no reason to think that as things currently stand, you are not genuinely committed to continuing the positive course you have chosen over the last few years.
In relation to the objective seriousness of the trafficking crime, there are two aspects which are particularly concerning. Firstly, the importation of the drugs into Tasmania had the potential – I should say the unrealised potential because of the interception of those drugs – to increase the supply of an illicit substance available for dissemination throughout the Tasmanian community. Secondly, while MDMA does not have a reputation as a strongly addictive drug, ecstasy tablets are normally sold and circulated for casual use at places where young people gather for entertainment, such as music festivals. As I have already pointed out, it is reasonable to infer that had these drugs not been intercepted at the post office, that this is how they would have been sold. The culture of taking drugs by persons who often have little experience in drug taking, and are taking pills, the contents of which are unknown, comes with its obvious risks, and these risks, and sometimes tragic consequences, have been well documented in the media. That culture must be discouraged and, accordingly, those who profit from it by trafficking in the drug in question must expect punishment. It follows that general deterrence is an important sentencing consideration.
The firearms offences are also concerning. It is not alleged that your culpability for these offences is aggravated by the context in which they were committed, that is that you had any particular use for them. However, your possession of these weapons, and your failure to take adequate precautions to secure them, particularly when an amount of ammunition compatible with some of the weapons was also located nearby in an unsecured state, meant that the firearms were particularly vulnerable to theft and improper use. The unlawful presence of firearms in the community is a matter of understandable community concern. The self-loading weapon, the prohibited weapon, and the shortened shotguns have no place in our community unless their presence is appropriately authorised by law. I regard the offences as relatively serious examples of their type.
The objective seriousness of the criminal conduct relating to all charges requires the imposition of a sentence of imprisonment. However, having regard to your lack of prior convictions, your age, the relatively low level and unsophisticated conduct involved in the commission of the trafficking crime, and your personal circumstances described above, including in particular, the real steps you have taken to deal with your psychological difficulties and their consequences which have provided the context of your offending, I am prepared to give you an opportunity to avoid serving that sentence and I am therefore prepared to wholly suspend the sentence. I agree with your psychiatrist that it is appropriate that you perform some community service. This will, I think, be to your personal benefit, but will also maintain the punitive effect of the sentence. I would often, in that situation, obtain a screening assessment just to get the opinion of Community Corrections as to whether a person is suitable for community service, but I think I can make that decision without doing so. I am satisfied that Mr Melick is suitable to perform community service.
I do accept the submission made by Mr Gunson SC that the smoking device charge should be dealt with under s 7(h) of the Sentencing Act which is to dismiss the charge without recording a conviction. It is a relatively minor offence in the scheme of things. It is not an imprisonable offence in any event, and I think what I have been told about the impact of a conviction for that charge on Mr Melick’s prospects and personal circumstances warrants taking that course. So in relation to count 14 on complaint 5027/2016, I dismiss that charge without recording a conviction.
The other orders I make are as follows:
1 You are convicted of the crime of which you have been found guilty, and the crimes and offences to which you have pleaded guilty, with the exception of count 14 on that complaint.
2 For the crime of trafficking and the firearms offences, I impose a global sentence of 18 months’ imprisonment. The whole of that sentence is suspended for a period of 18 months on the following conditions:
(a) You are not to commit another offence punishable by imprisonment during that period.
(b) You will perform 161 hours of community service. You will be required to report to community corrections in order to commence that work within three days of today.
3 In respect of count 13 on complaint 5027/2016, the possession of cannabis charge, you will be fined $150, which you will pay within 28 days.
4 Pursuant to s 36B of the Misuse of Drugs Act, I assess the reasonable expense of the analysis of the relevant drugs at $9,060. I order you to pay that sum as part of the costs of the prosecutor.
5 I make the forfeiture orders pursuant to the Misuse of Drugs Act as they have been sought by the prosecution.
6 I order that the seized firearms and ammunition be forfeited to the Crown.