SMITH, M A

STATE OF TASMANIA v MICHAEL ANDREW SMITH 8 FEBRUARY 2022

COMMENTS ON PASSING SENTENCE GEASON J

You have pleaded guilty to a single count of trafficking in cannabis and methylamphetamine, between 22 March 2017 and 31 August 2017. Between those dates you were involved in the business of dealing in those two drugs. I am also sentencing you on a number of summary matters pursuant to s 385A of the Criminal Code: On complaint 5202/17 you have pleaded guilty to counts 2, 5 and 7; on complaint 54662/17 you have pleaded guilty to counts 1, 4, 5, 6, 7, 8 and 9; on complaint 54661/17 the State tenders no evidence.

On Wednesday 22 March 2017 at approximately 11.15am members of the Western Drug Investigation Services executed a drug related search warrant at an address in Ulverstone. They scaled a large locked gate. You were not present at the time, but you returned home prior to the search commencing. Police located and seized the following.

77 grams of cannabis leaf
60 grams of cannabis bud
In various locations 1.7 grams on the floor inside the back door
710 grams on a tray outside the back door
5 grams on a bench in the laundry
.2 of a gram in a safe
.2 grams on the kitchen bench

They located a quantity of sandwich bags and snap lock bags. They found 12.8 grams of methamphetamine in a plastic bag made up of 4 snap lock bags.

A double barrel from a 12 gauge shotgun was located behind the bedroom door. Attached to the appropriate firearm parts it was capable of propelling a charge of shot from both barrels which could inflict a lethal wound upon a human being (count 7 on complaint 5202/17).

In aggregate a trafficable quantity of cannabis and methylamphetamine found during that search. A trafficable quantity of cannabis is 1kg and a trafficable quantity of methylamphetamine is 25 grams.

Following that search you attended the Devonport Police Station where you agreed to participate in an audio visual record of interview. Under caution you made a number of statements to police including, that you are also know by another name, Ian Clark; that you own the cannabis and that you planted it from a feminized cannabis seed in 2016. You told police you harvested the plant approximately a week and half before the search; the cannabis bud and leaf were from the harvested plant and had been left out to dry and that the majority of the cannabis was for personal use. You said you had sold cannabis to 3 friends over the past 6 months for a total value $150 (count 2 on complaint 52020/17); On 3 occasions you sold cannabis by exchanging between 2 and 5 grams of cannabis for $150, (also part of count 2 on that complaint). You said to police you had not weighed the cannabis; the money you received was spent on rent and food; and that you last smoked cannabis about a week before the search, (count 5 on complaint 5202/17). You smoked it with a mix of tobacco using a bong; that you smoke up to an ounce of cannabis a week; you had a bad back and it helped you sleep better at night. You denied owning the methylamphetamine. You denied using the methylamphetamine. You denied having ever sold methylamphetamine and that another person had brought the drug to your house safe keeping. You said you knew it had been at the house and had handled the bag in which it was contained. You believed that the owner intended to sell it and did not know its value.

You said that you found the firearm part at the Ulverstone tip site about 5 months before. You told police you did not notify staff at the refuse station of your find and did not hold a licence to possess it. You were advised by police that you would receive a summons for this offending.

In 2017, Western Drug Investigation Services were conducting an investigation into the trafficking of controlled substances in Tasmania by you and other persons. As part of that investigation, police utilised telephone intercept techniques and obtained lawfully intercepted material between you and an associate, Kelly Navarro. That material consisted of text messages and phone calls relating to the sourcing and sale of methylamphetamine between 11 June 2017 and 8 August 2017. The Crown assert that these phone calls and interactions involve discussions about methylamphetamine and its sale.

