STATE OF TASMANIA v DAVID SMITH 6 AUGUST 2021
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Smith has pleaded guilty to one count of trafficking in a controlled substance contrary to s 12(1) of the Misuse of Drugs Act 2001. The charge alleged that Mr Smith trafficked in methylamphetamine (“Ice”) and cannabis. On 25 February 2021, Mr Smith’s then counsel, Mr Brinken, applied under s 385A of the Criminal Code to enter pleas of guilty in respect of summary offences which concerned conduct connected with that described in the single count referred to above. Counts 1, 2 and 3 of the complaint concerning summary matters are subsumed within the indictment on the single charge of trafficking in a controlled substance. The remaining counts relate to personal possession and the use of Ice and cannabis by Mr Smith.
The relevant facts contained in the Crown statement of fact show the following. Police searched Mr Smith’s premises on 1 May 2019 and found drug paraphernalia, including 76.5 grams of cannabis and 2.55 grams of Ice and multiple handwritten tick sheets. On 25 June 2019, police located various drug-related items at Mr Smith’s premises, including a clip lock bag containing 1.66 grams of Ice, one used cannabis pipe, 4.13 grams of cannabis mix, a quantity of new clip lock bags, one used cannabis grinder, one used Ice pipe, cannabis seeds, a tick sheet, a grinder and a spiral notebook containing ticks. The tick list showed that Mr Smith was owed $9,725 from more than 20 people. The bag containing Ice was sent for forensic processing, consisting of DNA and fingerprint analysis, and had a high grade match for Mr Smith on the bag.
Mr Smith told police that he last sold Ice on 24 June 2019 when he sold one point for $50 in Ulverstone. He said that he purchased a half ball of Ice for $550, and made up deals from it as needed. A ball weighs about 1.75 grams. He said he went through a half ball every three or four days. He purchased drugs for his own use from the proceeds of his sales. He told police that he had a drug debt of $7,400, and was owed more than $10,000. He attempted to reduce his level of dealing after the first visit from the police. Mr Smith’s sales of cannabis are very small. He sold it to finance his own use of the drug.
Mr Smith’s criminal history include a prior trafficking charge in New South Wales in 2003. The sales were small in quantity, and ranged over a three month period. He has several prior convictions for possessing and using controlled plants and drugs, but apart from the 2003 New South Wales charge, this is his only offence for trafficking. The estimated value of the Ice sold by Mr Smith in the approximate two month period in the indictment was $11,250 for Ice and $450 for cannabis.
Mr Smith is 52 years of age. He has had an acquired brain injury since 2006. He was referred to Mr Damien Minehan for a forensic psychological assessment. Although found to be suffering from mood disorder, Mr Smith was not considered by Mr Minehan to have been affected by mental impairment in committing the offences for which he is being sentenced, especially the major charge of trafficking in a controlled substance. Mr Minehan considered that Mr Smith’s offending involved “significant organisation and planning and a sustained period of goal-directed activity”. Mr Minehan did not believe that any mental impairment suffered by Mr Smith affected his offending. He recommended that Mr Smith re-engage with Mental Health Services and avail himself of alcohol and drug rehabilitation.
Mr Smith’s offending, as set out in the indictment on the trafficking charge, occurred over a relatively short period of time, but was calculated and business-like and involved the insidious drug Ice, which has done so much to destroy so many lives in Tasmania and elsewhere. His offending was objectively serious, notwithstanding that it involved a relatively small scale operation. It was an organised operation which involved planning.
In setting the sentence, I take into account the principles of general and specific deterrence, and the denunciation of an activity that ruins lives. I also take into account Mr Smith’s guilty plea, and sentences in recent like matters. Mr Smith has been in custody for 49 days as a consequence of failing to appear in this matter. In addition he has been held in custody for an additional 116 days, not attributable to any sentence. 165 days in total must be deducted from any sentence.
In all the circumstances, I convict Mr Smith and impose a penalty of six months’ imprisonment, with effect from 23 February 2021, being 165 days before today’s date to take into account the time spent in custody, and to enable Mr Smith to be released on 23 August 2021.