STATE OF TASMANIA v GLENN WILLIAM SEABOURNE BRETT J
COMMENTS ON PASSING SENTENCE 17 MAY 2019
Mr Seabourne, you have pleaded guilty on complaint to 1 count of trafficking in a controlled substance, which was specified to be MDMA and cocaine.
The trafficking in question was conducted over a period of 16 months, between 1 January 2017 and 16 of May 2018. It came to an end when police executed a search warrant at your home and found some drugs and drug related paraphernalia. Police also found some money, which you concede was the proceeds of the sale of drugs. A search of your mobile telephone revealed various messages consistent with the operation by you of a drug selling business. The full scale of the business was revealed by your admissions during the course of the subsequent police interview. According to those admissions, you commenced selling MDMA about 18 months before the interview, which is slightly longer than the period charged on the complaint. For the first 6 months, you sold at the average rate of 50 MDMA tablets per week. This increased to an average of 100 tablets per week for the remaining 12 months. The sales were usually made in nightclubs around Hobart and often in packets of 10 tablets. You would arrange the sales by face-to-face contact at the relevant venues. Occasionally, you would sell more than that at one time, for example 50 tablets and, on one occasion, 100 tablets. The larger sales were usually to enable someone else to distribute the drugs at a social function. The sale price of the tablets was $25-$30 each, although this might reduce if you were selling more than 10 at a time.
You were also selling cocaine during this period, although in substantially less quantity than the MDMA. It is not clear from your admissions how the sale of cocaine started, but at least by the time of your arrest, it was related to your own use of that drug. You started to use cocaine approximately 6 to 12 months before your arrest, which is after you had commenced trafficking in MDMA. You quickly developed a serious addiction. According to your admissions to police and your counsel, as at the time of your arrest, much of the money that you made from the sale of drugs generally was expended in the support of your cocaine habit. The cocaine sold by you was usually a modest portion of a larger quantity which you had purchased for your own consumption.
I am satisfied that you did develop a problem with cocaine and you have given evidence about that. I have regard to the matters that have been referred to in the drug treatment order assessment report and I have regard to the statements you have made to police. It is also consistent with the over-arching nature of the drug selling business which involved the two different types of drugs.
The admissions generally are also consistent with the evidence found by police during the search. Police found in total 248 MDMA tablets, 1.1g of crushed MDMA and 3.1 g of cocaine. The paraphernalia included material normally associated with a drug trafficking business, including digital scales and a significant quantity of snap lock bags. The evidence therefore establishes that you were conducting a significant and consistent business in the retail sale of MDMA and cocaine throughout the entirety of the charge period. In your interview, you estimated that your gross turnover from drug sales averaged between $12,000 and $13,500 per month. You used this money for living expenses, as well to fund and support your cocaine habit. As already noted, during the last 12 months of the relevant period, you were selling on average 100 MDMA tablets per week and 5 g of cocaine every 2 to 5 weeks. A simple calculation produces the result that over the period that you conducted this business, you sold between 5000 and 6000 MDMA tablets. It is now agreed that your gross turnover during the period specified in the indictment was $161000. These figures are relevant to an assessment of the objective seriousness of the crime, and I have also been asked to use those calculations as a basis for the assessment in respect of an application for a pecuniary penalty.
You are 30 years of age, and you were 28 when you commenced to traffic in drugs. Your criminal history consists of a few minor traffic offences, and a more serious charge of drink-driving. You have no prior convictions for drug related activity. You were educated to grade 12 standard and have a good work history. Your counsel has told me, and you have given evidence, that your involvement with drugs occurred in the context of some mental health issues, in particular depression, which was largely a consequence of the sudden and relatively traumatic end of a long-term relationship about four years ago. Your counsel strongly asserts that you have nothing to show for your drug taking activity, as almost all of any spare money was spent on the purchase of cocaine. It is clear that the funding of the purchase of cocaine for your own consumption and in order to support what you now accept, and what has been consistent with the opinion I have been given, and what was a problem with the use of that drug, was a significant motivation for the conduct of the drug trafficking business and a significant component of it. Your counsel submits that you are currently in debt to financial institutions in the sum of $24,000, and this has not been contested by the prosecutor, and that evidence is also consistent with the fact that you were not making a massive profit in terms of the accumulation of assets out of this business. I should say also that there is no other evidence presented to me that would contradict the fact that all of the money that you earned from this business was expended by you, and a further considerable component of it was expended on the purchase of drugs for your own consumption.
