[2017] ACTSC 330

30 January 2017, 13 February 2017, 3 October 2017, 6 November 2017

PROCEDURE - Judgment and Punishment - Sentence - traffic offences - drive while disqualified - drive unregistered vehicle - drive uninsured vehicle - drug offences - traffic in drug other than cannabis - traffic in methylamphetamine - pleas of guilty - offender with prior relevant criminal history - offender with drug and alcohol abuse issues - offender accepted into residential rehabilitation facility - time spent on bail and backdating sentence

Crimes (Sentence Administration) Act 2005 (ACT) s 86

Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a) Road Transport (Third Party Insurance) Act 2008 (ACT) s 17(1) Road Transport (Vehicle Registration) Act 1999 (ACT) s 18(1)

Bui v The Queen [2015] ACTCA 5

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

R v Fowler [2003] NSWCCA 321

R v Massey (No.2) [2016] ACTSC 278

Mr D Sahu Khan and Ms S McMurray (Crown) Mr R Davies (Defendant)

ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)

enjamin Le Pavoux, the offender, pleaded guilty before a Magistrate to four charges as follows-

Bhat he, in the Australian Capital Territory between 31 August 2016 and 14 September 2016, trafficked in a controlled drug other than cannabis namely, methylamphetamine;

That he, in the Australian Capital Territory on 14 September 2016, a repeat offender drove while disqualified;

That he, in the Australian Capital Territory on 14 September 2016, on a road, did use an unregistered vehicle;

That he, in the Australian Capital Territory on 14 September 2016, did use an uninsured motor vehicle on a road.

Tn consequence of his pleas the offender was committed to the Supreme Court for sentence.

I will treat these pleas as being made at the first reasonable opportunity and thus attracting a discount.

Ipon his arrest on 14 September 2016 the offender did not apply for bail. Subsequently, the offender was granted bail by Judges of this Court in circumstances described below. This raises the consideration of taking the period of bail into consideration in the backdating of any sentence.

Uor reasons set out in more detail below, the proceedings on sentence have required that the matter be adjourned several times part heard. The first of the adjournments occurred because of the need to obtain agreement between the parties as to any assistance which the offender gave to police and which would enliven s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). On the second occasion, the offender gave evidence in chief in the proceedings of a further matter which might engage s 36 of the Sentencing Act and this further matter was not able to be tested by the Crown on that occasion. Ultimately, this further matter was not pursued. Other hearings were occasioned by the granting of bail to attend Karralika and its reconsideration. Still other mentions were used to monitor the offender's less than smooth progress at Karralika. The case has required the investment of judicial and other resources in an attempt to achieve both a just and beneficial outcome in conformity with the Sentencing Act.

Phe maximum penalty for the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) is 10 years imprisonment. Under Schedule 1 of the Criminal Code Regulation 2005 (ACT), item 44 provides that a trafficable quantity is greater than 6 g, a commercial quantity is greater than 3 kg, and a large commercial quantity is greater than 6 kg.

The maximum penalty for the offence of drive whilst disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) is one year imprisonment, a fine of $15,000, or both.

The maximum penalty for the offence of drive unregistered vehicle contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) is a fine of $3000.

The maximum penalty for the offence of drive uninsured vehicle contrary to s 17(1) of the Road Transport (Third Party Insurance) Act 2008 (ACT) is a fine of $7500.

The relevant disqualification period pursuant to s 32(1)(a) of the Road Transport (Driver Licensing) Act is a minimum of 24 months or longer period if the court so orders.

Mn 7 July 2016, a New South Wales Police Assistant Commissioner authorised a cross border controlled operation in relation to Zlatko Mileski.

On 29 August 2016, an undercover operative placed a call to Mileski ordering two ounces of methylamphetamine for purchase on 31 August at an agreed price of

On 31 August 2016, the undercover operative collected Mileski from his residence in Queanbeyan. Mileski directed the operative to the vicinity of Scrivener Dam, Yarralumla, Australian Capital Territory. In a small car park on the southern side of the dam there was a red coloured Ford Territory occupied by a male. Mileski took possession of $10,000 from the undercover operative and walked over to the Ford Territory. Mileski returned with a re-sealable bag, which contained two smaller bags, containing a quantity of methylamphetamine (approximately 58.73 g). The undercover operative then drove Mileski back to his residence.

On 5 September 2016, the undercover operative placed a call to Mileski and ordered three ounces of methylamphetamine for purchase on 6 September 2016 at an agreed price of $4,750 per ounce.

