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Before: Mossop J

Decision: See [36]

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking a controlled drug other than cannabis – possessing a prohibited substance – possessing a prohibited weapon – receiving stolen property – pleas of guilty – modest criminal history – illicit substance abuse – mental illness diagnosis – offender influenced to traffic by domestic partner – difficulty meeting supervision obligations due to vision impairment – not suitable for an intensive correction order – reasonable prospects of rehabilitation with appropriate assistance – sentence of imprisonment suspended upon entry into a good behaviour order Criminal Code 2002 (ACT), ss 313, 603(7) Legislation Cited: Criminal Code Regulation 2005 (ACT), sch 1 Drugs of Dependence Act 1989 (ACT), s 171(1)(b) Prohibited Weapons Act 1996 (ACT), s 5, sch 1

Parties: The Queen (Crown) Rosalind Cichacz (Offender)

Representation: Counsel S Janackovic (Crown) J Sabharwal (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) David Healey Solicitors (Offender)

File Numbers: SCC 12 of 2021 SCC 13 of 2021 SCC 19 of 2021 MOSSOP J:

13 December 2021

Introduction

1. On 11 September 2020, the offender, Rosalind Cichacz, pleaded guilty in the Magistrates Court to the following offences:

Trafficking a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CC2020/4512). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.

Possessing a prohibited weapon, namely an extendable baton, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2020/4514). The maximum penalty is 5 years’ imprisonment, 500 penalty units or both.

Possessing a prohibited substance, namely methylenedioxymethamphetamine (MDMA), contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT) (CC2020/4516). The maximum penalty is 2 years’ imprisonment, 50 penalty units or both.

2. On 29 September 2021, the offender pleaded guilty in the Supreme Court to receiving stolen property contrary to s 313 of the Criminal Code (CC2020/6925). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.

Facts

3. On 30 September 2019, police executed a search warrant on premises of which the offender was the occupier. During the search, police located receptacles containing substances which included methylamphetamine. There were also other indicia of trafficking including clip seal bags and two sets of digital scales. There were written records containing names and monetary amounts in the offender’s handbag and two notebooks. A total of 26.267 g of a substance containing methylamphetamine was located on the premises.

4. An iPhone seized by police revealed messages indicating the offender had regularly possessed and sold methylamphetamine in various amounts.

5. Police also found 9.297 g of a substance containing MDMA in a set of drawers and in the offender’s handbag.

6. Police also found a black and gold extendable baton in the offender’s handbag.

7. During the search, various items were found which belonged to other people. They included a government identification card, tools which had been stolen which were worth $6042 and a mountain bike which had been stolen.

Objective seriousness

8. The offender appears to be a street-level dealer actively selling methylamphetamine. The quantity of substances containing methylamphetamine was 26.267 g which was more than four times trafficable quantity, being 6 g: see the Criminal Code Regulation 2005 (ACT) sch 1, pt 1.1, item 44. The Crown submitted that she was engaged in the sale of methylamphetamine to fund her own and her boyfriend’s drug habits and for the purposes of obtaining various items of property.

9. The objective seriousness of the receiving stolen property charge is influenced by the value of the property and the fact that it came from three different sources. The possession of these items indicates a methodical accumulation of such property in order to make a profit, one way or another, from its disposal.

10. In relation to the possessing a prohibited weapon charge, it is necessary to take into account the nature of the weapon having regard to other weapons which are covered by the same offence and the offender’s relationship with that weapon. When compared with other weapons the subject of this offence which are listed in sch 1, pt 1.2 of the Prohibited Weapons Act, it is less serious than some other prohibited weapons, for example bombs, missiles, flame throwers and grenades.

11. In this case, the offender possessed rather than used the weapon. It was possessed in a handbag in her private residence. The inference may be drawn that it was intended for self-defence in circumstances where she was involved in dealing in drugs.

12. In relation to possessing a prohibited substance, the amount possessed was close to the trafficable quantity of MDMA, which is 10 g: see sch 1, pt 1.1, item 125 of the Criminal Code Regulation.

Subjective circumstances

13. No pre-sentence report was ordered. The principal sources of information about the offender’s circumstances are the materials tendered on her behalf. These included a letter from the offender, a report of psychologist Leesa Morris, a letter from her doctor and four character references.