On the afternoon of 2 August 2017, members of Western Drug Investigation Services were conducting surveillance at the Argosy Motor Inn in East Devonport, as a result of information obtained during the telephone intercepts. Police observed a Mitsubishi Triton arriving into the car park of the Motor Inn just after 3pm. You were identified as the driver. Ms Navarro who arrived in a separate vehicle approached your vehicle on foot and entered that vehicle. You drove away from the Motor Inn in that vehicle, before returning 10 to 15 minutes later. Ms Navarro got back into the vehicle in which she arrived and left the Motor Inn. Shortly afterwards police intercepted her vehicle and she was found to be in possession of 4.5 grams of methylamphetamine. The Crown assert this is an occasion where you facilitated the sale of methylamphetamine between a supplier and Ms Navarro which you accept by your plea of guilty.

At approximately 9:40am on 31 August 2017, police executed a search warrant at an address in Gawler. No one was present at that address. You were contacted by telephone and asked to return. You returned at about 10:23am and you were advised of your right to view the search which was then undertaken.

Police located and seized:

4 trays containing newly planted cannabis seeds. Count 1 on complaint 54662/17. These were later grown by police under controlled conditions and resulted in 123 seedlings.
56 grams of a white crystal substance, which later tested negative for any common drug and was believed to be a cutting agent.
82 grams of a white crystal substance, which later tested negative for any common drugs and was thought to be further cutting substance.
A quantity of unused sandwich size snap lock bags.
A set of electronic scales with cannabis residue on the weight plate on top.
2 snap lock bags containing a pink crystal substance that subsequently tested negative for all common drugs.
A firearm forestock, count 8 on complaint 54662/17
6 grams of cannabis leaf
A smoking device, count 6 on complaint 54662/17
Ice pipe, count 7 on that complaint
A tick sheet located in a notebook on the kitchen bench
9 grams of cannabis bud
Air rifle pellets
1 grams of cannabis
21 x 12 gauge cartridges
A second set of electronic scales on the kitchen table upon which Forensic Science Service Tasmania later detected the presence of methylamphetamine on the weighing plate.
A double barrel shot gun stock and action located in the spare room. Count 9 on complaint 54662/17
A 12 gauge shot gun shell
Your mobile telephone. That phone was subsequently analysed. On it there were messages on Facebook messenger and other text messages which the Crown assert predominately relate to the sale of cannabis between 26 March 2017 and 27 August 2017 which you have accepted by your plea of guilty. I will publish those messages in my formal comments on passing sentence.

At the conclusion of that search you attended the Devonport Police Station for the purpose of participating in a video recorded interview. Under caution you made a number of statements to police including that the trays contained cannabis seeds that you had planted approximately 4 weeks earlier; that they were for personal use and you intended to re-plant them in the grounds of your house. You said you thought an ounce of cannabis was worth $250; that the scales with cannabis residue on top of the pantry were yours; that they would have had cannabis residue on them from when police searched you on 22 March 2017 but they had not been used since; you had not weighed any cannabis at that address and that the cannabis leaf could have come from your other house. You admitted having sold cannabis on occasions by exchanging your “bush cannabis” for hydroponic cannabis. You said the notebook containing the tick sheet was yours and that you had had it for a number of years; that it contained notations relating to the sale of cannabis including from the period when you lived at a different address; that you smoke approximately 4 grams of cannabis every weekend, made up of about 8 joints and that you use it for pain relief. The electronic scales which tested positive for methylamphetamine were yours, but you denied using those scales to weigh methylamphetamine. You said the white crystal substances were a cutter used for the methylamphetamine; you had been using methylamphetamine for approximately a month, and the last time you used it was the preceding weekend; that you smoke cannabis for your back and used methylamphetamine as you hoped to lose weight. You said it been a long time since you had sold any cannabis as you had not had any.