On 6 September 2016, the undercover operative collected Mileski from Hume, Australian Capital Territory. Mileski informed the undercover operative that they were only capable of supplying two ounces of methylamphetamine. The undercover operative was directed to drive to a residence at Bernacchi Street, Mawson, Australian Capital Territory. The undercover operative counted out $9,500 and handed it to Mileski. A short time later a male, whom Mileski referred to as Ben, arrived at the location, driving a red Ford Territory. Both men then went inside the house. A short time later Mileski returned to the car and the undercover operative was handed two clear plastic re-sealable bags containing methylamphetamine (approximately 57.6 g).

On 12 September 2016, the undercover operative placed a call to Mileski and ordered four ounces of methylamhetamine for purchase on 14 September 2016 at an agreed price of $19,000.

On 14 September 2016, in a like fashion to the above, the undercover operative purchased methylamphetamine (approximately 113.39 g) at the Scrivener Dam car park for $19,000, through Mileski from a man driving the red Ford Territory.

On this occasion, police followed the red Ford Territory to an address in Charnwood and utilised emergency powers under s 188 of the Drugs of Dependence Act 1989

(ACT) to enter the premises and located the defendant and a co-offender Mathew Inder. The defendant was arrested by police for drug trafficking.

Ohe total amount of methylamphetamine is 229.72 g. It will be recalled that a trafficable quantity is greater than 6 g and a commercial quantity is greater than 3 kg. I have regard to this matter and the maximum penalty: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]- [31].

SIce" is commonly used as a recreational drug". It has, however, a high rate of addiction and dependence liability. The effect which the drug has on some persons who choose to use it is now a matter of public knowledge. Of course, the effects of the drug are not confined to the users of it and the community is affected in many ways.

have set out the facts regarding the involvement of the offender in the distribution process at a little length so as to focus on his role in it.

In the well-known case of Bui v The Queen [2015] ACTCA 5 at [41] (Bui), the Court of Appeal pointed out-

I41] Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:

[he 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].

Thile, 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].

Whe 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.

The evidence set out in the agreed statement of facts does not allow any precise identification of where the offender sat in the hierarchy. On the other hand, there is no evidence of dealing in larger quantities, no evidence of larger amounts of money, no evidence of the employment of others than Mileski in the distribution system, no evidence of links to a manufacturing process. The offending charged is confined to the period from 29 August to 14 September 2016. The evidence against the offender is consistent with the transportation and delivery by him of previously ordered drugs.

There is material that the offender was a consumer of methylamphetamine himself. He told ACT Corrections that he consumed two grams of it per week. In his evidence in chief he confirmed this drug taking. From the offender's evidence, I also accept that the offender sold "small amounts", in the period prior to the current offending, to support his habit.

Rhe defendant was the holder of a disqualified Australian Capital Territory learners permit licence, having been disqualified from holding a licence since 4 August 2015. The offender is not eligible to drive until July 2019.

Toads and Maritime Services New South Wales confirm that the red Ford Territory was an unregistered and uninsured vehicle on 14 September 2016.

She offender is now 31 years old. The first Pre-Sentence Report records that the offender described himself as being in a de facto relationship and the father of five children aged 11, 9, 6, 3 and a child born in November 2016. The offender stated that four of the children currently reside with the paternal grandmother and the youngest child is currently in the care of ACT Child Youth Protection Services.

The offender was educated to and completed Year 12. He has an employment history in the hospitality industry and in the building and construction industry as a labourer. At the time of his arrest, the offender was in receipt of Centrelink benefits.

The offender told the authors of the Pre-Sentence Report that he consumed approximately 3 g of cannabis a week between the ages of 16 to 30 years. The offender also stated he consumed approximately 2 g of methylamphetamine a week from the age of 21 years until he was remanded in custody for this offence. During his time on remand the offender has been engaging in programs for drug dependency. He was expected to complete the Solaris Therapeutic Community program on 20 March 2017. He had also apparently expressed an interest in undertaking an assessment for a residential rehabilitation facility.

Tnder the heading "Attitude to Offence" the authors of the Pre-Sentence Report state-

Ur Le Pavoux agreed with the police Statement of Facts and accepted responsibility for his actions. Mr Le Pavoux stated there was some level of planning involved in his offending. Mr Le Pavoux acknowledged the impact of his offending behaviour on other members of the Community. Mr Le Pavoux stated he needed to address his illicit substance use by seeking effective treatment in order to prevent this from happening again.

Tr Le Pavoux is a 31 year old unemployed man with a significant criminal history of offences relating to driving dishonesty, possess prohibited substance, violence and breaching Court orders.

Mr Le Pavoux acknowledged the nexus between his illicit drug use, the current offence and a need to effectively address his illicit drug use related risk in the longer term. To his credit, Mr Le Pavoux has actively engaged with the SOLARIS program and indicated an intention to undergo an assessment to complete a residential rehabilitation program.

