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[2016] ACTSC 280
Supreme Court of the ACT
2016-08-22
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - drug trafficking - drug possession - consideration - no prior criminal record - guilty plea - suspended sentence - Good Behaviour Order
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33
Drugs of Dependence Act 1989 (ACT), ss 169(1), 187
Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985)
Bui v The Queen [2015] ACTCA 5
Coggan v The Queen [2013] ACTCA 49
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Kennewell v Rand [2005] ACTSC 89
Mattas v Hawke [2013] ACTSC 90
R v Campbell [2010] ACTCA 20
R v Carney [2013] ACTSC 266
R v Daquinta [2014] ACTSC 131
R v Dib [2003] NSWCCA 117
R v Dudeck [2015] ACTSC 80
R v Himbert (No 2) [2015] ACTSC 124
R v Honeyman [2016] ACTSC 2
R v Jury (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 8 February 2013)
R v Lanham [2014] ACTSC 128
R v Liv (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 13 December 2012)
R v M T [2014] ACTSC 162
R v NF (No 1) [2016] ACTSC 216
R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 9 July 2013)
R v Obi (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 18 October 2012)
R v Robertson [2014] ACTSC 354
R v Tait (1979) 46 FLR 386
R v Tran [2014] ACTSC 368
R v Veljaca (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012)
R v Verdins (2009) 16 VR 269
R v Wilkins [2015] ACTSC 145
Singh v The Queen [2015] ACTCA 65
F Rinaldi, Drugs Offences in Australia, Volume 1 - Sentencing (Law Book Company, Sydney, 1986)
I Dobson and P Poletti, Buying and Selling Heroin - A Study of Heroin User/Dealers (NSWBOCSAR, Sydney, 1988)
1. The consumption of drugs has become a blight on the Australian community.
2. As I pointed out in R v NF (No 1) [2016] ACTSC 216 at [38]- [39]:
38. There is no doubt that drug abuse causes serious problems in our community. Not only does it have a devastating effect on the lives of those addicted, but they tend to prey on the community, particularly as the addiction takes hold, and they face difficulties in finding the funds to feed their habit, targeting other members of the community and, in particular, their possessions and property.
3. While this is the context in which it is appropriate to deal with offences involving dealing in illicit drugs, two sentencing principles are important: an offender can only be sentenced for the offence which he or she has committed (Pearce v The Queen (1998) 194 CLR 610 at 615; [12]) and many offences can be committed in a wide variety of ways with different levels of seriousness and it is important that the heinousness of conduct in a particular case depends not on the statute defining the offence but on the facts of the case (Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452).
4. Now appearing before me for sentence is Emma Marie Di Bitonto who has pleaded guilty to an offence of trafficking in a controlled drug, namely 3, 4-methylenedioxymethylamphetamine (MDMA).
5. Trafficking in a controlled drug, such as MDMA, is an offence under s 603(7) of the Criminal Code 2002 (ACT) for which the maximum penalty is 10 penalty units (that is, at the time, a fine of $150 000) and 10 years imprisonment.
6. Ms Di Bitonto has also asked that I take into account two offences of possession of drugs of dependence, in the one case cocaine and the other case MDMA.
7. Possession of a drug of dependence is an offence against s 169(1) of the Drugs of Dependence Act 1989 (ACT) for which the section provides a maximum penalty of 50 penalty units (that is, at the time, a fine of $7500) and imprisonment for two years.
8. On 20 February 2015, the person to whom Ms Di Bitonto sold MDMA, to whom I shall refer as Mr CX, sent an SMS text message to Ms Di Bitonto requesting to purchase MDMA. They arranged to meet in Civic where Mr CX bought one or two capsules of MDMA from her.
9. Then, on 22 March 2015, 1 April 2015 and 10 April 2015, Mr CX again arranged, apparently by SMS text message, to buy MDMA capsules from Ms Di Bitonto and, on the first two occasions, again purchased one or two capsules, but on the last occasion purchased 12 capsules from her.
10. Sometime between 29 April 2015 and 1 May 2015, Mr CX again arranged by SMS text message to buy MDMA capsules from Ms Di Bitonto. He met her at her residence in the evening of 1 May 2015 and purchased 17 capsules from her.
