RADCLIFFE, J D

STATE OF TASMANIA v JUSTIN DAVID RADCLIFFE CUTHBERTSON J

COMMENTS ON PASSING SENTENCE 19 JUNE 2025

Justin David Radcliffe, you have pleaded guilty to one count of trafficking in a controlled substance. This charge brought against you, referred to as a Giretti allegation, is that in the 11-month period between 22 August 2020 and 21 July 2021, you engaged in the business of selling or dealing in the drug MDMA. I am also dealing with an application pursuant to s 27 of the Sentencing Act 1997 in respect of a suspended sentence imposed in the Magistrates Court on 4 May 2021. The conditions of the order of suspension of that sentence were that you not commit another offence punishable by imprisonment during the period the order was in force and that you be of good behaviour. Those conditions were breached when you continued trafficking between the date that sentence was imposed until 21 July 2021.

Evidence of your trafficking was detected on 21 July 2021 when you were arrested by police on an unrelated matter. At the time of your arrest you were in possession of a black backpack. When you were taken into custody at the Hobart Police Station, your black backpack was searched. Police located drugs and drug-related items in the backpack including 241 MDMA pills, 24.28 grams of cannabis bud, clear snap lock bags containing MDMA powder remnants, $2,760 cash, a bag of blue and white empty capsules, a quantity of new snap lock bags, electronic scales and 5 glass pipes. The total weight of the MDMA pills was 86.99 grams, in excess of eight times the trafficable quantity of MDMA which is 10 grams.

Police also seized your mobile phone. A preliminary search of your phone uncovered photographs on your camera roll and numerous message threads on various applications including Wickr and Snapchat relating to the sale of MDMA. Examples of those messages were included in the statement of facts. They consist of messages between you and four others and span the period of time reflected in the indictment. The message threads demonstrate that you were contacted by each of those people for the purpose of purchasing drugs. You discuss in some of the those messages the price you are prepared to sell the pills for. On 29 May 2021 you arrange to sell 10 pk for 150 (which the State asserts means 10 pills for $150). On 9 July 2021, you arrange to sell 50 caps for $650 to another person. On 6 July 2021, you agreed to “do 30 for 450” (which the State asserts means 30 pills for $450). In the other message thread from 13 November 2020, you direct the person to add “tassiebuddz on snap and we talk there” which appears to relate to a Snapchat account. The Crown asserts there are additional messages on your phone indicating sales of MDMA to approximately another nine people.

You participated in a video record of interview and made a number of admissions. You agreed the backpack was yours and had your personal stuff in it. You said the pills were for personal use and were party pills. You told police you used up to 10 pills per day. The State does not accept that assertion. You said you have been using drugs since you were 12 years old. You explained they cost $20 per pill, that you last used some about 2 days ago, and that you usually purchase 250 at a time. You admitted you last sold MDMA three days prior to the interview, selling five pills for $100. You said you sell about 50 pills per week, and that you normally sell 50 at a time on a good week. You told police you usually organise the sales through Snapchat. As for the pills in your possession, you said you paid $2,400 for them. You explained you pay $12 for the pills, selling them individually for $20 or $200 for a 10 pack. If someone buys 50 pills, you sell them at $14 per pill. You indicated you sell around 250 pills per month on average and like to sell 50 at a time because you do not “like to sit on it”. You told police you “restocked about twice” in the last month. You also told them your name on Wickr is “Supplier53”. You admitted to police that some messages between you and another person on Wickr related to a “half ball of MDMA” which you said was worth $250. You agreed there were photos on your phone of MDMA rock.

In respect of the cash found on you, you told police $700 would be from drug sales and the remainder was what was left from a $2,200 loan your received from a mate as you were struggling. You told police you receive Centrelink benefits and do some work as a removalist for your grandfather. You also admitted that the cannabis in the backpack was yours. You told police you had last used ice about two weeks ago and that the ice pipes were yours.

It is agreed by you and the State that the volume of your trafficking increased over time with you selling about 250 pills per month in the last three months covered by the indictment. It is agreed that the amount of MDMA you sold over the period is estimated to be worth about $36,930.00.