In relation to the Argosy search on 2 August 2017, you said that you did not make the necessary arrangements but took another person there to meet Kelly Navarro at the Argosy Motor Inn; that you stayed in your car while the sale of methylamphetamine occurred at the back of your ute; that Ms Navarro contacts you several times a day for methylamphetamine; that you never sold methylamphetamine to her, but you admitted that you would arrange for her to be supplied with methylamphetamine by putting her in contact with someone else who you declined to name. You said you did that to help the supplier who was your friend and had been co-ordinating those arrangements for approximately 5 months. in return you received a little bit of methylamphetamine for yourself and you were be able to borrow money from the supplier, for example to purchase a car. You said you helped other people by sourcing methylamphetamine for them and that in the preceding five months you had helped out five people in that way. You said that you operated as Navarro’s middle man and helped her out two to three times per week. You told police that on twenty occasions over a five month period you helped people this way but you do not know if the transactions went through and it was on only in the last three months that you got more in to the methylamphetamine side of things. You told police that a half ball is the smallest amount that people would source. You said that you owed $7,000 for the 4 bags of methylamphetamine that police had seized. You made a number of statements to police in relation to the telephone intercept messages.

At the conclusion of the interview you were charged, processed and bailed. As I said at the commencement of these comments the Crown assert that you are in the business of drug trafficking during the period of the indictment. It is constituted by the following activities:

Possessing cannabis for sale on 22 March 2017 and 31 August 2017;
Possessing methylamphetamine for sale on 22 March 2017;
Selling cannabis between 22 March 2017 and 31 August 2017 to an unspecified number of people consistent with your admissions together with the messages that were found on your phone;
Guarding or concealing methylamphetamine on 22 March 2017, in the belief that someone else intended to sell it; and
Selling methylamphetamine between 22 March 2017 and 31 August 2017 by co-ordinating regular sales in return for benefit from the supplier. It is asserted that those benefits took two forms, the supply of drugs for yourself; and a financial benefit.

The Crown is not able to assert the extent of drug sales that you made and/or facilitated during the indictment period beyond the references made in the telephone intercept text messages and phone calls and the amount of methylamphetamine which was actually seized from Kelly Navarro on 2 August 2017. These total between $21,400 and $25,000.

The value of the cannabis and methylamphetamine which was seized on 22 March if sold is $27,222. The value of the drugs sold prior to the commencement of the period covered by the indictment, count 2 on complaint 52020/2017, was $300.

You appear before the Court with prior convictions for drug related matters. Notably in 2014 you were convicted of trafficking in a controlled substances and cultivating a controlled plant for sale. You were sentenced to a suspended prison sentence for that offending. Some of the prior matters are now very old and assume less significance in the overall assessment of your character but they cannot be ignored altogether. They stand as evidence of a longer term propensity to commit drug related offences. Yours is a poor record overall when it comes to drug related offending. As someone who has offended before and had the benefit of a suspended sentence I cannot accept that you do not appreciate the seriousness of your conduct. I am however, prepared to accept that you have made significant improvement in more recent times, an aspect to which I will return. This offending is explained, in part at least, on the basis that you needed to obtain funds to settle debts which were becoming the subject of threats from the third parties to whom you owed money. I am prepared to accept that the pressure placed upon you involved threats to your family and that you considered it had an impact on your ability to maintain a safe home and relationships. This explained only that part of your offending relating to cannabis use and not the methylamphetamine trafficking, the more serious conduct.

Your conduct demonstrates a failure to appreciate the seriousness of this type of offending and the harm that is causes. Drug trafficking is the means by which illicit substances are disseminated within the community and the source of harm which flows from drug use. That is so whether you traffic to known users or not. As for your own drug use at the time of the offending, you were using cannabis and methylamphetamine intermittently, predominately to elevate back pain, though you did refer to methylamphetamine use as contributing to your weight loss objectives.

Relevantly and importantly, you now apparently abstain altogether, a course initiated upon your arrest three years ago. I am told by your counsel that you have not used any form of illicit substances since that time. You have apparently been tested a number of times by police and all such tests have been clean.

You are educated to year 10 and you are currently undertaking a business course to assist with the operation of your business, which involves repairing second-hand vehicles. The business is successful. I am told that you work up 7 days a week, and you employ two people. Whilst you contend that a term of imprisonment would impact the operation of the business I infer that there would be some capacity at least for the business to continue through the efforts of those employees if that was necessary.