11. On each occasion that Mr CX purchased capsules from her, he paid $30 in cash for each capsule. He consumed the capsules and he said that they "had an effect upon him". Thus, between 20 February and 1 May, Ms Di Bitonto supplied between 32 and 35 capsules. At $30 per capsule, Ms Di Bitonto received between $960 and $1050 over those two and a bit months.
12. There was no evidence in the Statement of Facts as to how Ms Di Bitonto knew Mr CX. There was, also, no evidence of her supplying MDMA on any other days to any other person, nor any evidence from which I could draw that conclusion beyond reasonable doubt. See R v Carney [2013] ACTSC 266 at [149].
13. On 9 April 2015, police obtained a search warrant under s 187 of the Drugs of Dependence Act for the accused's motor vehicle, which they executed at about 11:00pm on 1 May 2015, following the last purchase by Mr CX from her.
14. At that time, Ms Di Bitonto and a female friend had left her home in her vehicle. Police followed it, stopped the vehicle and executed the search warrant. They found in her purse a small clip seal bag containing 0.72grams of cocaine and a clip seal bag containing 0.863 grams of MDMA. Ms Di Bitonto admitted the purse belonged to her.
15. Both MDMA and cocaine are controlled drugs as defined in Sch 1 of the Criminal Code Regulation 2005 (ACT).
16. On 2 May 2015, immediately after the execution of the search warrant, Ms Di Bitonto was arrested. She appeared in Court later that day but was released on bail and has been in custody for one day.
17. The proceedings were adjourned and, on 25 May 2015, Ms Di Bitonto pleaded not guilty. She was, on 3 August 2015, committed to this Court for trial.
18. On 15 February 2016, the matter was listed for trial to commence on 6 June 2016, but an indication of discussions between the parties was given on 16 March 2016. On 25 May 2016, she was arraigned and pleaded guilty. The delay was in part caused, it appears, by negotiations on the terms of the Statement of Facts to be presented to the Court.
19. Mr CX has not been prosecuted for his involvement in this criminal enterprise.
20. As noted above (at [1]-[2]), the use of illicit drugs is a serious matter in the community and, therefore, trafficking is to be regarded as a serious offence. That is confirmed by the maximum penalty set by the legislature which shows the relative seriousness of the offence. See R v Tait (1979) 46 FLR 386 at 396-8.
21. Nevertheless, the offence covers a wide range of conduct and it is necessary to identify the particular circumstances so as to assess the actual seriousness of the offending conduct of Ms Di Bitonto.
22. The Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41], set out some principles identified in the authorities concerning the sentencing of drug traffickers that need to be considered by sentencers. They were:
23. In this case, while there was an escalation in the amount of drug sold, each capsule was of a relatively modest value suggesting that Ms Di Bitonto is a low-level street dealer.
24. In F Rinaldi, Drugs Offences in Australia, Volume 1 - Sentencing (Law Book Company, Sydney, 1986), 150-76, Mr Rinaldi identified grades of dealers (there relating to heroin) which is useful for assessing the culpability of offenders so far as their role is concerned.
25. Under this taxonomy, which divided dealers into professional, medium and end-of-the-line dealers, it seems clear that Ms Di Bitonto is an end-of-the-line dealer.
26. Another taxonomy is that used by the NSW Bureau of Crime Statistics and Research which identified importers, wholesalers, ounce dealers, user/dealers, small-time users/dealers and users. See I Dobson and P Poletti, Buying and Selling Heroin - A Study of Heroin User/Dealers (NSWBOCSAR, Sydney, 1988). Again, this relates to heroin dealers but it is a useful approach to traffickers generally.
27. On this approach, it seems to me that Mr Di Bitonto is a small-time user/dealer.
28. It is notable that Mr CX contacted Ms Di Bitonto on each occasion and sought to purchase the drugs, rather than Ms Di Bitonto taking a pro-active role in the drug trafficking. No evidence was available to me as to how that relationship originated or the circumstances under which Mr CX came to rely on Ms Di Bitonto for his drugs. There were five purchases in over two months, not even once a week. In the absence of aggravating features, the circumstances do not suggest to me that Ms Di Bitonto has been an active dealer pressing her drugs on others. Nevertheless, the crimes constituted a course of conduct.
