STATE OF TASMANIA v ALEXANDER BRETT WHITE 5 AUGUST 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr White, the defendant, has pleaded guilty to two counts of trafficking in a controlled substance. The first count relates to the period 25 December 2017 to 23 April 2018 and involves the substance known as MDMA. The second count covers the same period but alleges trafficking in cocaine. The charges arise out of a police search of the defendant’s home on 23 April 2018. At that time, it appears the defendant shared the house with three others. Along with his bedroom, and another bedroom, areas searched included an office area, the lounge room, laundry and kitchen. In the defendant’s bedroom, police located $600 in cash, 809 MDMA tablets – including 10 packets each containing 10 tablets – 7 MDA tablets (MDA being a metabolite of MDMA), 34.8 grams of “mixed MDA tablets”, tablet fragments and powder, 3 partial (0.5) gram MDMA tablets, and 37 grams of cocaine. Other controlled substances and drug paraphernalia were found in other areas of the house. The combined total is as follows: 824 MDMA tablets, 10 MDA tablets, 36.7 grams of a mixture of MDA tablets, tablet fragments and powder, and 38.5 grams of cocaine. Police later spoke to various people who admitted purchasing drugs from the defendant. They revealed a number of actual sales of the substances over the relevant period of time. One person, W, said he purchased about 10 times from the defendant, with the maximum quantity purchased being between 100 and 150 MDMA tablets at a cost of between about $1,000 to $2,000. He mentioned an unspecified number of purchases of approximately 7 grams of cocaine. Another person, D, said she sometimes purchased MDMA and cocaine from the defendant and had done so since early 2018 but she could not estimate how many transactions there were. She recalled one occasion of buying between 12 to 15 MDMA pills; she paid between $100 and $200 for a 10 pack but thought that was a discounted rate. Based on the prices stated, the 824 MDMA tablets seized had a potential yield of between about $5,600 and $24,700. As an MDMA tablet weighs approximately 2 grams, the 36.7 grams of crushed/powdered MDMA equates to 18 tablets, having a potential yield of between about $125 and $540. The 10 tablets of MDA have a potential street value of $400. Based on the reports of those who admitted purchasing cocaine from the defendant, the 38.5 grams of cocaine had the potential to yield a return of between $7,600 and $15,400. That gives an overall range for both substances of between $13,725 and $27,650. When interviewed, the defendant said he lived at the address with three others, two of whom moved in about week ago. He made an admission of having tried cocaine in the past, but otherwise made no real admissions. A blood sample was taken, an analysis of which revealed the presence of a cocaine metabolite and of MDMA and MDA. The Crown asserts that the accused’s trafficking in MDMA and cocaine consists of acts of selling, preparing traffickable quantities with the intention of selling it or in the belief that another person intended to sell it, and possessing traffickable quantities with the intention of selling. The Crown says that while the amounts sold to the identified customers cannot be quantified, the defendant was a regular commercial distributor of these controlled substances during the period of the indictment.