The State has sought an order pursuant to s 11(1) (a) of the Crime (Confiscation of Profits) Act 1993 that the $2,760 found in your backpack be forfeited to the State as proceeds of crime. In addition, a pecuniary penalty order is sought in the sum of $34,170.00 pursuant to ss 11(1)(b) and 21(1) of the Crime (Confiscation of Profits) Act. This amount represents the agreed value of the MDMA you sold over the period of the indictment reduced in accordance with s 21(2) of the CCP Act by the sum of $2,760 which the State says should be forfeited. Your counsel did not object to the making of those orders.

The State submits that this is a serious case of trafficking over a fairly lengthy period of time. It is submitted that general deterrence is an important sentencing consideration in this matter. The State also submits that a specific deterrence is also an important consideration given your prior matters and that you have previously been made the subject of suspended periods of imprisonment which have been the subject of breach proceedings. The State acknowledge that you made full admissions and were cooperative with police. Your plea of guilty is also acknowledged, although it is submitted the case against you was overwhelming given the quantity of drugs and cash found on you and the messages and other information obtained from your mobile phone.

You were aged between 21 and 22 years old at the time of all of this offending. You are 25 years old now. You have spent time in custody on the trafficking matter but that has been allocated to other sentences that have been imposed upon you. You have relevant prior matters. In January 2019, you pleaded guilty to charges of selling cannabis and possession of a stolen firearm. No convictions were recorded on you giving an undertaking that you be of good behaviour for a period of 2 years. On 4 May 2021, you were fined in respect of charges of selling cannabis, MDMA, methylamphetamine and cocaine in October 2020. It appears you continued to engage in the business of drug trafficking after police intervention for those matters. Your trafficking of drugs breached the condition of the undertaking given in Magistrates Court in 2019.

Your other prior matters include numerous counts of drive whilst disqualified, burglary, stealing and unlawful possession of property. On 4 May 2021, you pleaded guilty to a large number of offences which resulted in the imposition of two periods of imprisonment which were wholly suspended, including the sentence the subject of breach proceedings I am dealing with. You were also made the subject of an 18 month community corrections order. The other suspended sentence was one of 6 weeks and imposed in relation to the driving matters. In September 2021, you were sentenced in this Court to a partially suspended period of imprisonment for serious firearms offences. On 25 January 2024, you were sentenced to a period of six months imprisonment for evading police, possession of methylamphetamine, breaches of interim and police family violence orders, common assault and breaches of bail. The six week suspended sentence imposed upon you for driving offences in May 2021 was also activated. At that time. You were released from prison on 23 May 2024. On 16 June 2023, you were made the subject of an 18-month Community Correction Order in New South Wales for a charge of taking and driving a conveyance without the consent of the owner. This related to an offence committed in April 2023.

For reasons that are not able to be explained by the State, the complaint in relation to this charge of trafficking was not made until 22 August 2023, that is some two years after you were searched and interviewed by police. You first appeared on the complaint on 27 November 2023. You pleaded not guilty in January 2024 and were committed to this Court for trial. An indictment was filed on 16 October 2024, together with the Crown statement of facts.

I turn now to the matters for which you received the nine month period of imprisonment, wholly suspended for three years. The sentence was imposed in respect of two complaints. On complaint 1263/2020 you were charged with burglary of OPSM in Moonah and stealing 121 pairs of prescription frames and sunglasses from that business to an approximate value of $20,084 on 1 January 2020. The property where you were living was searched by police on 3 January 2020. Glasses stolen from OPSM together with 46 other pairs of glasses were located in a locked safe in your bedroom. You were also charged with unlawful possession of the 46 pairs of glasses. Police estimated the value of those glasses to be approximately $9,200.00. You admitted to acting as a lookout during the course of the burglary. You told police the other glasses in your safe had been stolen by an associate and that you had stolen them from him in turn. On complaint 8943/2020, you pleaded guilty to unlawful possession of 12 pocket watches on 1 July 2020. Police located the pocket watches when they executed a search warrant at your home. They were still in a display case commonly used in a shop or market. You did not provide an explanation for your possession of the items.