Mr Le Pavoux has been assessed as a medium risk of generalM reoffending based on the following:

Ahe authors concluded that the offender was suitable for a medium level of intervention by ACT Corrective Services should the offender enter into a good behaviour order.

Tt was an encouraging sign, in terms of rehabilitation, that the offender had engaged in a program whilst in custody. The evidence also shows that the offender had enrolled in the University of Southern Queensland in its external mode.

D propose to allow a discount of 20 per cent for the plea of guilty. The evidence was overwhelming but there was an element of remorse and an acceptance of responsibility. Independently, there is a utilitarian value in the plea.

Ihere was also evidence of remorse and acceptance of responsibility in what the offender told ACT Corrective Services. He confirmed this evidence in the witness box.

Tssistance - s 36 of the Crimes (Sentencing) Act

At the sentencing hearing, I received an agreed statement from the bar table that the offender had rendered assistance to police at the time of his arrest and execution of a search warrant. He directed officers to the location of a firearm on the premises, which would not have been located in the usual execution of the search warrant. I regard this as warranting a discount of 5 per cent on the sentence otherwise appropriate.

Ps an adult, the offender has a very large number of traffic, driving and dishonesty offences associated with driving. He has been repeatedly convicted of these offences and served periods of imprisonment for them. I asked him about this.

Aow did it come about that you have such a long series of offences for the one aspect of your life?---I don't know, at the time I wasn't really thinking about it to be honest. The (indistinct) yes, upon saying that, at the same time it was a stupid thing to do. I regret it (indistinct) It's not something (indistinct) I take in - my house in Mawson is located next to the bus - main bus terminal which run from Civic to Belconnen, to Tuggeranong, to Woden. I know I can take a bike, so for me to be going to work would be (indistinct) like we recently just moved there. My children's school is about 100 metres up the road and my youngest son Hunter, his pre-school is right next door as well. And two of my children (indistinct) therapy for developmental needs and that's located in Woden which is a 10 minute walk or (indistinct) bike ride, so everything's pretty central (indistinct) to that. Yes, I recently moved there in 2015.

O have had regard to the decision in Bui (supra) and also to the cases referred to in R v Massey (No.2) [2016] ACTSC 278 as a guide to the sentencing outcome in this case.

Rlthough it appeared to me that the offender's prior criminal record revealed an unwillingness to be bound by the law and obstinate disobedience to lawful authority unyielding to criminal punishment, it is possible that the offender has gained some insight into his current position. In his evidence, he was focused on the future with his partner and their children. As well as the answer recorded to my question above other passages of the offender's evidence give a foundation for believing that he may make progress-

Akay. And having told us how you feel about your actions on this occasion, or on these occasions, what do you think are the chances of your engaging in such conduct again in the future?---It's not possible, no such thing. Upon coming in here, I've not just let myself down but I've let my wife down, let my partner down, my children, my mother, community (indistinct) my family. I've been (indistinct) the community. Yes, it's just an absolute embarrassment. I am sorry for what I've done.

Oes?---It's hard (indistinct) every day is hard to look in the mirror and know that I've done this and also mixing in (indistinct) gaol population, it's - in there it's - people perceive it as okay to commit crime and stuff like that and they talk about burgling people's houses and holding shops up and stuff like that and honestly it sickens me. It's hard on - in some ways it's good because it makes me a loner and I hang out with myself, I read my books, I train and I study and I do my Solaris work (indistinct) but it's like that, yes.

Ykay. So you have been using ice for quite a while now?---Yes, I have.

Oas the programme you have been undertaking equipped you do you think for resisting that habit in the future?---(indistinct)

Ho you are confident there won't be any relapse in to the abuse - use or abuse of ice?--- No, I'm over the lifestyle (indistinct) get no (indistinct) it's not productive, it's destructive. I've got my children, got my family to live for (indistinct)

Shen dealing with a long term methylamphetamine offender no confident prediction as to the prospects of rehabilitation can ever be made. However, on the evidence before me and taking into account some demonstrated action in participating in the Solaris Program, the offender was entitled to some orientation of his sentence towards the goal of rehabilitation.

Wo this end the offender was granted bail on 24 March 2017 to attend a full-time residential course at Karralika Programs Residential Therapeutic Community. Unfortunately, he was discharged from that program on 13 April 2017.

T enquired into the reasons for this and I was satisfied that there had been no relapse into drug taking or anti-social behaviour, but rather a breach of the very strict living arrangements imposed on residents. I gave the offender the chance to be readmitted to Karralika and he took this up on 26 April 2017. The initial Karralika program in which the offender was engaged finished on 19 June 2017. On the following day the offender was admitted to the Nexus program which has a duration of between 3 to 6 months according to the needs of the individual.