29. I also note that Ms Di Bitonto says that she was selling MDMA in order to fund her consumption of cocaine. That is supported by the finding of cocaine in her purse when police searched her car.
30. The reason for her drug trafficking seems consistent with my assessment of her role as I have indicated.
31. Again, I do not have particular evidence about the likely weight of the capsules although the amount paid for each capsule shows that they each constitute a relatively small quantity, although the number of capsules did increase, though at Mr CX's request. The amount sold over about two and a half months is not great, though it was escalating.
32. Finally, I am satisfied that there was no financial profit motive and that Ms Di Bitonto was seeking to provide funds for meeting her own addiction.
33. These matters tend to show that the offence is not a particularly serious version of what, however, is a serious offence.
34. I had a helpful letter from Ms Di Bitonto's mother, a number of medical reports, a report from her treating psychiatrist and psychologist, and a Pre-Sentence Report. From those, I can make the following findings.
35. Ms Di Bitonto was born 25 years ago in Queanbeyan, one of four children born to her parents. She had a stable childhood but it was marred by the disintegration of her parents' marriage caused by her father's behaviour towards her mother, especially his violence. Her father's last assault on his wife was after their separation, when Ms Di Bitonto was nine. It occurred in front of the children and, while her elder sister called the police, she stayed in the room crying, "No, Daddy, no". The witnessing of this event clearly affected the children, particularly Ms Di Bitonto. She commenced counselling and was sent to a child mental health assessment at Woden.
36. At one point, she attended counselling at a private practice in Deakin and at home became more intensely unhappy and withdrawn, being prone to intense emotional breakdowns following which she would withdraw into herself.
37. She has had no contact with her father since then. She has the support of her mother and three siblings. This is important for rehabilitation. She is a single woman with no dependants, currently living independently.
38. Ms Di Bitonto completed Year 12 at school and qualified for university, commencing tertiary studies six years ago, but she seems to put them on hold for some time. She is now studying a science degree full-time this semester.
39. Mr Di Bitonto has been employed in the retail, hospitality and aged-care industries as well as time as a nanny, though she is currently in receipt of a Centrelink (Newstart) benefit which she supplements with part-time employment as an aged carer and part-time nanny.
40. Ms Di Bitonto has had a number of relationships but, regrettably, they have been with abusive men. One former boyfriend physically attacked her, beating her with a stick and leaving her badly bruised. This was followed by an emotionally abusive relationship with a man who kept telling her she was not good enough for him.
41. The worst was a man with whom she formed a relationship but who, in the words of her mother, "completely controlled her". He assaulted her and broke her nose, physically and emotionally threatened her and constantly threatened to leave her. He manipulated her into being the sole breadwinner for him and his friends while he did not work.
42. A most traumatic incident occurred where her then boyfriend and his friends ganged up on her leaving her unconscious in her car while they went inside their house for several hours. An ambulance was called by someone else, however, and Ms Di Bitonto was admitted to intensive care with blood oxygen levels so low that she was close to death or permanent brain damage.
43. She was referred to a psychiatrist and apparently diagnosed with a border-line personality disorder.
44. She continued to seek psychiatric treatment but, unfortunately, the abusive boyfriend came back into her life and she returned to him. It was, Ms Di Bitonto's mother said, "[a] desperation she felt which resulted in her using drugs and selling them to obtain funds". She says she felt genuinely financially trapped and overwhelmed and that this, combined with her fragile mental state, led to her making very bad decisions. I assume from the material before me that Ms Di Bitonto has ended the relationship.
45. Ms Di Bitonto first consumed MDMA when she was 21. She consumed up to three to four pills every couple of months on a social basis. She also started using cocaine at this age, consuming up to two grams every month during binge sessions that would extend over one or two days with her former partner.
46. When she was arrested and charged, she ceased consumption of illicit drugs and she has been subject to urinalysis on 14 May and 27 August 2015 and 4 March and 28 July 2016; those analyses did not detect any illicit drugs, supporting her claims of abstinence.
47. She has also engaged in counselling at Directions, a respected drug rehabilitation agency in this Territory. She attended for counselling on 13 and 22 May 2015 and 30 June 2016.
