R v Gatica [2020] ACTSC 22

Crimes Act 1900 (ACT) s 114C

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33, 35, 57, Part 4.4

Blundell v The Queen [2019] ACTCA 34

Bui v The Queen [2015] ACTCA 5

Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428

Hili v the Queen [2010] HCA 45; 242 CLR 520

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

R v Ang [2014] ACTCA 17

R v Brown [2019] ACTSC 59

R v Campbell [2010] ACTCA 20

R v Campbell [2017] ACTSC 74

R v Di Bitonto [2016] ACTSC 280

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Hill [2016] ACTSC 310

R v Martin [2007] VSCA 291; 20 VR 14

R v Meyboom [2012] ACTCA 48

R v Osenkowski (1982) 30 SASR 212

R v Papadakis [2017] ACTSC 341

R v Pham [2015] HCA 39; 256 CLR 550

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

Ryan v The Queen [2001] HCA 21; 206 CLR 267

Stanford v The Queen [2007] NSWCCA 73

Zdravkovic v The Queen [2016] ACTCA 53

SCC 49 of 2019; SCC 50 of 2019

1. On 14 March 2019, Zac Gatica (the offender) pleaded guilty to the following offences:

(a) one charge of trafficking in a controlled drug, namely MDMA, contrary to s 603(7) of the Criminal Code 2002 (Criminal Code) (CC18/12009). The maximum penalty for this offence is imprisonment for 10 years, 1000 penalty units, or both; and

(b) one charge of dealing with the proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT) (Crimes Act) (CC18/12008). The maximum penalty for this offence is imprisonment for 2 years, 200 penalty units, or both.

2. To be taken into account under Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is one charge of trafficking in a controlled drug, namely cocaine, contrary to section 603(7) of the Criminal Code (CC18/12007).

3. The agreed facts are set out in the Statement of Facts which forms part of the Crown Tender Bundle. What follows is a summary.

4. On 27 September 2018, police executed a search warrant on the offender's premises in Wright in the ACT. Police observed the offender and his partner and commenced a taped Record of Search Warrant with the offender, during which the offender stated there were drugs inside the premises.

5. Police subsequently conducted a search and located the following relevant items:

(a) 3 clip seal bags containing pills, believed to be MDMA;

(b) 8 clip seal bags containing white power, believed to be cocaine;

(c) 13 large clip seal bags of brown pills, believed to be MDMA; and

(d) $35,350 in cash.

6. Police also conducted a search of the offender's vehicle and found a clip seal bag containing brown coloured tablets, believed to be MDMA. Police also seized the offender's mobile phone and identified a series of conversations relating to the sale of illicit substances.

7. Laboratory analysis of the drug items seized resulting in the following findings:

8. It was accepted by both parties that regard should be had to the principles outlined in Bui v The Queen [2015] ACTCA 5 (Bui) in relation to trafficking offences, where it was outlined at [41]:

Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:

(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50; [33].

(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at 438; [34].

(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [2002] NSWCCA 300; (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

9. It was submitted by counsel for the offender that the quantities of drugs and cash are consistent with the offender being "a street level dealer dealing to support his own drug addictions".

10. It was submitted the offences are at the "lower end of objective seriousness".

11. In addressing the matters set out in Bui, the prosecution submitted that the quantity of the drug significantly exceeded the trafficable quantity but accepted there was no information as to the purity. In respect of motivation, the prosecution submitted that it was clear from the evidence before the court that the offender "clearly had a significant amount of money coming in as a result of his trafficking" (T 7.22-23). With respect to the role of the offender in any operation, the prosecution submitted that the amount of money located and the amount of drugs involved, suggests the offender sits "somewhat above a typical street-level dealer", albeit not at the top of any distribution network (T 7.35-39).

13. It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, "it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case": R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. As to identifying features, I accept the submissions of the prosecution as the submissions accord with my view of the evidence.

14. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.