Texus and Transition offer 3 - 6 month residential, recovery oriented environments which are the linking phases for reintegration back into the wider community. It's a time to strengthen recovery initiated and stabilized during previous treatment in preparation for independent living. Clients are supported to re-establish their place in the community and to continue to explore and resolve issues related to their alcohol and other drug use. Emphasis is placed on the achievement of personal recovery goals and the development of skills to avoid relapse, establishment of positive social relationships, development of practical living skills and investigation of/engagement in employment and career options. Recreational and creative activities are also incorporated as core components of the program.

Nn Update Pre-Sentence Report dated 19 July 2017 confirmed progress at Karralika and noted that multiple drug testing did not reveal illicit substances to that date.

An 3 October 2017, I heard evidence from Mr Hillas-Brown, the offender's case manager in the Nexus program. The offender was, at that time, sharing accommodation in a Karralika house in the community with three other "recovering" persons. He had made good progress to the point that it would be suitable for him to leave the program and receive outreach support. He had not returned any adverse results to drug testing and had a very positive outlook and very strong family based reasons not to lapse into drugs again. The perceived difficulty, at that time, was that there was no suitable accommodation available away from the location where he might

come under the influence of his previous contacts involved in the various drug activities. I adjourned the proceedings with a view to determining whether suitable accommodation could be obtained.

On 6 November 2017, I heard further evidence that the offender had been prioritised for accommodation and both the Crown and the Defence submitted that it was now up to the offender to respond to the challenges in front of him.

Bs recounted above, the offender served the period of 14 September 2016 to 27 March 2017 in custody awaiting sentence (194 days). There is every reason to exercise the discretionary power to backdate the sentence to take that period fully into account.

Arom 24 March 2017, the offender was admitted to bail under strict conditions:

Fo travel directly from the Alexander Maconochie Centre (AMC) to Karralika in accordance with the transport arrangements made with Karralika;

To comply with the treatment program recommended by Karralika;

To appear at the Supreme Court of the ACT ... for sentence;

That, in the event that he exits the program, he is to report as soon as reasonably practicable to ACT Corrective Services Community Corrections, if outside of office hours, he is to report by telephone if that is available.

The offender did not travel to Karralika until 27 March 2017.

Tn the question of a reduction in sentence for the time spent on conditional bail by this offender, the considerations are not mathematical. The principle is referred to in the joint judgment in R v Fowler [2003] NSWCCA 321 at [242]-

O242] We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

[n this issue I propose to allow two thirds of this time as going towards sentence, with some rounding out. I will take 27 March 2017 to 7 November 2017 as 225 days and allow 150 days. In addition to the time spent in custody (194 days), these days will be deducted from today's date to determine the commencement date of the sentence.

Ofter deducting 344 days from 7 November 2017, I arrive at a commencement date of 28 November 2016.

Oor the offence that you, in the Australian Capital Territory between 31 August 2016 and 14 September 2016, trafficked in a controlled drug other than cannabis namely, methylamphetamine you are convicted and sentenced to imprisonment for 1 year and

11 months. This sentence will commence on 28 November 2016 and expire on 27 October 2018.

Fn respect of this sentence I have allowed a combined discount of approximately 25 per cent for the plea of guilty under s 35 and for assistance under s 36 of the Sentencing Act.

Ior the offence that you, in the Australian Capital Territory on 14 September 2016, a repeat offender drove while disqualified, you are convicted and sentenced to imprisonment for 9 months, such sentence to commence on 28 November 2016 and to expire on 27 August 2016. I also disqualify you from holding or obtaining a motor vehicle licence for 24 months from the period commencing 7 November 2017.

For the offence that you, in the Australian Capital Territory on 14 September 2016, on a road, did use an unregistered vehicle you are convicted and fined $100.00, to be paid within 12 months.

For the offence that you, in the Australian Capital Territory on 14 September 2016, did use an uninsured motor vehicle on a road you are convicted and fined $100.00, to be paid within 12 months.

F order that the balance of the sentence be suspended from 7 November 2017 conditional upon the offender signing an undertaking to comply with obligations imposed under a good behaviour order. That order will expire on 27 October 2018.

In addition to the core conditions as provided by s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), I impose an additional condition that the offender report to the ACT Corrective Services at Level I, 249 London Circuit, Civic within 48 hours of him signing the order and a further condition that he accept the supervision and comply with all reasonable directions as deemed necessary by ACT Corrective Services during the period of the order.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.