48. Ms Di Bitonto has suffered from several physical and mental health conditions. Ms Di Bitonto has suffered for many years from gynaecological problems which result in her experiencing severe pain. She has been treated since 2008 for what her gynaecologist described as "really difficult problems" and continues to experience those problems and remains under specialist care.
49. These problems have led to frequent hospital admissions and I had a report of 38 admissions to The Canberra Hospital between December 2001 and December 2015. In the same period, she had been admitted to Calvary Hospital once this year and presented to the Emergency Department of that hospital on eight occasions.
50. It is not difficult to see, with that history, how Ms Di Bitonto would be likely to look for some relief and support, although it is very regrettable that she would find that in illicit substances.
51. She has also been under care of a Consultant Psychiatrist and a Psychologist. She has seen her psychiatrist on four occasions. She has presented with symptoms consistent with a generalised anxiety disorder and a border-line personality disorder although not strictly satisfying the standard DSM-V criteria.
Ms Di Bitonto is aware that there are elements of her life and history that might predispose her to poor choices, and she is trying to address these. I am not aware of Ms Di Bitonto participating in any dangerous or criminal behaviour in the time we have known each other. Ms Di Bitonto remains keen to pursue all suggested treatment options.
It is my professional opinion that Ms Di Bitonto would benefit from an ongoing therapeutic relationship within which she is able to investigate and pursue psychotherapeutic options to address her generalised anxiety and border-line personality features.
53. Her psychiatrist expressed the view that imprisonment would have "a serious adverse effect on her mental health", a "devastating effect" on her anxiety which is likely to become overwhelming. She is likely to become "more disorganised" if she is incarcerated. Her psychiatrist also commented that it would be "very difficult, if not impossible to provide the consistency [of treatment for her mental health] required to adequately address issues of anxiety or personality vulnerability within a custodial setting". Her psychiatrist further considered that Ms Di Bitonto would be able to comply with a Good Behaviour Order.
54. I had a report from her Psychologist who has treated her on six occasions, the last session being on 10 August 2016.
55. The treatment has focussed on her psychological distress associated with her circumstances and utilised a cognitive behavioural therapy approach. It has also focussed on understanding and moderating her interpersonal style in order to help her improve the quality of her relationships.
56. Ms Di Bitonto has attended all scheduled appointments and is said consistently to articulate her motivation to improve her quality of life, her circumstances and her mental health related symptoms. She continues to struggle, however, with a range of anxiety and mood related symptoms which have been largely unresponsive to medications.
57. Her Psychologist also indicated that, since she had known Ms Di Bitonto, to the best of her knowledge, she had not engaged in any dangerous or criminal activity and has consistently expressed remorse about her involvement in the local drug culture and resultant criminal charges.
59. Ms Di Bitonto has asked me to take into account the two charges of possession of drugs. I will do so in the way set out in R v Campbell [2010] ACTCA 20 at [46]- [50]. In summary, that requires that some greater weight be given to personal deterrence and punishment and that the sentence is likely to be more severe, but not beyond that which is appropriate for the offence for which the sentence is actually to be imposed.
60. I was provided with a table from the ACT Sentencing Database for offences under s 603(7) of the Criminal Code and a tabulated summary of 37 decisions where offenders were sentenced for the offence of trafficking in illicit drugs, sometimes with other offences also. In addition, I was presented with the sentencing remarks of a number of cases that the Crown suggested were comparable.
61. Using the database, I have interrogated a number of decisions where the sentencing remarks are available through the database.
62. In the R v Himbert (No 2) [2015] ACTSC 124, Mr Himbert was found guilty after a trial of trafficking in methylamphetamine when he was searched by police who found 2.185 grams of the drug sewn into his underpants. Mr Himbert showed little remorse. He had a limited criminal history, mainly for driving offences but also possession of cannabis. The trial Judge found that his motive was for profit and that he was not addicted to methylamphetamine but was in debt. The facts revealed a significant degree of planning and his Honour found the moral culpability quite high.
63. Mr Himbert was 24 years old at the date of sentencing but only 21 years old at the time of committing the offence and had committed no further offending since then. He had stable accommodation and family support and was assessed as at a medium risk of
re-offending by the author of the Pre-Sentence Report. He was sentenced to 20 months imprisonment with the first 12 months to be served by periodic detention and the balance of the sentence suspended with a two year Good Behaviour Order.