It is apparent that you have committed other offences which breached this suspended sentence, particularly the matters dealt with in the Magistrates Court on 25 January 2024 when the suspended sentence for driving offences imposed at the same time was activated. I have been told those matters resolved at contest mention, and a review of the recording of the proceedings indicates that this sentence was not discussed. The State acknowledges that the breach relates to the latter part of the trafficking you were engaged in. It is submitted that your conduct represents a significant breach of the conditions of the sentence.

Your counsel tells me that you had a troubled childhood. You are one of seven children. There was some family violence in the home, but no intervention from welfare services. You attended a number of different schools before leaving at the end of grade 9. You were expelled on a number of occasions due to behavioural problems. You began using cannabis at the age of 12, and tried methylamphetamine for the first time at the age of 15. By the time you were 18, you were firmly in the grip of a methylamphetamine addiction. In 2018 and 2019 you received a diagnosis of schizophrenia and bipolar disorder. You are currently prescribed olanzapine for schizophrenia.

I am further told that at the time of the diagnosis, and up to 2024, you frequently experienced auditory hallucinations. At first, you considered that using methylamphetamine seemed to agree with you, in that you experienced a sense of success and control when under its influence, despite your ongoing symptoms of schizophrenia. I am told your mental health symptoms are now controlled, and that for the past year you have ceased using all illicit substances. I have been provided a report from your general practitioner indicating that you did not present with any drugs in your system at the time of a blood test conducted on 7 January 2025. I also note that you have been able to gain employment in your father’s business, have a new relationship and a six-month old child.

I requested that you be assessed for suitability for a home detention order. It is apparent from the Home Detention Assessment Report that you are now in stable accommodation, living in a house owned by your father. You have been in a relationship with your partner for three years with whom you have a child who was born last year. You have some casual employment with your father’s removalist business. You reported ceasing use of drugs in 2023 following an ultimatum from your partner that your relationship would end if you continued using methylamphetamine. Community Correction’s records indicate good compliance with the community corrections order made in May 2021.

Although electronic monitoring was found to be operational at your home, Community Corrections have deemed you unsuitable for period of home detention. You reside at your home with your partner. Community Corrections have identified historical incidents of family violence involving her. They are concerned that detaining you to the home may increase the risk of potential future family violence incidents given your family violence history.

The family violence history involving your current partner includes three incidents between March and November 2023. A 12 month police family violence order was issued on 9 March 2023. You pleaded guilty to three counts of common assault, the particulars of which suggest significant violence was used. These assaults were associated with breaches of the police family violence order. You also pleaded guilty to a series of assaults against a former partner which occurred in July 2021 and August 2022. Again, the particulars of those offences suggest significant violence was involved. Community Corrections also advise there were three recorded incidents of family violence between you and another former partner between August 2018 and November 2018. Community Correction’s concern is understandable in light of this family violence history.

Your preference for selling larger quantities of MDMA, that is 50 pills at a time, suggests you were selling to other street level dealers as well. In my view, the quantity of drugs you agree you sold and the period of time over which that occurred represents trafficking on a moderate scale. Drug trafficking is a serious offence. The harm drugs such as MDMA cause to the individuals who use the drugs and the community at large is significant. I accept that you were principally motivated to fund your own drug use, but this is an explanation frequently heard by this Court.

You have pleaded guilty. That plea did not come at an early stage. The case against you was very strong. I do accept, however, that your plea has had a utilitarian benefit.

These matters in combination with your personal circumstances make the sentencing task a difficult one. There is no question that you were engaged in regular and serious offending in and around 2021 when your trafficking was detected. Your drug trafficking breached a lengthy period of suspended imprisonment imposed for dishonesty matters which have all the qualities of being associated with you illicit drug use. You committed further offences later in 2021, 2022 and 2023, principally family violence and driving matters. In January 2024, you received a sentence of imprisonment which you were required to serve. It was your first significant period of time in custody. You were released from prison in May 2024. I am not aware of any other outstanding matters. It would seem that the steps you have taken to address your mental health issues, including by ceasing use of illicit substances, have resulted in some significant change. Your relationship with your partner is stable. You have casual employment in your father’s business. Importantly, you have not committed any further offences since November 2023.