The prosecution has applied for orders under the Crime (Confiscation of Profits) Act 1993. In particular, it seeks the following orders:
1 A forfeiture order pursuant to s 16 of the Act in respect of the money found by police during the search, which was in the total sum of $3600. It is asserted that this money is tainted property in that it represents the proceeds of the trafficking. Your counsel has not disputed this, and does not oppose the order.
2 A pecuniary penalty pursuant to s 21 of the Act. The prosecution originally sought a higher figure, but now seeks an order in the agreed sum of $161,000. This application was initially opposed by you, but you have now indicated that you will consent to the order.
Notwithstanding your consent, it seems to me to be prudent to record my view about this question. A number of decisions of the Court of Criminal Appeal have established the following principles in respect of an application for a pecuniary penalty order in a case such as this. They are:
1 I have a discretion, unfettered by statute, as to whether or not I should make an assessment of the value of benefits derived by you from the commission of the offence and a similar discretion as to whether or not to make the pecuniary penalty order.
2 If I decide to conduct the assessment and make the order then I have no discretion in respect of the quantum of the order. It must be in the sum so assessed.
3 A matter which has been considered relevant to the exercise of discretion in respect of whether an order is made is the financial circumstances of the offender and, in particular, whether there is any realistic prospect of the offender ever paying the penalty or even a small portion of it. In relation to this question, the legislation does not require the court to engage in a nicely balanced enquiry as to the offender’s means. On the other hand, if there is a reasonable prospect that the offender will acquire assets or income in the future, then it is consistent with the legislative intention that an order be made. The factors which govern the exercise of discretion upon imposition of a fine have no part to play in respect of a pecuniary penalty order.
4 Such an order, if made, may be taken into account in the exercise of the sentencing discretion. In other words, the punitive impact of the penalty can be regarded in assessing the severity of any other punishment which is imposed in the sentence. It follows, therefore, that it is appropriate to consider and determine the application for the pecuniary penalty before finalising the assessment of sentence.
The starting point is whether I should make an assessment of the value of the benefits derived by the offender from the commission of the crime. In this regard, I take into account the following matters. This was a long-running and profitable business. The profits were derived from the commission of a serious offence, which effectively resulted in money being obtained by the offender in exchange for the distribution of illicit substances. Cocaine is a highly addictive drug and ecstasy less so. However, ecstasy although consumed usually in social situations, is often consumed by persons with little experience in taking drugs and sometimes on a very casual basis. The consumer is entirely reliant on the manufacturer and seller with respect to the safety and composition of the drug. The risks involved in such an activity are obvious, and actual tragic consequences have received much media attention. As with all other illicit drugs therefore, the dissemination of drugs throughout the community is directly associated with the creation of associated misery and significant risks to health and safety. In these circumstances, it is entirely appropriate to make an assessment of the value of the benefits derived by the offender from the conduct of such a business.
The said assessment is governed by s 22 of the Act. That section makes two things clear. Firstly, a matter relevant to the assessment is the money that came into the possession of the defendant by reason of the commission of the offence. Secondly, subs (6) provides that in calculating the value of benefits derived by a person from the commission of a serious offence, any expenses or outgoings of the person in connection with the commission of the offence are to be disregarded. I reject Mr Scott’s submission that I should only assess net profit, that is gross proceeds less the cost of the purchase of the drugs. Further, I do not accept the submission that I should take into account the money which was spent by the offender on the purchase of cocaine for his own consumption. The manner in which an offender chooses to spend the money derived from commission of a serious offence is not a matter which can or should reduce the assessment of the benefits derived by him from the offence. Finally, having regard to s 21(2) of the Act, it is necessary to reduce the assessment by the amount of money which will be the subject of the forfeiture order.