64. In the matter of R v Tran [2014] ACTSC 368, Ms Tran was found in possession of 9.505 grams of methylamphetamine divided into small clip seal bags. She entered a plea of guilty at an early stage but the facts revealed an on-going process of supplying methylamphetamine to an associate, who then, to her knowledge, on sold the substance to others. She was a user of methylamphetamine but the evidence established that she was more than "simply a subsistent supplier". She was making a profit, albeit not significant.
65. She was 27 years old with a limited criminal history and was a single mother of three children. She had ongoing family support and had commenced using methylamphetamine to cope with life stressors, including the death of her father. She was, at the time, subject to four Good Behaviour Orders from the Magistrates Court for offences of possessing a prohibited weapon and possessing prohibited drugs.
66. She was convicted and sentenced to 16 months imprisonment with a non parole period of eight months.
67. In R v Daquinta [2014] ACTSC 131, Mr Daquinta trafficked in methylamphetamine between 5 March and 20 May 2013. He had been under surveillance by police and he was supplying "speed" on the date of his arrest to a man who paid either $100 or $200.
68. When a search warrant was executed on Mr Daquinta's house, police found 100 clear capsules of declared substances, a tablet press, methylamphetamine, amphetamine and pseudoephedrine. Intercepted telephone calls showed that Mr Daquinta was involved in an ongoing operation supplying drugs to a number of persons. He pleaded guilty at an early stage. He was 28 years of age and grew up in a stable family relationship. He maintained employment and was married with two children, though one of them died shortly after birth. It was then that Mr Daquinta's life spiralled out of control and he felt drugs gave him relief.
69. It was agreed by counsel in that case that Mr Daquinta was at a lower level of criminality but not the lowest level.
70. Mr Daquinta was sentenced to 30 months imprisonment backdated a few days to take into account pre-sentence custody and then with the first six months to be served by periodic detention and the balance suspended for two years with a two year Good Behaviour Order.
71. Mr Berents, defence counsel for Ms Di Bitonto, referred me to my decision in R v Wilkins [2015] ACTSC 145 where Mr Wilkins was found in possession of 6.348 grams of methylamphetamine and charged with trafficking in it and, while on bail for that offence, arrested for a further charge of possession of 0.174 grams of methylamphetamine.
72. Mr Wilkins was 40 years old and also had a stable childhood. He had a number of traffic offences and completed the Arcadia House 12 week residential program. He had been abstinent for 10 months which was confirmed by urinalysis and continued to attend Narcotics Anonymous and Alcoholics Anonymous.
73. He was sentenced to a total of 18 months imprisonment suspended immediately with a two year Good Behaviour Order.
74. The Sentencing Database also led me to some relevant decisions. In R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 9 July 2013), Mr Nguyen was charged with trafficking in a substance which, regrettably, was not identified and the sentencing remarks do not reveal the circumstances of the offending, but it is described in the sentencing remarks as "offending at a relatively low level with respect to this type of offence". It is a matter of regret that sentencing remarks do not enable the offence or the facts to be ascertained for the case is then of very limited use in assessing sentencing practice. Mr Nguyen was 20 years old, living with his mother and brother and contributing to the household.
75. He had a somewhat unstable family life partly resulting from his father's gambling addiction. He had no significant prior convictions.
76. His Honour found that ordinarily with respect to charges of trafficking in illegal drugs a term of imprisonment will usually be the starting point. Mr Nguyen was sentenced to nine months imprisonment suspended forthwith with a two year Good Behaviour Order.
77. In R v Jury (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 8 February 2013), Ms Jury was subject to police surveillance who then conducted a raid finding two people having left the premises after purchasing drugs from her. The drugs it appeared were methylamphetamine. Ms Jury was a single mother. She was sentenced to six months imprisonment but immediately suspended with a Good Behaviour Order for 18 months.
78. In R v Veljaca (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012), Mr Veljaca pleaded guilty to trafficking in methylamphetamine and trafficking in cannabis and asked that an offence on a list of additional offences relating to the possession of proceeds of crime be taken into account. He had a prior criminal history although the majority of it was related to traffic offences. He entered a plea of guilty though it was not at the earliest opportunity. He was 23 years of age and had undergone rehabilitation independently while on bail.
