R v Malec [2016] ACTSC 329

Crimes (Sentencing) Act 2005 (ACT) s 42

Crimes (Sentencing Administration) Act 2005 (ACT) s 11

Magistrates Court Act 1930 (ACT) s 90B

R v Rasic [2016] ACTSC 156

SCC 57 of 2015; SCC 59 of 2015

1. Ryan Malec, you have pleaded guilty to one charge of conspiring with Thor Kristiansen, Anthony Hagen, Bianca Rasic, Menka Krsteska and Adley Tsang to traffic methylamphetamine between 1 June 2013 and 14 May 2014. It now falls to me to sentence you.

2. You were part of an ongoing drug conspiracy within the Australian Capital Territory. The key organisers of the conspiracy were Thor Kristiansen and Anthony Hagen. Messrs Kristiansen and Hagen used mobile phones to arrange the purchase, packaging and delivery of methylamphetamine into the Alexander Maconochie Centre (AMC). They also used their mobile phones to organise and control the sale of drugs by associates on the outside of the AMC.

3. You joined the conspiracy in late January 2014, and from that time and continuing through until 14 May 2014, you performed a number of overt acts as part of your involvement in the conspiracy. At various times you:

(a) stored and prepared methylamphetamine for sale on behalf of Mr Kristiansen;

(b) stored proceeds from the sale of methylamphetamine on behalf of Mr Kristiansen;

(c) arranged for the introduction of methylamphetamine into the AMC;

(d) sold methylamphetamine;

(e) arranged for couriers to transport methylamphetamine from Sydney to Canberra; and

(f) participated in discussions with Mr Kristiansen about the quality of methylamphetamine with a view to maintaining customer demand for the product.

4. The maximum penalty for the offence of conspiring to traffic in methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code), by virtue of s 48 of the Criminal Code, is 10 years imprisonment, a fine of $150,000 or both.

5. You were first before the Magistrates Court on 21 November 2014 and charged with offences of conspiracy to traffic in a controlled drug other than cannabis, namely methylamphetamine; trafficking in a controlled drug other than cannabis, namely methylamphetamine; money laundering; participating in a criminal group and dealing with the proceeds of crime. You entered pleas of not guilty to each of those charges and you were committed on 19 March 2015 for trial in this Court. Pursuant to s 90B of the Magistrates Court Act 1930 (ACT) the charge of dealing with the proceeds of crime was transferred to this Court as a related offence.

6. On 4 June 2015, an indictment was filed in this Court alleging one count of conspiracy to traffic in a controlled drug other than cannabis, namely methylamphetamine. The matter was listed for a joint trial with your coconspirators to commence on 29 February 2016. That trial date was vacated and the matter was relisted to commence on 14 June 2016. On 8 June 2016, you entered a plea of guilty to the charge of conspiracy. The plea was accepted by the Crown in full satisfaction of all matters.

7. Your counsel submitted to me at the sentence hearing that while this was not a plea at the earliest date there had been delay on the part of the Crown in providing particulars of the case against you and also providing evidence. Your counsel submitted that it was only after receipt of those particulars that you entered a plea of guilty. The Crown did not dispute that there was a delay in providing appropriate material during the negotiation process. I note that you have spent no time in custody in relation to this matter.

8. A detailed Statement of Facts was tendered at your sentence hearing, however, I do not propose to recite those facts in any detail. In R v Rasic [2016] ACTSC 156 (R v Rasic) I detailed the background of the relationships of those who were involved in this conspiracy. I note that you were a friend of Mr Kristiansen and you were not incarcerated in the AMC at any material time.

9. It is important to determine your role in the conspiracy as compared to that of your co-conspirators. By late January 2014 you had begun to store proceeds from the sale of methylamphetamine on behalf of Mr Kristiansen. During this period Mr Kristiansen also used a number of others to store proceeds from the sale of methylamphetamine. Also around this time you stored methylamphetamine on behalf of Mr Kristiansen so that the substance could be sold at a later date.

10. On 1 February 2014, Mr Kristiansen was recorded requesting you to provide one-quarter of a 3.8 gram 8-ball of methylamphetamine to him. You agreed to do so. During this conversation Mr Kristiansen discussed obtaining a courier to drive to Sydney to obtain more methylamphetamine from Mr Tsang. You also discussed the quality of the black-coloured methylamphetamine and future plans. On 5 February 2014, Mr Kristiansen was recorded telling you to 'get that 10 grand you owe me'.