Having regard to the agreed position as to the extent of trafficking and money received during the course of trafficking, I assess the value of the commercial benefits derived by the defendant from the commission of the offence at $161,000. I reduce that assessment by $3600 having regard to the forfeiture order. The net assessment is $157400.
I am satisfied that I should exercise my discretion to make the pecuniary penalty order. The same factors which were relevant to the decision to make the assessment are also relevant to this question. However, a further matter of relevance is the financial capacity of the defendant to pay the penalty. I accept that he is currently in debt and does not have the immediate capacity to pay the assessed sum. However, I am satisfied that he is likely to be in a position to obtain employment and thereby obtain income and funds in the future. He is still young and has a reasonable work history and a good industrial record. Mr Scott initially submitted that if the order is made, the defendant is likely to declare himself bankrupt and this will prevent recovery of the pecuniary penalty. However, counsel now accepts that s 82(3) of the Bankruptcy Act (Cwlth) provides that a penalty or fine imposed by a court in respect of an offence is not a debt provable in bankruptcy. The liability will, therefore, survive any short-term financial difficulty, including the bankruptcy of the defendant. Having regard to all of the circumstances, I am satisfied that I should make the order.
The next issue that arises is whether a drug treatment order is an appropriate sentencing option in this case. I acceded to the defence request to order an assessment report about this option. That report has assessed Mr Seabourne as being eligible and suitable for such an order. With one exception, it is uncontroversial that the statutory preconditions of such an order are met in this case. In particular, this is not an offence in respect of which such an order is expressly precluded, the material would indicate that you have a demonstrable history of illicit drug use and that that drug use has contributed to the commission of the offence. Finally, if I do not make such an order, I would intend to impose a sentence of imprisonment which would not be suspended in whole or in part.
There are two questions that arise. Firstly, does Mr Seabourne have a demonstrable history of illicit drug use and whether that drug use has contributed to the commission of the offence, and secondly, whether I am satisfied that in all the circumstances of the case, it is appropriate to make the order. In relation to the first, I have little difficulty concluding that he does have a demonstrable history of illicit drug use and that that illicit drug use did contribute to the commission of the offence. I accept, what seems to me to be almost the unchallenged position that he was using cocaine during the period of commission of the offence, his use of cocaine and his cocaine habit was a primary motivation for him commencing to traffic in drugs. It may well be that during the course of the commission of the offence he actually was successful in selling MDMA at a level which produced more income than was necessary in order to fund his habit, but there cannot be any serious dispute that his use of cocaine during the relevant period did contribute to the commission of the offence. Further I take into account his evidence concerning what was a lengthy history of what might be described in his early years as casual drug use, but in my experience it is not unusual that that is how drug problems develop. By the time they have got to the point where somebody is either committing serious crimes of property or drug trafficking, as in this case, in order to fund a habit in relation to the use of illicit drugs I think it can be taken as a given that by that stage they have reached the point of having a problem with respect of their drug use. I don’t actually have to find that he has a problem with respect to his drug use, the Act requires a demonstrable history of illicit drug use and he clearly has that. It also requires a finding that drug use has contributed to the commission of the offence, I agree with Mr Ogden’s quite proper concession that that terms does not use the term substantial contribution or qualify the level of the contribution. What is required is a matter of common-sense that the conclusion that the drug use has contributed to the commission of the offence and accordingly that then is reflected in the fact that it is an appropriate sentencing option in order to deal with the crime at hand. I am satisfied that those matters are made out.