15. The offender is 28 years old. He reported a difficult childhood with regular conflict between family members, including domestic violence. He claimed his parents separated approximately five times when he was between the ages of 12 and 13. He described being cast out of home at 16 and having very limited contact with his parents for two years. The offender moved in with relatives between 18 and 21, and has resided with his partner since then. The offender identified strained relationships with his parents.

16. The offender completed his Year 12 education and studied at university. He was, until recently, employed full-time as a public servant. The offender stated that he is disassociating from antisocial peers, and that when he does encounter them he motivates them to cease drug use and spend time with him at the gym.

17. The offender reported no current or past problematic alcohol use. The offender was assessed at a low risk of alcohol related harm.

18. The offender commenced recreational drug use in 2017, which escalated to daily use. He identified his drugs of choice as cocaine and MDMA. He admitted to the author of the report that prior to the offences he used cocaine daily for a week, and was using ecstasy recreationally on weekends. The offender completed the Alcohol and Drug Abuse Prevention Treatment in April 2019. Random urinalysis conducted on 5 occasions during the offender's bail period provided negative results for all illicit substances. The offender stated he is focusing on work and study and is no longer interested in being part of the drug scene. The offender's illicit substances related risk was assessed as "severe" and requiring further reassessment.

19. The offender has been in a relationship for two years. The offender claimed he introduced his partner to illicit substances, but they have both been abstinent since an incident when he overdosed.

20. A letter from the offender's General Practitioner to the PSR author confirmed he has issues with past trauma and a mental health condition. The offender is not medicated for this condition, preferring to address his mental health with physical fitness.

21. The offender agreed to the Statement of Facts and did not minimise his offending. He described internal struggles, and feeling trapped in the financial advantages of trafficking.

The offender has accepted responsibility for his actions and internalised the consequences of his offending behaviour by taking steps to address his illicit substance use and mental health. He claims to have made lifestyle changes and new pro social choices regarding associations, work and study.

23. In written submissions on behalf of the offender, it was acknowledged that the offender's abstinence from illicit drugs "will be the key to avoid further interactions with the criminal justice system", however, it is noted that the assessment of "severe" was based upon the preceding 12 months and included the near fatal overdose described below. It was submitted the offender is at a "crossroads" in his life: R v Osenkowski (1982) 30 SASR 212 (Osenkowski); R v Ang [2014] ACTCA 17.

24. The prosecution accepted the offender's subjective circumstances were "compelling" (T 7.46). While it was noted the offender has taken steps towards rehabilitation, the prosecution pointed out that the offending occurred after the overdose, but accepted rehabilitation is not a "linear process" (T.8).

25. Counsel for the offender emphasised the aspects of the PSR regarding the offender's attitude to the offending, noting he did not minimise his behaviour and accepted responsibility for his actions. Moreover, the offender expressed remorse in his letter to the Court outlined below. The prosecution accepted that the plea of guilty was indicative of remorse (T 9.34).

26. In evidence before me were a number references in support of the offender which included the following.

27. A reference was from the offender's partner, dated 23 May 2019, which included the following:

At the end of 2017, [the offender's] relationship with his whole family broke down completely, and with that, the entire future he had planned. All the years of hard work and dedication he had put into that future, as well as his support network was gone...[the offender] continued to deteriorate mentally and physically, he stopped going to work and some days he never left the house....At the beginning of 2018, [the offender] vowed that it was time to get some help, he made contact with a fantastic General Practitioner who listened to his concerns and put him in touch with a psychologist.

[Following his overdose] he received support from his family, and I could see that this was what was going to make the biggest difference to his recovery and the path he was to follow. [The offender's] motivation returned and he decided he wanted to begin a post-graduate qualification.

[Following his arrest] it was like I was reunited with the motivated man I had first met three years ago. He expressed his remorse and unlimited amount of times...he expressed to me his embarrassment of his actions and who he had become as a person.