79. He was sentenced to 12 months imprisonment which, apart from pre-sentence custody, was suspended immediately with a two year Good Behaviour Order.
80. Another matter is of some relevance though, again, none of the sentencing remarks identify the offence (though it must have been a trafficking offence to have been included in the database) or the facts of the offence. In R v Liv (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 13 December 2012), Mr Liv was 27 years old and was, it appears, a user/dealer. Very helpfully, the Crown supplied some information that suggests 71.2 grams of methamphetamine and 6.2 grams of MDMA were found at Mr Liv's home. He was a drug addict, but financial gain seemed to be the motive. He was initially subject to a deferred sentence order. Having complied with the expectations of the sentencing judge expressed when the deferred sentence order was imposed, Mr Liv was sentenced to 14 months imprisonment suspended save for pre-sentence custody with a Good Behaviour Order for 15 months.
81. Finally, I refer to R v Obi (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 18 October 2012), where Ms Obi pleaded guilty to one charge of trafficking in methylamphetamine and asked for two offences of possession of cannabis and possession of stolen property to be taken into account. The stolen property was $2000 in cash.
82. Ms Obi made admissions on the basis of which she was charged with trafficking. She was said to have a "fairly small customer base" but it was said to be up to 20 people and the Court held that she sold the drug to finance her own addiction.
83. Ms Obi had a minor criminal record. She was 51 years old and came from a stable family background. She had a 19 year old son who was living with her. She began using illicit drugs as a teenager. She had physical health issues and was diagnosed with depression though she had not always complied with her treatment regime. She had been offered a place in Arcadia House for an eight-day detox but received no other alcohol or drug counselling support.
84. She was convicted and sentenced to eight months imprisonment with a reduction for her willingness to make admissions, and the sentence was immediately suspended with an 18 month Good Behaviour Order.
85. I was also referred to two other decisions, R v Dudeck [2015] ACTSC 80 and R v Robertson [2014] ACTSC 354. They were sentencing remarks for offenders convicted of trafficking in cannabis. They had such limited value as a result that I do not need to address them in any detail.
86. The purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) are matters to which I must have regard. In this case, general deterrence is important. Although Ms Di Bitonto has taken major steps towards rehabilitation, some personal deterrence is appropriate in the light of her offending. Also, the additional offences suggest that some punishment is appropriate.
87. Nevertheless, rehabilitation remains a significant factor in this case and it would be quite inconsistent with the protection of the community for Ms Di Bitonto to be placed in a situation that might risk encouraging further offending, such as by full-time incarceration.
88. Ordinarily, the authorities make clear, however, that a sentence of imprisonment will be the proper sentence for trafficking in illicit drugs in other than special or exceptional circumstances.
89. I take into account her plea of guilty. Though not made at an early stage, it was the result of some negotiation which can justify a significant discount. See R v Dib [2003] NSWCCA 117 at [3]. There is, as also acknowledged, some utilitarian value which the Court of Appeal held in Coggan v The Queen [2013] ACTCA 49 at [14]- [21], is able to be taken into account.
90. I take into account the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.
91. I accept that Ms Di Bitonto has recognised psychiatric conditions that would make the experience of full-time imprisonment more difficult for her. That, as found in R v Verdins (2009) 16 VR 269 at 276 [32], is a matter to be taken into account.
92. I also take into account the steps that Ms Di Bitonto has taken to address her drug use and the mental challenges she faces which seem to have led to that drug use. Her abstinence and her counselling with Directions and with mental health professionals are important matters to show her good prospects of reform as well as her insight and remorse.
93. I accept that the offence encompassed a course of conduct. That is a characteristic that points in various directions. For example, where a number of offences are charged but which are really aspects of the one course of conduct, ordinarily this requires a high degree of concurrency between the sentences imposed for each offence. See Singh v The Queen [2015] ACTCA 65 at [141]- [142], Kennewell v Rand [2005] ACTSC 89 at [67], Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985) at 8.
94. On the other hand, that an offence is part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrence. See Mattas v Hawke [2013] ACTSC 90 at [19], R v Campbell at [47].