11. On 13 February 2014, you rang Mr Kristiansen's phone. Mr Hagen answered and you spoke with him. During a brief conversation you told Mr Hagen that 'things out here are running smooth anyway'. The next day you rang Mr Kristiansen and advised him that you had spoken to an unknown male who was going to package and introduce methylamphetamine into the AMC by throwing it over the security perimeter of the prison. Shortly afterwards you again rang Mr Kristiansen's phone and Mr Hagen answered. During that conversation you asked Mr Hagen whether he knew what was going on. You and Mr Hagen then discussed the timing of the delivery to be sometime in the early afternoon.

12. Later that afternoon Mr Kristiansen rang you to advise that the prison guards had just completed a perimeter sweep of the AMC. During that conversation Mr Kristiansen requested confirmation as to whether your associate had thrown the methylamphetamine into the AMC so that Mr Kristiansen could send couriers to retrieve the package.

13. Later that afternoon Mr Kristiansen requested you to meet with Ms Rasic and take two balls or seven grams of methylamphetamine to be prepared for sale 'like you usually do, the one and a half'. During that conversation you asked what you would be getting. Mr Kristiansen responded 'two zings'. Upon hearing this you stated, 'what, so what I usually do [?]' Mr Kristiansen further requested that one of the grams be from the batch of pink methylamphetamine.

14. Shortly after that conversation Mr Kristiansen rang Ms Rasic and confirmed that she would be providing you with two balls of pink methylamphetamine. During that conversation Mr Kristiansen told Ms Rasic to give you two balls of white methylamphetamine.

15. On 21 February 2014, you and Mr Kristiansen had a conversation about the agreement with Mr Hagen and your continued operation once Mr Hagen withdrew from the agreement. By 24 February 2014, Mr Kristiansen had provided you with six ounces of methylamphetamine to store and package on his behalf.

16. On 26 February 2014, Mr Kristiansen spoke with you and indicated that Mr Tsang would be visiting Ms Rasic. During that conversation you asked whether you would be putting 'half a B' in an upcoming order to which Mr Kristiansen responded, 'yeah, but like I didn't ask for something big because I didn't know like what, how you were going'. During that conversation Mr Kristiansen also indicated that he would provide a gram of green methylamphetamine for you to try.

17. At some stage prior to 26 March 2014 you handled proceeds from the sale of methylamphetamine on behalf of Mr Kristiansen. On 26 March 2014, police executed a search warrant at the home of a friend of Ms Rasic, Louise Simpson. Within Ms Simpson's home police found 5 bundles of cash totalling $79,540. Your DNA was detected on at least two rubber bands holding the cash together.

18. On 7 May 2014, you and Mr Kristiansen discussed the substandard quality of a recent batch of brown methylamphetamine and your plans to replace it with pink methylamphetamine.

19. On 12 May 2014, you and Mr Kristiansen again spoke on the phone. Within minutes of that telephone call, Mr Kristiansen, or someone using his phone, sent a text message to Adnan Hamdoun with your phone number to allow you both to meet. Later that day you met with Mr Hamdoun to provide brown methylamphetamine for exchange with Mr Tsang. After that meeting you spoke with Mr Kristiansen and queried, 'Was I supposed to get something off him?' Mr Kristiansen confirmed that they would be receiving replacement methylamphetamine the next day. Mr Kristiansen further told you that you could keep some of the methylamphetamine for personal use, however, he did not want them to lose customers on account of the inferior methylamphetamine which was to be exchanged with Mr Tsang.

20. It was the Crown's submission that you were not at the pinnacle of this conspiracy and that the roles of Mr Kristiansen and the deceased, Mr Hagen, were more significant than your role. However, the Crown noted that you engaged in drug trafficking over a period of time and further submitted that you were a loyal lieutenant and effectively, without you acting as a middle man, the operations of the conspiracy and particularly those of Mr Kristiansen and Mr Hagen would have been affected.

