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[2015] ACTSC 159
Supreme Court of the ACT
2015-06-15
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Practice and Procedure - Bail - Applicant seeking rehabilitation - Extensive criminal history - Previous failure to honour bail undertaking
Crimes Act 1900 (ACT), s 114B
Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168
R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473
R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314
R v Kristiansen [2008] ACTSC 83
R v Laipato (No 2) [2014] ACTSC 363
R v Sladic [2014] ACTSC 56
Saga v Reid [2010] ACTSC 59
1. Thor Kristiansen, an applicant for bail, has a long and serious criminal history. He has been convicted of 100 offences, with the majority being traffic offences, though a significant number of them are more serious such offences, such as 10 convictions for driving whilst disqualified, and nearly as many dishonesty offences, including offences of aggravated burglary and burglary. He has also eight offences of violence on his record, as well as breaches of bail undertakings and breaches of court orders.
2. Most recently, he was sentenced to imprisonment for four offences of driving whilst disqualified and one offence of forgery. Convictions for these offences also breached a parole order which had been made in connection with a sentence of imprisonment for offences of theft, assault occasioning actual bodily harm, aggravated burglary, damaging property and attempting to take a motor vehicle without consent.
3. Those convictions breached a Good Behaviour Order made on 11 December 2008, when a sentence of imprisonment was partially suspended for offences of burglary, theft, common assault, taking a motor vehicle without consent and hindering a police officer. Again, those convictions also breached earlier Good Behaviour Orders.
4. Mr Kristiansen's sentence included a nonparole period from 19 December 2012 to 16 February 2014, with the sentence itself to end on 19 January 2016. It appears that Mr Kristiansen was not released on parole on or about 16 February 2014 and remained in custody.
5. On 30 October 2014, he was charged with four serious offences alleged to have been committed between 3 November 2013 and 15 May 2014. These are:
(1) that he conspired, with four other named persons, to traffic in methylamphetamine, an offence contrary to s 48 of the Criminal Code 2002 (ACT), punishable as if the offence conspired had been committed, namely, in the offence of trafficking in methylamphetamine, attracting a maximum penalty of 1000 penalty units (that is, a total fine of $140,000) and imprisonment for 10 years;
(2) trafficking in methylamphetamine, an offence contrary to s 627 of the Criminal Code, which attracts the same penalty;
(3) participating in a criminal group which he knew was a criminal group and which he knew or was reckless about whether his participation contributed to criminal activity, an offence contrary to s 652 of the Criminal Code and attracting a maximum penalty of five years' imprisonment; and
(4) money laundering, namely, dealing with $79,540, being the proceeds of crime, which he knew or was reckless about the fact that it was derived from unlawful activity, an offence contrary to s 114B of the Crimes Act 1900 (ACT), attracting a maximum penalty of 1000 penalty units (that is a fine of $140,000) and imprisonment for 10 years.
6. An indictment, however, has been filed charging Mr Kristiansen and four others only with a conspiracy charge. That is the charge on which Mr Kristiansen is currently being held without bail in addition to the current sentences, to which I will later refer.
7. The case statement (see R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 468-9; [26]- [35]) is a lengthy, detailed document. I do not propose to summarise it more than briefly so that the broad outline of the offence charged is clear. The essence of the charge is that Mr Kristiansen is said to have conspired with Anthony Hagen as co-ordinators and principal dealers in drug trafficking being committed within the ACT, which incorporated the Alexander Maconochie Centre (the AMC).
8. They sourced the drugs, apparently methylamphetamine, principally from Sydney, from another person, Adley Tsang, in Sydney, whom Mr Kristiansen and Mr Hagen met within the AMC when Mr Tsang was also in custody there. Mr Hagen and Mr Kristiansen used mobile telephones to make contact from within the AMC to arrange the purchase, wrapping and delivery of the drug and then to organise and control its sale by associates outside the AMC.
9. Evidence of telephone conversations intercepted under warrant by police is said to be significant evidence of the business. The business came to an end when drug couriers were arrested in New South Wales after apparently purchasing drugs from the supplier arranged by Mr Tsang. The drugs, when purchased, were to be distributed into the AMC, as well as outside, and, in addition, drug paraphernalia was supplied within the AMC.