95. It seems to me that the offence committed by Ms Di Bitonto is in this latter category; it was an ongoing course of conduct, constituted by the five separate transactions. Indeed, it is a fair inference, not challenged by Mr Berents, that had Ms Di Bitonto not been arrested, the offending would have continued.
96. I also accept that Ms Di Bitonto was engaged in the offending because of the challenging personal experiences she had suffered in her life, and that the motivation was to feed the drug need she had as a result and not for pure financial gain.
97. I note that Ms Di Bitonto has been assessed as suitable for a community service condition to a Good Behaviour Order.
98. Ms Di Bitonto has been assessed as at a low risk of general re-offending. She is suitable for a low level of intervention by ACT Corrective Services.
99. It is said that she appears to be eligible for referral to Restorative Justice. This is a useful suggestion, but I do not consider it appropriate for this particular offence.
100. Having considered all the relevant options, I consider that the only suitable sentence is a sentence of imprisonment but I do not consider that it has to be served in full-time custody.
1. I convict you of trafficking in MDMA between 20 February and 1 May 2015.
2. I sentence you to imprisonment for 10 months from 21 August 2016. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
4. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months with the following conditions:
(a) a probation condition that you be under the supervision of the Director-General or her delegate for a period of 12 months or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you, including as to drug rehabilitation; and
(b) that you continue counselling with Dr Meredith Whiting and Ms Sarah Gosper for the period they reasonably consider is appropriate.
[His Honour then spoke directly to Ms Di Bitonto].
102. Ms Di Bitonto, that is the formal order that I have made, and I am required to explain that to you. What I have said is that this offending was a serious offence, and was worth 10 months imprisonment, 12 months if you had not pleaded guilty. Party drugs are common in this community, unfortunately, but they lead, as this Court knows in its daily work, to serious problems for individuals, and for the community.
103. Therefore, the courts are required to take such activities as you engaged in seriously. However, in your circumstances you have no prior offending, you have good prospects of rehabilitation, and it is to the community's benefit, but also obviously to your benefit, that you do not spend any further time in prison than the one day that you have been locked up in the watch-house. Therefore I am going to release you, and suspend that sentence. That is hanging over your head though for 12 months.
104. If you commit any further offences punishable by imprisonment, then that will be a breach of the Order and you can be brought back to Court, and you can be
re-sentenced including sending you to prison if that is appropriate. You have also got two particular conditions. One is a probation condition. That is a supervision condition that you be under supervision of a probation officer, and there are two aspects of that that are important. One is the degree of control in order to prevent you lapsing into further problems. There is a degree of supervision or control over you.
105. But it is also a person who is independent that you can talk to if things are getting bad, if you are hooking up with abusive men again, which seems to be a problem for you, then you can talk to them about agencies or sources of assistance that would be available to you that can help you keep out of trouble so that you do not relapse again. If you breach any direction that is given by your supervisor, that is also a breach of that Order, and you can be brought back to Court.
106. Then finally, that you continue counselling with Dr Whiting and Ms Gosper for as long as they think it is necessary. The difficulties that you face are problematic. It would be inhumane not to have empathy and feel some sympathy for you in those circumstances, but if you are going to achieve your potential, and you have obviously got great potential, to be a useful member of the community and make a family for yourself, and have a good life and contribute to our community, then you need to be able to manage those issues so that professionals can assist you, if you are open and genuine with them and allow them to help.
107. It is a long road. It is not going to be easy. It is going to be tough. But if you commit yourself to that, and when you are knocked down, because to quote a former famous Prime Minister: "Life was not meant to be easy", you will face troubles. If you pick yourself up, and with the support of the probation officer, with Dr Whiting and Ms Gosper, but most importantly with your family, and continue to try and address the challenges that you have had, then I am sure you will put this behind you, and you will find there are other ways to enjoy partying without drugs.
108. There are people who even enjoy partying without alcohol, although I am not suggesting you necessarily should do that. I have every expectation that at the end of the day the criminal courts will never see you again, and I wish you good luck. But take
this as an important lesson and recognise the seriousness of what you did, and do not do it again.
I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Di Bitonto [2016] ACTSC 280
(1987) 163 CLR 447
(1998) 194 CLR 610
(1979) 46 FLR 386
(2009) 16 VR 269