At the request of your counsel, I had you assessed for a home detention order. You are considered unsuitable on the basis of the risk of illicit firearms possession and that is a proper basis for that conclusion.

In the circumstances such an order cannot be imposed,

In those circumstances, a term of imprisonment is the only order which is appropriate.

In determining the sentencing order I have regard to your personal circumstances, and to the fact that you appear to have made significant improvements in your life, not only in terms of family relationships but also in that you now operate a business and make a positive contribution to the community thereby. This conduct occurred a number of years ago in 2017.

There is a more recent conviction arising from conduct in 2019, so not a prior matter, in respect of which Wood J imposed a fine, reflecting her Honour’s assessment of the seriousness of that conduct. Though that offending occurred as I have noted, it speaks to the need for a sentence which addresses the need for personal deterrence. This sort of behaviour has not been repeated since then and that it is a significant development having regard to your history.

I do not ignore the approved relationship with your daughter, but as a sentencing consideration there are no exceptional circumstances around that which are relevant.

In terms of general deterrence, a sentence which makes it clear to others that the consequences of this sort of offending are serious is necessary.

I take account of your plea of guilty.

In the circumstances I have determined that a sentence of 12 months’ imprisonment is appropriate, for the offending covered on the indictment.

I turn to consider whether some or all of that sentence should be suspended.

As I have noted, you have not committed any drug related since 2019, conduct for which you were sentenced last year with a fine. It is of moderate seriousness.

The improvement since then is the best evidence of you having developed an insight to your offending and of your rehabilitation. Rehabilitation should always be encouraged and while it has only begun relatively recently, it should be acknowledged.

Importantly in my view in terms of the contribution you are making to your community you are running a business that involves you making a positive contribution to the community and your business activity engages two other people in a region where anecdotally at least employment is difficult to obtain. I accept that actual incarceration will have some impact on that, even if I assume as I have already said, there is a capacity for the business to continue operation in some form. A suspended sentence has a deterrent effect, and operates to discourage further offending on your part because if you do commit an offence during the period of suspension you are liable to serve the sentence. General deterrence is important despite your rehabilitation and the positive matters to which I have referred, but it is well settled that a suspended sentence has a general deterrent effect.

Again in respect of this question, I take account of your plea of guilty as your acknowledgment of your wrongdoing. I emphasise again the passage of time which has elapsed since this offending. Balancing matters, and I have to say that this is a difficult sentencing exercise, I have determined that it is not inappropriate to suspend the whole of the sentence in this case because I think it will promote your continued rehabilitation, deter future offending and mark the seriousness of your conduct for the purpose of deterring others.

Accordingly I suspend the sentence I have just imposed for a period of 3 years on condition you commit no offence punishable by a term of imprisonment in that period. If you do, you may be required to serve the sentence I have just imposed.

On the summary matters, I record convictions.

In accordance with the pre-sentence report which I have received and accepting the recommendation contained within it in relation to community based supervision, I make a supervision order for a period of 12 months. That order will include all of the relevant core conditions. You are to submit to the reasonable directions of the probation officer during that period.

In relation to the orders sought by the State in respect of the cost of analysis, I make those orders. They are as follows:

You must pay the cost of analysis of $1,416 and $3060, pursuant to s 36B of the Misuse of Drugs Act 2001
I make an order pursuant to s 149(1) of the Firearms Act in relation to property on seizure record I make orders pursuant to s 149(1) of the Firearms Act 1996 in respect to items 7, 13, 16, 22 and 23 on property seizure records 166613 and 166614
I order the forfeiture of items 4, 7, 8, 10 and 14 on property seizure record 166651 and in respect of the items of property 2, 3, 4, 5, 6, 9, 10, 11, 18, 20 and 21 on property seizure records 166613 and 166614 pursuant to s 38 of the Misuse of Drugs Act