In relation to the further question of whether it is appropriate to make the order, Mr Ogden has raised a legitimate point about the difference between the level of drug use and the amount of money being received from this business, but I reiterate the point I made initially that really I am concerned with his initial motivation in getting into the business and continuing it on for this period of time. I think that his illicit drug use was wound up and probably inextricably interwoven in his motivations for carrying on this business. What goes hand in hand with illicit drug use is often some quite complex underlying psychological factors and dynamics, and I do not think there is any difference in this case. The depression, the state that his life was in, his inability to properly perceive that what his friends and family were saying about his life was true, are all factors which would indicate that drugs were playing an integral role in his on-going offending. So, I am satisfied from that point of view that a drug treatment order would be appropriate.
A further question, and this is a very real question in my mind, is a consideration of the objective seriousness of the crime and the need to emphasise denunciation and general deterrence, and the related question then of the length of the head sentence. As already noted the period over which the trafficking took place and its volume, places this case into a relatively serious category. On the other hand, as Mr Seabourne’s counsel has pointed out, this was not a case of a highly organised enterprise motivated solely by profit. He acted as a sole trader, selling at street level to the end user for the vast majority of the time. The customers were often people known to him. There are also a number of other mitigating factors. These include that, at least in the latter part of the period of trafficking, he was largely motivated by the demands of his own drug habit. I also have regard to his significant cooperation with the authorities. Much if not all of the evidence of the extent of the trafficking comes from his admissions to police. He also facilitated the police investigation by providing pin numbers to his mobile telephone, which then enabled police to access the messages that I was told about on the Crown facts. Finally, he has entered a plea of guilty at an early opportunity.
As I explained in the decision of Joseph, a drug treatment order is not an appropriate sentencing option if the custodial period would exceed two years. Were it not for the various mitigating factors, the head sentence in this case would in all probability have exceeded this period by a significant amount. My preliminary view as previously expressed was that the case was too serious to enable real consideration to be given to a DTO. However, when I take into account the mitigating factors already discussed, and consider them together with two other important considerations, I am of the view that a custodial period of two years is appropriate in this case.
The first factor to which I refer is that Mr Seabourne has now been in custody since 4 February 2019, which is a period of just over 3 months, approaching 4 months. This period should be taken into account as part of the punishment that he has endured, but cannot be reflected in the custodial period of a DTO because there is no way to backdate that period. Accordingly, a two-year custodial period will equate in this case, in practical terms and punitive effect, to a sentence of two years and almost 4 months.
The second significant factor, in my view, is the pecuniary penalty order. As already noted, the punitive effect of this order should be taken into account in the assessment of sentence. The pecuniary penalty in this case is a substantial real liability and from a practical point of view, will have a significant punitive effect on Mr Seabourne. I accept that he has not retained any of the money derived by him from the commission of the crime, apart from that found and seized by the police. This debt will be something that he will probably be living with for many years.
Having regard to all of the circumstances of the case. I am satisfied that a drug treatment order is an appropriate sentencing alternative. One of the factors which has strongly influenced me has been the report and the evidence of the author of the report in relation to that. Having considered the matters that were placed before her by the prosecution, Miss Eschler is still of the view that Mr Seabourne is eligible and suitable for a drug treatment order. That assessment has been made with an understanding of the background circumstances of this case and the extent of his both admitted and actual drug problem at the time that he came into custody.
It is true that he has no significant prior convictions, but this of course is a matter that goes in his favour in terms of assessing the underlying sentence.
In relation to his commitment to a drug treatment order, which I think is also an important factor, firstly, I accept his evidence, and secondly I rely on the evidence of the author of the report in relation to her experienced assessment about cutting through the noise and the perception or self-perception that a person coming onto a drug treatment order may have in making a realistic assessment of his commitment.
There are some other facts. Since he was arrested for this crime, as I understand it, there is no allegation of any further offending since in respect of these charges, and he will have the support of his family, in particular his mother, with whom you will live under the order. General deterrence is, of course, an important sentencing consideration and in most cases of serious drug trafficking, a drug treatment order would not be appropriate. However, in this particular case, I think that the balancing of various sentencing factors leads to the conclusion that such an order is appropriate. In particular, I think that in this case there is a genuine commitment by Mr Seabourne to put this offending behind him, put his problems with drugs behind him, and in those circumstances he is likely to benefit from the very intensive supervision that he will receive under a drug treatment order.