Section 27(4B) of the Sentencing Act provides that if I am satisfied that the have breached a suspended sentence by committing a new offence, I must activate the sentence of imprisonment that is held in suspense and order you to serve it unless I am of the opinion that to do so would be unjust. The clear starting point prescribed by the legislative scheme is that the sentence should be activated: see Cannell v Hughes [2014] TASSC 41 per Pearce J at [14]. The question then is whether it would be unjust to do so.

Your counsel argued it would be unjust to activate the suspended sentence. In addition to the matters relied upon in the plea in mitigation generally in relation to your changed circumstances, cessation of drug use and treatment for you mental health, it was argued that the nature of the breach offence was distinct from the dishonesty offences for which the suspended sentence was imposed. It is submitted the suspended sentence was designed to deter you from committing further serious dishonesty offences. There is no suggestion you have committed such offences since it was imposed. Your counsel also highlighted that this sentence was not the subject of breach proceedings in January 2024 when your sentence for driving matters was activated. It is suggested that this was because it was seen fit to cleave out the sentence imposed for dishonesty matters at that time, and this Court should take a similar approach. It was also submitted that the breach related to end of the period during which you were engaged in trafficking. Your counsel acknowledged you should have stopped, however, there is no suggestion of further trafficking since the search conducted in July 2021. This argument overlooks that your counsel had submitted during the sentencing hearing that the volume of your trafficking had increased in the last three months of the period set out in the indictment. On that basis, your offending was escalating during the period of offending that breached the suspended sentence. Ultimately, your counsel submits activating the sentence and, indeed, imposing a sentence of imprisonment for the drug trafficking would be wholly unproductive in circumstances where you have taken significant steps towards your rehabilitation.

In Tanner v Brown [2011] TASSC 59, Wood J observed at [88] that “what is unjust and what factors might give rise to such an opinion is left to the court to determine. Parliament has not sought to constrain the court’s consideration of this question by reference to a list of criteria or by confining, in any way, the category of cases that may qualify as unjust. There are no words of limitation upon the exception of unjust…The question is to be answered by reference to the circumstances of each case and the court’s assessment of the weight to be given to those circumstances.” At [94], Wood J further noted that when assessing the “question of whether it would be unjust to activate the sentence ‘the objective of the suspended sentence option as reformative as well as penal is to be borne in mind. Thus, relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation.”. Other relevant factors noted by her Honour include “disproportion between the original offence and the breaching offence or offences; whether the nature of the offence suggested that the offender has lapsed into a non-law-abiding way of life; and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed.”

In undertaking this assessment, the penal nature of the suspended sentence must be given weight. It must be recognised that ordinarily a suspended sentence is meant to operate as a last chance and there are sound reasons in principle for activating the sanction in the event the person breaches it: Tanner v Brown at [96] per Wood J.

I consider the following circumstances to be particularly important in this case. First, you were trafficking drugs in the period before and immediately after the imposition of the suspended sentence. Engagement in further and serious criminal conduct immediately following the imposition of a such a sentence is a matter that ordinarily strongly militates against the formation of the opinion that activation of the sentence would be unjust. Second, while I accept that trafficking is not an offence of the same character as the dishonesty offences that lead to the imposition of the suspended sentence, it is clear to me that there was a significant connection between them. Your significant drug issues no doubt motivated you to obtain money to fund that habit through illicit means, namely through offences of dishonesty and dealing drugs. Third, you engaged in other serious criminal conduct in the period, namely serious driving and family violence offences. All of these factors weigh in favour of the activation of the sentence.

There are, however, a number of other matters which pull in a different direction. It is significant, in my view, that there was a significant delay in bringing forward the charge of trafficking. Your offending was detected on 21 July 2021. You made relevant admissions when interviewed on that dated. The complaint was not laid for over two years. You first appeared on the complaint on 27 November 2023. It is now almost four years since you were apprehended by police. The delay is not due to any fault on your part. It is also significant that breach proceedings were not brought in respect of the suspended sentence when you were dealt with by the Magistrates Court in January 2024. No adequate explanation has been provided for this oversight. You have since served a sentence of imprisonment and been released. You have not offended since. It would seem that period of imprisonment was the wake up call you needed. You have made significant changes to reduce your risk of reoffending.