10. A date for the trial has not been set. It is estimated that the trial will take two weeks. The witness list contains 51 names of witnesses whom the Crown will call, 33 names of persons whose statements the Crown will tender, unless Mr Kristiansen requires their attendance, and nine names of persons who have not provided a statement to police and who may or may not be called to give evidence.
11. For reasons not disclosed to me, Mr Kristiansen's application for parole was not decided until this year. He appeared before the Sentence Administration Board on 12 May and 9 June 2015. At the earlier hearing, it was determined that Mr Kristiansen would be released on parole if a bed became available for him at the Karralika Therapeutic Community. A bed did become available and, on 9 June 2015, he was granted parole to attend that facility. A bed is available from 16 June 2015. I have had evidence of this.
12. I briefly describe the Karralika Therapeutic Community adult program in R v Sladic [2014] ACTSC 56 at [23], where I said that it offers:
Rehabilitation care for adults with alcohol and other drug dependencies, using the therapeutic community approach to treatment.
13. The program is provided within a safe environment, free of alcohol and nonprescription drugs. The agency described the treatment as:
Based on the belief that a person's dependence on alcohol or other drugs is symptomatic of underlying personal difficulties. We provide an environment that not only assists people to overcome their dependence but also assists in the development of positive life skills to help them choose a better life and continue their recovery journey.
14. The agency then describes the program as follows:
Our program focuses upon individual personal growth to replace alcohol and other drug dependence. It includes life and job skills training, individual case management and recovery goal setting, along with group work and access to specialist services from other agencies. We can support the diverse and often complex needs of each resident within the Therapeutic Community. That is why each resident has a personal plan and case worker, and the resources and tools to support their own treatment goals.
Preparation for future employment and life skills training are important components of the program. Clients have the opportunity to learn new skills to support their growth and potential employment opportunities when their treatment program ends and they return to the community.
Staff work within a creative and innovative therapeutic environment and are skilled in clinical practices and present strong role models for clients in treatment. Our multidisciplinary team is professionally trained in the treatment of those with alcohol and other drug dependencies and some have lived experience. We also have staff with qualifications in psychology, nursing, counselling, addiction studies and other related disciplines.
15. Mr Kristiansen also gave evidence. He said that he had, over the last year, started to recognise the problems which drug taking had created for him. He started looking at ways to better himself and to distance himself from his former associates with whom he was involved with criminal activity. He said that late last year he realised that he had been simply turning to drugs to solve his problems without caring for the consequences. He recognised that this had just made his problems worse.
16. He decided to do something about it. He identified New Year's Day as the point when he committed to reform. He has a daughter, nearly two years old now, and recognised that he would not be a father to her if he was in the AMC, a place where he would be likely to continue to reside for many years hence unless he attended to his reform. His partner and his daughter do visit him in the AMC regularly, no doubt a reminder to him of what he is missing by being in custody.
17. He has stopped using drugs. He has attended the education unit at the AMC to improve his literacy and numeracy skills. He has completed the SMART Recovery program. He completed the Solaris Therapeutic Community program in 2011. That, in itself, is no preventer of his further rehabilitation. As I said in Saga v Reid [2010] ACTSC 59 at [89], it often takes many failed attempts before drug addicts will be able to manage their addiction.
18. Being charged with the current offences was somewhat of a turning point for him and he sought a further rehabilitation opportunity, which Karralika has provided. He said that he has worked hard to satisfy the Sentence Administration Board that he should be granted parole and it was granted only because of the admission to the facility.
19. He recognised that, if he failed to progress at Karralika, he would be returned to the AMC to complete the rest of his sentence. He also understood that, if convicted of the current offence, he would, even if successful in his rehabilitation, be almost certain to be resentenced to a term of imprisonment for that further offence. He said that, although that was undesirable in many cases, he was ready to face that.