My assessment is that such an order has a reasonable chance of attaining its objectives in this case, which I have to say, can’t always be said. Further, the order itself is not without some punitive effect, particularly as he will be subject to a stringent curfew condition, and will be required to comply with the various requirements of the order for some years. I again reiterate the punitive impact of the pecuniary penalty and the time which you have already served in custody. I am satisfied, therefore, that in all the circumstances of the case, it is appropriate to make the order and that is what I intend to do.
The orders I make are as follows:
1 Mr Seabourne is convicted of the crime to which he has pleaded guilty;
2 I make the following orders pursuant to the Crime (Confiscation of Profits) Act 1993:
a That the sum of $3600 seized by police on 16 May 2018 be forfeited to the State of Tasmania;
b That he pay to the State of Tasmania a pecuniary penalty in the sum of $157,400.
c I make the forfeiture order sought by the prosecution pursuant to the Misuse of Drugs Act, in respect of the property seized during the search. This order is to be stayed for a period of 14 days.
d I make a drug treatment order, pursuant to s 27B of the Sentencing Act. I provide that the custodial period in respect of that order, the term of imprisonment to which he is sentenced and which will be incorporated in the order as the custodial period, is a period of 2 years. He is not required to serve all or any of the custodial part of the drug treatment order unless he is ordered to by this Court in the event that he does not comply with the following conditions of the drug treatment order:
(i) You must not in Tasmania or elsewhere, commit another imprisonable offence;
(ii) You must attend the Magistrates Court of Tasmania, Hobart on 30 May 2019 at 10am and thereafter attend the Magistrates Court or this Court as and when directed by the court;
(iii) You must report to a court diversion officer at Community Corrections at Hobart within 2 clear working days of the making of this order;
(iv) You must undergo such treatment for your illicit drug use problem as is specified in this order, and from time to time, specified by the court;
(v) You must report to, and accept visits from, your case manager or court diversion officers;
(vi) You must, unless there are special circumstances, give your case manager at least 2 clear working days’ notice of any change of address;
(vii) You must not leave Tasmania except with the permission granted, either generally or in a particular case, by the court;
(viii) You must comply with all reasonable directions of your case manager and court diversion officers concerning the core conditions and program conditions of this order.
e I impose the following program conditions as part of the order:
(i) You must submit to drug testing as directed by your case manager or court diversion officers;
(ii) You must submit to detoxification or other treatment, whether or not residential in nature as directed by your case manager or court diversion officers;
(iii) You must attend vocational, educational, employment, rehabilitation or other programs as directed by your case manager or court diversion officers;
(iv) You must submit to medical, psychiatric, or psychological treatment as directed by your case manager or court diversions officers;
(v) You must not use any illicit drugs;
(vi) You must remain contactable by telephone at all times and notify your case manager or court diversion officer immediately of any change of telephone number;
(vii) You must abstain from all synthetic substances, mood or mind altering substances and unidentified substances, and submit to testing for such substances as directed by your case manager or court diversion officers;
(viii) You must refrain from the consumption of alcohol, and submit to alcohol testing as directed by your case manager or court diversion officers;
(ix) You must not associate with any person who is using or known to be using illicit substances;
(x) You must not use any prescription medication without approval from a General Practitioner of court diversion officer and you must only take prescribed medication in accordance with directions;
(xi) You must obey all directions of your case manager or court diversion officer with respect to attending case management appointments, counselling sessions, medical appointments or assessments, urinalysis or any other appointment or assessment;
(xii) You must reside at …. during the period of the order and be present at that address between the hours of 9pm and 7am daily, unless you have obtained prior written approval from your case manager or court diversion officer to be absent.