I give these matters particular weight and conclude it would be unjust to require you to serve the period of nine months imprisonment. I do not, however, consider it appropriate to make no order in respect of the application. I intend to impose a substituted sentence.

In respect of your trafficking matter, I would have imposed a period of imprisonment. I have, however, determined it would be appropriate to impose a home detention order. I do so despite Community Correction’s assessment that you are unsuitable for such an order due to the family violence history outlined above. I note that you are not being sentenced for family violence, violent or sexual offences. I am also not of the opinion that there is a significant risk that you may commit a violent offence, or a sexual offence, during the operational period of the order. I appreciate the matters raised by Community Corrections. Your last offence however occurred in November 2023. Your last offence involving actual violence was committed in March 2023. There have been a number of relevant changes in your circumstances since that time. I accept your partner consents to a home detention order being made in relation to you. I consider such an order will be onerous and will adequately address the need to deter you and others from similar offending while facilitating your ongoing rehabilitation.

I will also make a home detention order in respect of the breach proceedings.

Justin David Radcliffe, you are convicted of the charge of trafficking. You are sentenced to home detention on that matter for an operational period of six months. The home detention order takes effect from today. In addition, and pursuant to s 27(4E)(b) of the Sentencing Act, I order that a home detention order with an operational period of six months take effect in place of the 9 month suspended sentence imposed on 4 May 2021 in the Hobart Magistrates Court. This home detention order operates cumulatively to the home detention order imposed in relation to the trafficking charge. In effect, you will be subject to a home detention order for a total of 12 months.

The terms of the home detention orders will be set out in a written document that will be provided to you. All core conditions of the home detention orders will be in force for the operational period of the orders. Those core conditions include:

You must not commit an offence that is punishable by imprisonment;
You must reside at the home detention premises, namely **address**;
You must be at the home detention premises at all times unless approved by a probation officer;
You must permit a police officer, probation officer or prescribed officer to enter the home detention premises;
You must permit a police officer to conduct a search of the home detention premises, conduct a frisk search of you at the home detention premises or at any other place or premises; and take a sample of a substance found on the home detention premises or on your person;
You must comply with any reasonable and lawful directions of a probation officer or prescribed officer, including any directions as to your kind of employment, or your place of employment;
You must submit to electronic monitoring including by wearing or carrying an electronic device;
You must not, without reasonable excuse, tamper with, damage or disable any device used for the purpose of electronic monitoring;
You must not knowingly permit, without reasonable excuse, another person to tamper with, damage or disable any device used for the purpose of electronic monitoring;
You must, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of an illicit drug;
You must, if directed by a probation officer or a prescribed officer to engage in a personal development activity, counselling, or treatment, engage in the activity, counselling or treatment in accordance with any directions given by the probation officer or prescribed officer.

Your home detention orders are also subject to the following special conditions:

You must attend the Community Corrections office at Hobart for induction onto this order during normal business hours and no later than 10.00am on 20 June 2025;
You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times;
You must submit to the supervision of a Community Corrections officer as required by that officer;
You must not take any illicit or prohibited substances. Illicit and prohibited substances include:
Any controlled drug as defined by the Misuse of Drugs Act 2001 (Tas);
Any medication containing an opiate, benzodiazepine, bupropion, or pseudoephedrine unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
You must not consume alcohol, and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test, or other test, for the presence of alcohol;
You must take medication as required by a psychiatrist or a medical practitioner.

I also make an order pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993 that the $2,760 seized from you on 21 July 2021 be forfeited to the State as proceeds of crime. I also, in light of you admissions, make a pecuniary penalty order in the sum of $34,170 pursuant to ss 11(1)(b) and 21(1) of the Crime(Confiscation of Profits) Act. I am satisfied the matters of which I need to be satisfied are made out. I also make a forfeiture order pursuant to s 38 of the Misuse of Drugs Act in respect of the following items on the property seizure record dated 21 July 2021. Those items are 1, 1(a), 1(b), 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 20.