He acknowledges and recognises the severity of his actions and the negative implications it has caused not only for himself, but for those around him and society as a whole. He has expressed to me that he will do whatever it takes to correct his behaviour and return to being a responsible and productive member of society. I believe more than ever, this to be true, as I now see proof of it every single day.

28. A reference from a close long-term friend of the offender, dated 20 May 2019, which included the following:

When I was first informed with these details [of the charges], I was met with dismay and confusion, as this is out of character. These actions are not consistent with the person that I have known for a very long time...[I] have noticed a positive change in his priorities and a renewed focus. [The offender] has since become engaged to his partner and dedicated his energy towards his relationship and long term future.

...

It is clear he has a strong support system around him. [The offender] has openly expressed his remorse for his action[s] and he has indicated to me that he is embarrassed by these events and he understands the severity of the charges. I am confident [he] will continue to devote his energy into his career and health goals and he is ready to move on from these events having learned important lessons.

29. A reference from a former supervisor and colleague, dated 22 April 2019, which included the following:

I have had ample opportunity to assess [the offender] as a reliable and hard-working employee. He has proven himself to be a valuable member of the team, who has grown to discover a passion for, and strong knowledge of, data extraction and analysis...[He] has obviously veered off track, but I understand he has taken steps to better himself and get back on the right path.

30. Also before me is a letter from the offender, which included the following:

I am writing this letter to express my genuine remorse for my offending behaviour. Through my own self-reflection it has been a challenge for me to understand how and why I became the person I had become and why I made the choices I made. This was followed by a deep consideration of where I should go from here and exactly what I want to do with my life.

...

On the 28th of January 2018, I overdosed on cocaine so badly to the point where I had a seizure, stopped breathing, my skin went blue and I fell unconscious. My fiancée at the time witnessed the incident and if it wasn't for her giving me CPR I would have died...After the overdose, I began to seek help trying to live a cleaner, simpler life in a new direction. I spoke with two GPs to get referrals, and then I saw a psychologist to help me deal with my family and career problems. I also spoke with recovered drug addicts that I knew to try and figure out how to fill or replace the void of drugs in my life with more positive and constructive outlets.

...

I have completed the ADAPT drug and alcohol counselling course with DIRECTIONS ACT and I know where I can seek help if I need it, and employ different strategies to keep myself healthy and accountable for my feelings and my actions. I have also begun consulting with EVERYMAN for anger management issues. In hindsight, when everything in my life started falling apart, these were the mental steps and the decisions I needed to make before I started abusing drugs and losing my way. I know now for the future how to be a better, stronger person for not just myself but for those around me, so that I never end up here again.

31. Before me is also a certificate of participation from Directions for the Alcohol Drug Awareness (Harm) Prevention Training dated 26 April 2019.

32. Also before me are letters from medical practitioners regarding the overdose and seizure referred to above.

33. I take these references and letters into account on sentence.

Intensive Corrections Order Assessment Report (ICOAR)

34. When this matter originally came before me on 15 July 2019, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.

35. The ICOAR, dated 24 October 2019, confirms much of the material contained in the PSR and includes the following additional information:

(a) during the assessment period the offender supplied three samples for urinalysis, which all returned negative results;

(b) on 22 October 2019, a drug abuse screening tool was administered covering the preceding 12 months. No problems were reported. The offender reported being abstinent from illicit substances since September 2018; and

(c) the offender reported being "relieved" he was apprehended as it forced him to addressed his mental health and illicit substance issues.

36. The ICOAR concludes with the following opinion:

[The offender] is a 28 year old man with no prior convictions who has been assessed as a low risk of re-offending. He appears to have numerous protective factors in place at this time...[H]e appears to be leading a stable and pro-social life following the current matters. He has a strong history of employment, a supportive family and a stable home. He appears to have fully addressed his illicit substance abuse and has remained abstinent for the last 13 months...

37. The ICAOR concludes that the offender has been assessed as suitable for an ICO.

38. In the course of the proceedings, counsel for the offender provided further written submissions with respect to extra-curial punishment, specifically, the offender's loss of employment. On 27 August 2019, the offender was suspended from his position without pay following the commission of the offences. The offender resigned on 30 August 2019.