20. Mr Kristiansen had no disciplinary matters in the AMC this year. His last disciplinary matter was an assault on a detainee, committed on 6 December 2014. He has also had regular drug screening while in the AMC and the last five screens have been negative for illicit drugs.
21. A letter from Mr Kristiansen's partner's uncle, Mr Vladko Rasic, was tendered, in which Mr Rasic said that, on Mr Kristiansen's release from custody, he would be provided with a fulltime position as a labourer.
22. A letter from Mr Kristiansen's partner was also tendered. She was, however, a coaccused. Nevertheless, she described Mr Kristiansen's regret at his criminal behaviour and how he understood the seriousness of his criminality. She indicated that he was committed to his rehabilitation and expressed her view that he had the potential to succeed. She described him as a loving, caring and supportive partner and a "hands-on" father, who shares "an exceptional relationship with our daughter".
23. Mr J Hiscox, who appeared for the Crown, opposed bail on the ground that there was an unacceptable risk of Mr Kristiansen reoffending. I note that, in 2008, I dealt with an application for bail by Mr Kristiansen, R v Kristiansen [2008] ACTSC 83 at [31], [41] and I said:
[31] The applicant is 19 years old but in that time has managed to accumulate a distressing record of over 70 offences spanning four years, although many are traffic offences. A number of them are serious. It is fair to note, however, that the most recent convictions were for offences committed in May 2007
...
[41] The applicant's record gives no confidence that he will not reoffend in at least some way, and although bail conditions can prohibit activities such as driving, he has shown no inclination to abide by court orders to this effect in the past.
24. Since then, of course, Mr Kristiansen has managed to accumulate another 30 convictions.
25. The Crown also submitted that the case against Mr Kristiansen was a strong one, apparently relying especially on the telephone intercept material, further linking it to the arrests of the courier and the seller in Sydney. It was, it was submitted, a serious example of trafficking. There could, it was suggested, be no reasonable question that the drugs were only for personal use of the conspirators. Thus, the addiction of Mr Kristiansen does not remove the issue from one of greed as the prime motivator.
26. Reference was also made to the context to the seizure of approximately $79,000 in cash during the execution of a search warrant by police in Canberra. Indeed, I was told that the interceptions recorded a conversation about how much money was to be made from this business. Profitability was an important factor because it was a strong motivation for further offending. Further reference was made to the attitude displayed by Mr Kristiansen to court orders. As noted, he had failed to honour his bail undertaking on three occasions and had breached court orders in eight cases, including the latest three sentencing occasions.
27. Mr D Perkins, who appeared for Mr Kristiansen, submitted that the trial is unlikely to take place before next year. As noted, the trial will take at least two weeks and it is unlikely that such a period of time will be found before then.
28. Mr Kristiansen has managed to complete the Solaris program and, as I have already noted, now that he is on remand and not serving his sentence he will not be able to access as many rehabilitative programs which will enable him to take advantage of his current commitment to reform. Mr Perkins submitted that the grant of parole by the Sentence Administration Board was a significant recognition of the commitment by Mr Kristiansen to reform is sincere. He has support in the community and has, for nearly six months, made palpable and productive efforts to remain out of trouble.
29. The court must, as clearly pointed out in Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], be sceptical about accused persons suddenly seeing the error of their ways. On the other hand, people who are genuinely at a crossroad should be encouraged by the courts to follow the pathway of reform. In this case, six months is not a long time to show reform but that is not necessarily what is required. After all, there is no point in Mr Kristiansen going to Karralika if he has already managed to get his drug addiction under control.
30. As to the risk of further offending, the courts have made it clear that this is a matter that is to be based on evidence and not on suspicion. See Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168. Of course, Mr Kristiansen's record is powerful evidence of the risk, especially as he has been offered leniency in the past and yet has still reoffended, breaching court orders on the way.
31. On the other hand, if a record is to permanently result in a prediction of further criminality, then Mr Kristiansen would never be able to secure bail. Of course, the passage of time without further offending would moderate this.
32. This is a difficult decision. I am mindful of what I said in R v Laipato (No 2) [2014] ACTSC 363 at [1]:
Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged. Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent. Nevertheless, bail has become highly regulated by statute as the legislature has reacted to the demands of the community.