21. It was submitted by your counsel that you were heavily using methylamphetamine throughout your involvement in the conspiracy and that as a result your memory of events is not clear. Your counsel also submitted that your principal motivation in your involvement was to furnish and support your own methylamphetamine use but I note that in some of the phone intercept material you were told by Mr Kristiansen that you were able to keep some of the methylamphetamine for your personal use.

22. The Crown did not dispute that you were using methylamphetamine at the time of your offence although it submitted that any form of addiction you may have had at that time could not be considered a mitigating factor.

23. I will now turn to your criminal history. A criminal history in relation to offences committed here in the ACT was tendered, as was a Queensland criminal history. You have one offence of relevance, being a possession of a drug of dependence, which was dealt with in the Magistrates Court in March 2013, although I note that the offence date was in 2012. In relation to that offence you were convicted and a Good Behaviour Order for a period of three months was imposed. On the same date you were also dealt with in the Magistrates Court in relation to a number of other offences. You also have convictions in relation to a number of traffic offences.

24. A Pre-Sentence Report was placed before me. You are currently 27 years of age and you have been subject to episodes of incarceration including full-time custodial remand and periodic detention. Your response to prior community based orders has been noted as poor and breach action has previously been initiated for your non-compliance with your bail conditions, failure to perform community service work, failure to accept supervision and failure to comply with periodic detention obligations.

25. You were born and raised in the ACT and have an older brother. You reported that you have lived in the ACT all your life and had a stable upbringing. You reported maintaining a good relationship with your father and brother. You further reported that your mother passed away in early 2013 which had an impact on family relationships.

26. You have been in your current relationship for four years which has produced one son. You advised the author of the Report that Child and Youth Protection Services removed your son from your partner's care when issues surrounding his safety arose. Your son was placed in the care of his maternal grandmother. You reported having regular visits with your son on a weekly basis. This information was confirmed with the Child Youth Protection Service although it was noted by the author of the Report that visits were supervised by staff at Barnardos.

27. You are currently residing with your father and reported that you would be able to reside with him on a permanent basis. You acknowledged to the author of the Report that it would be in your best interests to remain at your current place of residence for the foreseeable future. You reported having completed education to year 10. You have been employed as a truck driver and a trade assistant in the past, however, you have been unemployed for the past four years. You also advised that you have been in receipt of Centrelink benefits since your release from the AMC on 3 June 2016.

28. You told the author of the Report that since being released from the AMC you have made a conscious effort to not associate with prior acquaintances known to be involved in the criminal justice system as they provide a lack of pro-social rewards and often involved activities that placed you at risk of criminal behaviour.

29. You reported first smoking cannabis at age 13 with your use being irregular until age 21 when your use became daily. This coincides with the commencement of your use of methylamphetamine. From the age of 21 you advised that you were smoking $20 worth of cannabis every two or three days, as well as half a gram of methylamphetamine daily until you ceased all use in February 2016. You do not consider your use of alcohol problematic. You acknowledge the correlation between your offending behaviour and illicit substance abuse, as well as your need to gain support and treatment from appropriate services.

30. Contact with staff at the Child and Youth Protection Service confirmed that they had directed you to complete urinalysis from September 2015 until late June this year. Negative results were given on 10 September 2015, 23 November 2015 and 10, 14, 16, 20 and 21 June 2016. One positive result was given on 7 December 2015 for amphetamines.

31. You also advised that you completed an assessment to enter the Canberra Recovery Service residential 12 Step program. This information was confirmed and since being released from the AMC you have contacted the service by phone on two separate occasions. The author of the Report noted that your file will be closed on 12 August 2016 if you made no further contact and a new assessment would then be required.

32. You acknowledged responsibility to the author of the Report for your offending behaviour, although you claimed to be unaware of your co-conspirators' involvement as you were immersed in drug use and preoccupied with funding your own drug habit. You admitted that you had no thought of the consequences of your actions at the time and you verbalised the negative impact your behaviour has had and could have had on yourself and your family.

33. It was the opinion of the author of the Report that while you have expressed a desire to address your risk factors, being your lack of pro-social networks and your illicit substance abuse, your long-term commitment, motivation and engagement with appropriate services is yet to be tested. You were considered to be at medium risk of reoffending. You were also considered suitable for a medium level of intervention by ACT Corrective Services.