14. The offender is 49 years old. She is a single mother with two adult children aged 31 and 24. Both children live in Melbourne. She came to Canberra when she was eight years old after the separation of her parents. She attended school in Queanbeyan. She was in a relationship with the father of her children for 18 years from the age of 17. Her mother died in 2016.

15. The offender had a solid history of employment up until 2015. Since then, she has been on unemployment benefits but has at times performed cleaning work.

16. She was in a relationship with a Peter Mossop between 2015 and 2020. Both he and fellow tenants of the property were heroin addicts. Mr Mossop ended up quitting his job and fell into heavy drug use. She obtained housing through ACT Housing. She continued to support Mr Mossop and his addiction. She began using methylamphetamine under his direction. As a couple, they needed to make money to support his $700-a-day habit. The relationship with Mr Mossop was a difficult one. Following her arrest, she obtained a final family violence order against him in September 2020.

17. The offender subsequently had another unsatisfactory relationship with another man which she described as worse than that with Mr Mossop. The relationship ended in September 2021.

18. The offender suffers from an autoimmune condition which was diagnosed in 2015. When her condition is aggravated, she suffers from vision loss. This is not curable. The approach to management is long-term immunosuppression and careful monitoring. The letter dated 2 December 2021 of Matthew Cook, a senior staff specialist in immunology at the Canberra Hospital, indicates that management of this condition would be more difficult in custody.

19. She began smoking methylamphetamine in 2016. Her last regular use was reported as being in April 2020 but she has used sporadically since that time.

20. The offender is remorseful about her conduct. This has been expressed to her son.

21. The offender has a modest criminal history of drink-driving convictions in 2012 and 2016, two convictions in 2016 for possessing a drug of dependence and a conviction in 2017 for driving while disqualified. She has some outstanding charges in the Magistrates Court for which she is yet to be sentenced.

22. An assessment by Ms Morris on the Level of Service Inventory-Revised (LSI-R) indicated that the offender requires a moderate level of intervention to prevent reoffending. Ms Morris records “This relates mostly to her financial, mental health, social isolation and substance use issues. These elements cause Ms Cichacz to be highly vulnerable to further duress and exploitation.” Ms Morris diagnosed the offender as suffering from substance use disorder in remission as well as post-traumatic stress disorder arising out of the relationship with Mr Mossop.

23. The Crown submitted that the offender has largely led a respectable life and has developed a drug addiction at a later stage in life. It is her use of illicit substances that underlies her criminal behaviour.

Plea of guilty

24. The offender pleaded guilty to each of the charges, except the charge of dishonestly receiving stolen property, at the earliest possible opportunity. She will receive a 25 percent discount on each of these charges. In relation to the dishonestly receiving stolen property charge, this initially involved three charges but as a result of negotiations in the lead up to the trial in the Supreme Court, the Crown filed a fresh indictment on 23 September 2021 with a single rolled up count of receiving stolen property to which the offender pleaded guilty. She will receive a discount of approximately 15 percent on this charge.

Time in custody

25. The offender has spent 24 days in custody attributable to these offences. Bail was breached by the use of illicit substances in June 2020 and in March 2021. The sentences imposed will be backdated to take into account this period.

Comparable cases

26. The Crown provided a table of comparable cases. They indicate a range of dispositions for trafficking offences in comparable circumstances ranging from fully suspended sentences to intensive correction orders (ICOs) to periods of full-time detention up to 17 months.

Consideration

27. The Crown submitted that a custodial penalty was warranted but did not make any submissions about length or how it should be served. The Crown noted that the offender’s prospects of compliance with a community-based order are unclear in the absence of information about her engagement with community corrections while on bail and her breaches of bail and breaches of two previous good behaviour orders. The Crown submitted that if a sentence other than full-time detention was contemplated then an assessment should be made for an ICO or for a drug and alcohol treatment order (DATO). This was consistent with the submissions made on behalf of the offender that either a suspended sentence or an ICO was preferable in circumstances where the offender may have difficulty complying with frequent reporting requirements.

28. The offender appears to have been dragged into systematic trafficking by her involvement with a very unsatisfactory partner. Otherwise, she has had a reasonably law-abiding life, has participated in employment and raised two children as a single mother. With appropriate assistance she has reasonable prospects of rehabilitation.

29. In my view, the appropriate custodial sentences are:

On the trafficking charge, 16 months’ imprisonment reduced to 12 months on account of the plea of guilty.