33. In my view, Mr Kristiansen has shown that he is ready for a rehabilitation program and, ultimately, the community will be safer if he achieves that rehabilitation. I consider that the bail conditions can minimise the risk of reoffending and that the environment of the Karralika Therapeutic Community will be protective of the community's security to a reasonable degree. Accordingly, but with some hesitation, I am prepared to grant him bail.
34. I will grant Mr Kristiansen bail to appear to take his trial, on a date to be notified by the Registrar, on the following conditions:
1. That he be released from the Alexander Maconochie Centre on 16 June 2015, not before 9:00am, in to the company of an employee from the Karralika Therapeutic Community and proceed immediately and directly to the Karralika residential program located at 55 Keverstone Circuit, Isabella Plains;
2. That, if he is not admitted to the Karralika program, if he is discharged from the Karralika program or if he leaves the program, self-discharged or otherwise, before its conclusion, he present himself within three hours of his departure from the program to the Registrar of the Supreme Court of the ACT between the hours of 8.30am and 4.15pm or, alternatively, the City police station between the hours of 4.15pm and 8.30am, with a view to his bail being reviewed;
3. That he reside at the Karralika Therapeutic Community and remain there for the duration of the program and remains under the supervision of a Karralika staff member;
4. That he not contact, directly or indirectly, Anthony Hagen, Ryan Malec, Menka Krsteska, Adley Tsang, Adnan Hamdoun, Cherish Jennings, Khobi Garani, Bradley Potts or Louise Simpson;
5. That he not to assault, threaten, intimidate or harass Anthony Hagen, Ryan Malec, Menka Krsteska, Bianca Rasic, Adley Tsang, Adnan Hamdoun, Cherish Jennings, Khobi Garani, Bradley Potts or Louise Simpson;
6. That he not consume illicit substances or alcohol;
7. That he submit to all drug screening and analysis, including the provision of his breath, blood, urine, saliva as directed by a staff member of the Karralika program;
8. That he not be in possession of a mobile phone;
9. That he not be in the driver's seat of a motor vehicle or in the possession of the keys to a motor vehicle;
10. That he be under the supervision of the DirectorGeneral, or her delegate, and obey all reasonable directions of the person delegated to supervise him and that he consent to the staff of Karralika, providing to the person supervising him any information about his attendance and progress at the Karralika program.
[His Honour then spoke directly to Mr Kristiansen]
35. Mr Kristiansen, you heard what I have said. It was touch and go. You have got an absolutely shocking record but you have obviously satisfied the Sentence Administration Board and me that you have seen that the path you are on is the slippery slope. If you are going to continue in the path of criminality, well, you are going to end up in the AMC for a long time and for many, many years thereafter.
36. You may still end up in the AMC if you are found guilty of this very serious offence but if you are committed to your rehabilitation, the Court will support you for that. You now have an opportunity. Do not waste it. You have wasted many opportunities in the past. You have wasted at least three opportunities that the Court has given you through suspended sentences and parole and you find yourself in the AMC.
37. If your genuine commitment on New Year's Day is to turn yourself around, then time in Karralika has, for a number of people, been very successful and I hope it is very successful for you, but step out of line, one toe over the line, and you will be back in the AMC.
38. The most important thing is to spend your time at Karralika productively; that is, participate in the program, get to understand the problems that have led you to be where you are and take the opportunity to work out the strategies, the triggers, the mechanisms that have put you back where you are now.
39. The second most important thing is that it is going to be hard, and if it does not work out, the most important thing is to come straight back to Court or to the police station and hand yourself in. No one guarantees that you will not go back into custody but there is a possibility that something can be worked out. If you do not come back, then the inevitability is that you will go back into custody and that will probably end up being a revolving door where you are in and out and in and out, but mostly in.
40. Do not waste the opportunity I have given you. I hope that you will not destroy the trust that I have put in you on this occasion.
I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.
R
Kristiansen [2015] ACTSC 159
(1999) 92 FCR 168
(2009) 233 FLR 473