34. I also received a CADAS Report. You did not attend to assist with the preparation of that report. The service noted that they had attempted to contact you by mobile phone, however, that number was disconnected. Three letters were also sent to your father's address. Your counsel submitted that you did not receive those letters and did not appreciate the effect of the orders I made prior to the sentence hearing that you assist with the preparation of a CADAS Report.

35. I was provided with sentencing details with respect to others who were involved in these offences. The sentencing remarks in the matter of R v Rasic, one of your co-conspirators, was tendered at your sentence hearing. She pleaded guilty on 27 January 2016 and gave evidence that she was prepared to give evidence in the trial of her co-conspirators. I sentenced Ms Rasic to 25 months imprisonment which I fully suspended. I then imposed a Good Behaviour Order for that period of time. I reduced her sentence from one of three years and six months. This reflected a 40 per cent discount on sentence, comprising of a 15 per cent discount for her plea of guilty and a 25 per cent discount for her preparedness to give evidence against her co-conspirators.

36. I noted in Ms Rasic's sentencing remarks that she was in a relationship with Mr Kristiansen as at 25 November 2013 and they currently have two children together. I also noted that Mr Hagen was in a relationship with Ms Rasic's mother and she considered him to be her stepfather. I accepted that her motive for offending was not only money but her attachment to her co-conspirators, Mr Kristiansen and Mr Hagen. I accepted that she had made considerable efforts to rehabilitate herself, including obtaining employment and distancing herself from Mr Kristiansen. I also noted that she was caring for her children and a number of testimonials were put before me at her sentence speaking of her having matured significantly, particularly after having children.

37. A further matter to which I gave great significance was that Ms Rasic voluntarily removing herself from participation in the conspiracy before she became aware of the fact that police were aware of the conspiracy. I considered that Ms Rasic had good to excellent prospects for rehabilitation and I was satisfied that she had already taken very significant steps towards her own rehabilitation.

38. Certificates of conviction were also tendered in relation to Mr Tsang and Mr Hamdoun. As I noted in my sentencing remarks in R v Rasic, Mr Tsang was the supplier of the methylamphetamine to the conspirators and was arrested in New South Wales (NSW). He was charged with offences of supplying not less than the commercial quantity of methylamphetamine on 13 May 2014 and supplying methylamphetamine on 14 May 2014.

39. On 27 August 2015, Mr Tsang was sentenced in the NSW District Court to three years imprisonment with a non-parole period of two years. The sentence was not broken down between the two charges.

40. Mr Hamdoun was charged with supplying not less than the commercial quantity of methylamphetamine. On 17 July 2014, he was sentenced in the NSW District Court to 31 months imprisonment with a non-parole period of 18 months.

41. An Agreed Statement of Facts was also tendered with respect to the offences of Mr Hamdoun. He had travelled from the ACT to Sydney on 13 May 2014 in order to supply and receive methylamphetamine. He was under police surveillance at this time. It was observed that Mr Hamdoun and Tsun Hin 'Terry' Chan quickly exchanged bags. Mr Hamdoun then returned to his motor vehicle and drove to a service station. At this point police executed a stop and search and located that same bag observed from the exchange with Mr Chan. The bag contained five resealable bags and was analysed to contain a total of 221.5 grams of methylamphetamine. Police also found approximately $2,000.00 in cash.

42. I accept that your role in this conspiracy was less than that of Mr Kristiansen and Mr Hagen but you were nevertheless an integral part of the conspiracy. With your involvement the conspiracy could not have been anywhere near as effective as it was. This was a conspiracy to traffic in large quantities of methylamphetamine in the ACT, including within the AMC. It is a particularly aggravating circumstance of this offence that one of its objects was to traffic methylamphetamine within prison, undermining the prospects of rehabilitation of offenders within the prison. The abuse of illicit drugs, and particularly drugs like methylamphetamine, is the source of much individual misery and also of wider social evils.

43. You were, as accurately described by the Crown, a willing lieutenant in this ring of conspirators. I accept that you were a user of methylamphetamine but your role was considerably more than that of a subsistence or street-level dealer. You were trusted with large quantities of drugs and large amounts of money. The intercepted telephone conversations between yourself and Mr Kristiansen reveal that you were the subject of considerable trust by Mr Kristiansen in carrying out your tasks.