39. Counsel for the offender also provided evidence of the loss of employment by the offender's mother as a result of her not informing the federal department about her son's offending. Counsel for the offender clarified that while this was not specifically relied upon as extra-curial punishment, it was relevant to considerations of specific deterrence (T 3.18-24).

40. It was submitted that the loss of employment and future career prospects were an accepted form of extra-curial punishment, citing Stanford v The Queen [2007] NSWCCA 73. In that case, Rothman J stated at [82] and [99]:

In relation to the issues in these grounds to which the applicant refers, mention should be made of the deleterious extra curial effect of the conviction on the applicant.

The applicant was an apprentice locksmith regarded favourably by his TAFE teachers and by his employer. The effect of the conviction is that the applicant will no longer be able to continue with his apprenticeship as a locksmith and will necessarily lose employment. While other employment will be open to the applicant, some of which may use similar skills to those learnt, his chosen career is no longer open to him because of the indirect effect of the conviction. In order to work as a locksmith, it is necessary to have a security guard licence, which is unavailable with a criminal record such as that which the applicant now has. This is a matter which the Court ought to have taken into account in determining sentence: R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398.

...

The applicant is also entitled to have taken into account in fixing this sentence the extra curial effect that this conviction has on his future and the denial to him of his chosen career.

41. I also note the following observation of McHugh J in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [54]:

No doubt it is legitimate to take into account many matters that are personal to the offender and that will have consequences on that person's future life. It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation.

42. The prosecution accepted that the offender losing his employment is a matter the Court can take into account, but submitted it does not mitigate the seriousness of the offending (T 10.35). It is clearly consistent with legal principle, and I therefore accept, the loss of employment does not mitigate the seriousness of the offending. Additionally, also consistent with legal principle, I take into account the loss of employment as a relevant subjective matter.

43. The offender has no criminal history. I accept that the offender is a person of prior good character and that he is therefore entitled to leniency in that regard.

44. Counsel for the offender submitted the pleas were entered at an early opportunity while the matters were still before the Magistrates Court and submitted the discount ought to be in the order of 25%.

45. The prosecution submitted that the plea was demonstrative of the offender's remorse and willingness to facilitate justice, and that it would not be heard against a discount in the range of 25% (T 9.30-35).

46. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48].

47. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50]; Blundell v The Queen [2019] ACTCA 34.

48. Taking into account the legislation and the authorities, I therefore allow a 25% discount for the pleas of guilty.

49. The offender has spent two nights in custody solely referable to these offences.

50. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 at [4] that:

[C]onsiderations to which a sentencing judge is obliged ... to have regard cannot be applied mechanically ... given that the factors that must be taken into account are incommensurable, and ... in many respects, inconsistent

51. I was referred to the case of R v Papadakis [2017] ACTSC 341, by both parties. In that case, the offender pleaded guilty to a number of offences including one offence of trafficking cocaine and one offence of dealing with the proceeds of crime. The trafficking offence related to 152g of cocaine and the dealing offence, $72,470. The offender had no relevant criminal history, had completed university and was employed, sold cocaine to support his habits, and denied using drugs after arrest. The trafficking offence was reduced by approximately 15% to 18 months' imprisonment. The offender received two months imprisonment for the dealing offence. The total sentence was served by way of an Intensive Corrections Order

52. Counsel for the offender also referred to the following decisions.

53. In R v Brown [2019] ACTSC 59, the offender pleaded guilty to one count of trafficking methylamphetamine and one count of possession of MDA. Offences of possession of a weapon and possession of stolen property were also taken into account. The offender was found to have a over 44g of substances containing methylamphetamine and the offending was committed while the offender was on bail. The seriousness of the trafficking offence was assessed as being below mid-range. After a discount of 15%, the offender received at 17 months' imprisonment for the trafficking charge and 52 days for the possession charge.