The defendant is now 30 years old. He has a recorded history of offending that includes a Criminal Code assault in June 2011 for which he received a suspended sentence of imprisonment of six months. He appears to have been in breach of a condition by committing offences of dishonesty, but in respect of the breach, no order was made. He has no record of drug offending. I have had the advantage of detailed submissions from the defendant’s counsel, and of a comprehensive psychological report from a clinical psychologist, Grant Blake. Personal factors which are at the heart of this offending are as follows. In June 2015, the defendant was at a nightclub. He met a female with whom he had had a brief relationship. Ultimately, after telling the defendant to stay away from her, this woman’s boyfriend attacked the defendant with a broken bottle. He was hit a number of times to the head and body resulting in multiple wounds and lacerations, mostly to his left side and including neck, chest, stomach and arm. Those to the top of his head, the right side of the chest and the back of the left shoulder needed stitching. At the time the defendant was living at home and employed. The assault and its aftermath had a very significant effect on the defendant. It is clear from the material that he developed post-traumatic stress disorder as a result. His symptoms included anxiety, sleep disturbance, vivid memories of the trauma, and negative self-perceptions. In an attempt to ameliorate the symptoms he declined into binge drinking at home alone, and began using the substances the subject of these charges. He became acquainted with people involved in the acquisition and use of those drugs. He moved out of home and started to live with a number of those people. He developed a heavy drug use habit and lost his employment. Mr Blake says that at the time the defendant developed a substance use disorder secondary to PTSD. In the absence of more appropriate treatment, his PTSD remained clinically severe and he was motivated to continue using drugs for symptom relief. Mr Blake says “the persistence of this pattern, the pleasurable effects of drugs, the new social connections he made entrenched a problematic pattern of drug use.” I am told that it became a habit of the group of people in the house in which the defendant lived, along with some others, to purchase the drugs in bulk, divide the quantities purchased among themselves, with some on-selling amounts to fund the habit. The defendant was one of those. In relation to the substances that were his, the defendant intended to use some and to sell some, in order to perpetuate his use. I am told that after his arrest, the defendant re-engaged with his family and friends. He has regular contact with his mother which had been lost between the period of the assault, and his arrest. He now has the full support of his immediate family and former friends. He has completely distanced himself from the group of people with whom he was living, and the wider group of his drug associates. That has included changing his telephone and social media contact details. Not having had a driver’s licence, he has now gained one. He is presently in a stable relationship. They do not socialise much. I have evidence of an offer of employment as a kitchen hand, which will not be held open for him even in the event of a short term of imprisonment. Overall, I accept that he has taken significant steps towards his rehabilitation from drug use and the associated offending. Mr Blake’s opinion confirms a reasonable diagnosis for the future.
In addition to those matters, I take into account the pleas of guilty. Although not entered at the earliest opportunity in strict chronological terms, a significant amount of time needed to be taken to finalise the factual basis on which to proceed. It was put, and I accept, that there are genuine signs of a willingness to facilitate the course of justice. With three other people living in the house and the DNA of various people, some unidentified, being found on various items, it would not have been difficult for the defendant to attempt to deflect blame elsewhere. I take into account the lack of relevant offending history. At the same time, I must recognise that commercial dealing in controlled substances is a serious matter. They have the capacity to cause great harm in the community. The extent and hierarchical level of the defendant’s activities is largely a matter of inference and impression, but has to be established beyond reasonable doubt. Although most of the drugs were found in his room, it seems that some of what was found was intended to be shared. I am told that as far as can be established, the others in the house have been prosecuted for selling. However, while I am satisfied that the defendant’s level of activity was greater than what might be described as low level or irregular, I am not satisfied that it falls into that of a dealer at a relatively high place in the distribution chain. As a user, he and others bought in bulk to reduce the cost. He used the substances regularly and heavily, and on-sold regularly to fund his habit. I take into account that addiction was at the heart of this offending, as distinct from motives of greed and the pursuit of an affluent lifestyle. There is, of course, an explanation for the existence of that habit or addiction.
Mr White, ordinarily the crime of trafficking in a controlled substance is met with a sentence of imprisonment, although depending on the nature and extent of the offending, the term is often suspended in cases involving first offenders and/or small trafficking operations. In your case, I think the level of activity was a little greater than mere low level, but the combination of circumstances that I have identified in any event justify me taking that course. In the circumstances of the offending, I think it appropriate that the sentence include a component with an immediate impact in the form of community service, and in order to provide you with assistance to continue rehabilitation I will order supervision by a probation officer along with other relevant conditions. You are convicted and sentenced to 12 months’ imprisonment the execution of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years. I make a community corrections order for 18 months. Special conditions are that you attend education and other programs as directed by a probation officer, you submit to the supervision of a probation officer, you complete 140 hours of community service, and you undergo such assessment and treatment for drug dependency as directed. You will have to report to a probation officer at 114 Bathurst Street by 5pm tomorrow. I order the forfeiture of the sum of $600 and of all of the items listed in paragraph 31 of the Crown statement of facts filed on 26 July 2019. I have been asked to order that you pay the costs of analysis in the sum of $29,720. Particularly given that you have a Centrelink debt totalling some $18,000, I am satisfied that there are no reasonable prospects of you paying that amount. There were some other issues raised, but in the circumstances I do not need to deal with those. I decline to make the order.