On the receiving stolen property charge, 12 months’ imprisonment reduced to 10 months on account of the plea of guilty.

On the possessing a prohibited weapon charge, one month’s imprisonment reduced to 21 days on account of the plea of guilty.

On the possessing a prohibited substance charge, two months’ imprisonment reduced to six weeks on account of the plea of guilty.

30. The sentence for receiving stolen property will be cumulative as to four months on the trafficking charge but otherwise concurrent. The sentence on the possessing a prohibited weapon charge will be concurrent as to 15 days on the previous sentence and the possessing a prohibited substance sentence will be cumulative as to one month on the previous sentence.

31. That gives an aggregate sentence of 17.5 months. The appropriate sentencing options appear to be a partially or wholly suspended sentence, an ICO or DATO.

32. At this stage I consider it appropriate to direct an assessment for an ICO and consider the appropriate disposition with the benefit of that report.

Orders

33. The orders of the Court are:

34. I direct the preparation of an intensive correction assessment report.

35. I vary bail by adding a condition that she comply with any direction of an officer of ACT Corrective Services in relation to the preparation of the intensive correction assessment.

36. I list the matter at 9:30am on Tuesday, 22 February 2022.

37. What are currently listed as bail conditions 4 and 5, which are the not to assault and not to contact conditions, are deleted. 22 February 2022

Consideration of ICO assessment report

34. In my view, having regard to the terms of the ICO assessment report, it is not appropriate to make an ICO. Whilst I accept that the court has power to not adopt an assessment report, I think that some weight should be given to the opinion of the assessing officers, who have a better appreciation of the reality of supervision. Further, having regard to the assessment of unsuitability, I think it is not appropriate to set the offender up to fail; and there would be a significant risk of doing that by the imposition of an ICO. I have obviously taken into account the desirability of a closer level of supervision, having regard to her difficulties with illicit drugs. But that does not outweigh, in my view, the difficulties with imposing an ICO. I have considered imposing a partially suspended sentence that goes beyond the 24 days that she has already served on remand, but do not consider that that is an appropriate sentence at this stage.

35. Obviously if there is further offending then the effect of the suspended sentence orders that I will impose are likely to result in a further period in custody. What I propose to do is to impose sentences which will be wholly suspended, except to the extent to which the first of them is backdated by 24 days, to take account of the period of pre-sentence custody, and on each charge, to require entry into a good behaviour order as a condition of the suspension of the sentence, with a period of supervision. The good behaviour orders will be structured so as to allow the offender to have them completed and discharged sequentially, so as to provide an incentive for making progress and to reduce the ultimate liability to imprisonment, as a result of the expiry of those good behaviour orders.

Orders

36. The orders of the Court are:

37. On charge CC2020/4512, trafficking a controlled drug other than cannabis, the offender is convicted and sentenced to imprisonment for a period of 12 months commencing on 29 January 2022 and ending on 28 January 2023.

38. That sentence is to be suspended after the offender has served 24 days in custody, a period which has been fully served, upon entering into an undertaking to comply with good behaviour obligations for a period of two years with the additional condition that she be subject to supervision by the Director General and obey all reasonable directions of that person for a period of two years or such a shorter period as determined by the Director General.

39. On charge CC2020/6925, dishonestly receiving stolen property, the offender is convicted and sentenced to imprisonment for a period of 10 months.

40. That sentence is suspended upon entry into an undertaking to comply with good behaviour obligations for a period of one year with the additional condition that she be subject to supervision by the Director General and obey all reasonable directions of the Director General for a period of one year or such shorter period as determined by the Director General. 9. On the charge of possessing a prohibited weapon (CC 2020/4514), the offender is convicted and sentenced to imprisonment for a period of 21 days.

41. That sentence is suspended upon entry into an undertaking to comply with good behaviour obligations for a period of two months with the additional condition that she be subject to supervision by the Director General and obey all reasonable directions of the Director General for a period of two months or such shorter period as determined by the Director General.

42. On the final charge of possessing a prohibited substance, (CC2020/4516), the offender is convicted and sentenced to a period of imprisonment of 42 days which is wholly suspended upon entering into an undertaking to comply with good behaviour obligations for a period of two months with the additional condition that she be subject to supervision by the Director General and obey all reasonable directions thereof for a period of two months or such shorter period as determined by the Director General.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: 2 March 2022