44. I accept that you have made genuine efforts to distance yourself from criminal peers and to cease the use of illicit drugs over the last 12 months. These efforts suggest that you have reasonable prospects for rehabilitation, particularly if you maintain your current commitment to dealing with drug addiction. I have already referred to the sentences imposed on Ms Rasic, Mr Tsang and Mr Hamdoun but they provide only limited guidance in sentencing you.

45. Both Mr Tsang and Mr Hamdoun were sentenced for specific offences that occurred in NSW and not with respect to the offence to which you have pleaded guilty. Ms Rasic's involvement in this conspiracy was substantial but she had compelling subjective circumstances, and more importantly, had attempted to leave the conspiracy of her own volition before it became apparent that police knew of her activities and those of her coconspirators.

46. I am satisfied that the only just and appropriate sentence for the present offence is a term of full-time imprisonment. The most significant consideration in sentencing for offences of this nature is general deterrence. Those who may be minded to participate in the large scale trafficking of drugs must realise that they stand at risk of serious punishment when they are caught. Individual deterrence is also a relevant consideration, even taking into account your recent efforts at rehabilitation. There is also a community expectation, reflected by the maximum penalty for this offence as determined by the legislature, that those who engage in significant drug trafficking offences should be subject to serious punishment.

47. I will regard the present offences within the mid-range of such offences, taking into account your level of involvement in the conspiracy. While your plea of guilty was not a plea at the earliest opportunity, the Crown accepted that the timing of your plea was influenced by the provision of particulars and evidence by the Office of the Director of Public Prosecutions. You are not, however, entitled to the full discount that a plea at the earliest opportunity may have warranted. I accept that your plea demonstrates a degree of remorse and also had significant utilitarian value. I will reduce the otherwise appropriate sentence by approximately 15 per cent to reflect your plea.

48. On 30 August 2016, I recorded a conviction and sentenced you to three years and four months imprisonment commencing on 30 August 2016 and expiring on 29 December 2019. I reduced this sentence from four years in order to reflect your plea of guilty. I set a non-parole period of two years commencing on 30 August 2016 and expiring on 29 August 2018.

49. It was on this date that your counsel requested this sentence be served by way of an Intensive Corrections Order. I must say having considered all of the material, despite the Intensive Correction Order Assessment Report finding you unsuitable for an Intensive Correction Order, I am going to make such an order. I accept that your compliance with community based orders in the past has been extremely poor, however, it appears to me that there is some prospect that at the present time you may be motivated to deal with those issues which have led you to offending in the past. It does not appear to me that you pose a significant risk to anybody if you are released into the community, particularly if you are subject to very stringent supervision and control such as one might anticipate under an Intensive Correction Order.

50. I will therefore order that the sentence which I imposed on 30 August 2016 is to be served by way of intensive correction in the community from today, 31 October 2016. Such an Order includes the core conditions which are set out in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).

51. The Intensive Corrections Order Assessment has not made any recommendation with respect to an additional condition that may be added to the Order under s 11(5) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes Sentencing Act) other than to say that you are unsuitable for a community service order.

52. An Intensive Correction Order made pursuant to s 11(6) of the Crimes Sentencing Act includes a curfew condition if the court is satisfied that each adult who is living at the curfew place consents to the curfew. What is suggested at the present time is not so much a curfew condition, as a condition that the offender is not to be present at his partner's address after 4.00 pm. That is a condition which falls under s 11(5)(e) of the Crimes Sentencing Act and it is a condition that I will make which may be reviewed on a bi monthly basis and can be altered by ACT Corrective Services upon review.

53. Mr Malec, with some reticence I have made an Intensive Corrections Order. Your performance with respect to community based orders in the past has been very poor but I am giving you an opportunity to demonstrate that you have really changed your attitude and that you really have a desire to rehabilitate yourself. Now, the fact is that you will be subject to very stringent supervision as part of this Order. If you return to using drugs or if you do not comply with the directions that are given to you by Corrective Services then it is inevitable that you will return to prison and you will ultimately end up serving the sentences which I have imposed. Really, the question of whether you go back to prison now and serve those sentences is very much in your own hands.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.