54. In R v Di Bitonto [2016] ACTSC 280, the offender pleaded guilty to one offence of trafficking in MDMA and two offences of possession of a drug of dependence were also taken into account. The amount of the drug was considered "relatively small" and the offender was found to be a low-level street dealer. It was noted the offender witnessed domestic violence as a child and was the victim of a number of abusive relationships, one of which left her close to death or permanent brain damage. The offender was diagnosed with borderline personality disorder and other health problems, and she had taken major steps towards rehabilitation. After an approximate discount of 15%, the offender received a sentence of 10 months' imprisonment, fully suspended, with a 12-month good behaviour order.

55. The prosecution also referred to the decision of R v Campbell [2017] ACTSC 74, where the 28 year old offender pleaded guilty to one offence of trafficking methylamphetamine and heroin and one offence of dealing with the proceeds of crime. A further trafficking offence was taken into account. The amount of drugs was 3.173 times the trafficable quantity and was found to be a street level dealer. The offences were committed while on parole. The offender had a significant criminal history and a disadvantaged upbringing but was found to have made steps towards rehabilitation. Following a discount of approximately 15%, the offender received a sentence of 13 months imprisonment for the trafficking offence and three months for the proceeds of crime offence, served concurrently.

56. The offender has requested that, under Part 4.4 of the Sentencing Act, an offence (referred to above at [2]) be taken into account for the purposes of sentencing in relation to the trafficking in a controlled drug (MDMA) offence.

57. A number of relevant principles in relation to consideration of additional offences were set out by the Court of Appeal in R v Campbell [2010] ACTCA 20 from [46]-[50], including:

(a) The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal ([43], Sentencing Act s 57(1));

(b) Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account ([46], Sentencing Act s 57(1));

(c) In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution ([47]) and in taking them into account they will no doubt be considered in the assessment of the offender's character and prospects of rehabilitation ([50]);

(d) It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has ([49]) and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so ([50]);

(e) "Taking offences into account" means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed ([50]); and

(f) The offender is not to be sentenced for the additional sentences ([50]).

58. I will take into account when determining the appropriate sentence for trafficking in a controlled drug (MDMA), the additional offence referred to above (at [2]). I also have regard to the principles outlined in Campbell as to how the offence is to be taken into account.

59. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

60. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes, which include punishment, general and specific deterrence, the protection of the community, accountability and denunciation, are important sentencing considerations.

61. Rehabilitation is also an important consideration having regard to the offender's previous good character and remorse.

62. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

63. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]- [30].

64. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71]. Significant concurrence is appropriate in this case in light of the connected nature of the offences.

65. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 (Hill) where a person has very good prospects of rehabilitation, as the offender does, the Court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice. It is clear that, as submitted by his counsel, the offender is at a crossroads in his life: Osenkowski.

66. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, while it was conceded that the s 10 threshold had been crossed, it was submitted by counsel for the offender that a term of imprisonment could be served by way of an ICO. I accept that submission as it accords with my view of the offender's case. The prosecution did not cavil with the sentence being served by way of an ICO (T 11.10).

67. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters.

68. The appropriate sentence for the offence of trafficking is 2 years reduced to 18 months on account of the discount for the plea of guilty.

69. The appropriate sentence for the offence of dealing with the proceeds of crime is 8 months reduced to 6 months on account of the discount for the plea of guilty.

(a) I record convictions in relation to the offences.

(b) In respect of the offence of trafficking in a controlled drug, namely MDMA, contrary to section 603(7) of the Criminal Code (CC18/12009), the offender is sentenced to a term of 18 months of imprisonment, commencing on 8 February 2020 and ending on 7 August 2021.

(c) In respect of the offence of dealing with the proceeds of crime contrary to section 114C of the Crimes Act (CC18/12008), the offender is sentenced to a term of 6 months of imprisonment, commencing on 8 April 2021 and ending on 7 October 2021.

(d) The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT). I impose the core conditions.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson