Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 29, 33, 35, 78

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Drugs of Dependence Act 1989 (ACT) ss 164, 169

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 20, 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 EL [2016] ACTSC 241

R v Gunner [2018] ACTSC 372

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

R v Malec [2016] ACTSC 329

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

R v Mazaydeh [2018] ACTSC 308

R v Meyboom [2012] ACTCA 48

R v Ngerengere (No 3) [2016] ACTSC 299

R v Pantsis [1998] VSCA 134

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

R v Srna [2018] ACTSC 337

R v Tait (1979) 24 ALR 473

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

Zdravkovic v The Queen [2016] ACTCA 53

SCC 159 of 2018; SCC 160 of 2018; SCC 133 of 2019

1. On 7 June 2019, Joshua Mathews (the offender) pleaded guilty to the following offences:

(a) possession of a prohibited substance for the purposes of sale or supply (XO2019/31474), contrary to s 164(3)(c) of the Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act). The maximum penalty for that offence is 500 penalty units, imprisonment for 5 years, or both;

(b) two transferred offences of possession of a drug of dependence (CC2017/10371, CC2017/10372) contrary to s 169 of the Drugs of Dependence Act. The maximum penalty for that offence is 50 penalty units, imprisonment for 2 years, or both; and

(c) a transferred offence of driving a motor vehicle with prescribed drug in his blood (first offender) (CC2019/6431) contrary to s 20 Road Transport (Alcohol and Drugs) Act 1977 (ACT). The maximum penalty for that offence is 10 penalty units. The offence also carries an automatic disqualification period of 3 years with a minimum of 6 months.

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

3. On 18 April 2017, the offender was driving his vehicle in the carpark of the Jamison Shops, Macquarie when he was stopped by police. Upon speaking with the offender, police formed the view that he was driving with a prescribed drug in his blood and that there were illicit substances within his vehicle. Police seized the offender's vehicle and conveyed him to the Canberra Hospital for a blood sample to be taken. Analysis of the sample taken confirmed the presence of methylamphetamine.

4. On 3 May 2017, police executed a search warrant on the offender's vehicle during which a number substances were located, including:

(a) one large clip-seal bag containing 78 MDA tablets (21.691g);

(b) three clip-seal bags containing 1.310g of cocaine; and

(c) one clip-seal bag containing 3.278g of methylamphetamine.

5. The prosecution submitted that the relevant considerations in assessing objective seriousness are those outlined in Bui v The Queen [2015] ACTCA 5 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.

6. In relation to the sale or supply charge, the prosecution characterised the quantity of MDA as "significant", being 78 doses and totalling 21.691g. It was submitted that it must be inferred that the offender was aware of the quantity and nature of the drug, given the location where it was found and presence of the offender's DNA in the relevant locations. It was further submitted that the inference could be drawn that the offender was operating "at the street level" given the quantity of MDA.

7. In respect of motivation, it was submitted by the prosecution that this was difficult to determine given the offender denied the offence in the Intensive Corrections Order Assessment Report (ICOAR) and claimed the MDA tablets were for personal use only (Written Submissions, [13]).

8. In respect of the three transfer charges, the prosecution submitted they are "each unremarkable examples of offending of that kind".

9. Counsel for the offender submitted that, in respect of the MDA, while it is "quite a large amount" it should not be viewed as "a significantly large amount for the purpose of sale and supply". It was further noted there was no information as to the purity of the tablets.

10. In respect of the cocaine and methylamphetamine charges, counsel for the offender submitted the amounts were "very insignificant" and would be typical amounts that a "user might carry".

11. In relation to the possession for sale or supply offence, 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] (Toumo'ua)). The relevant matters include that the offender was operating at a street level and it was a significant amount of drugs, being 78 doses.

12. There is no pre-sentence report available with respect to these offences specifically. However, when this matter originally came before me for arraignment on 7 June 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.

13. The ICOAR dated 15 August 2019 details the relevant subjective circumstances of the offender. The offender is 27 years old and was born in Tamworth, NSW before relocating to Canberra when he was approximately 13 years old. The ICOAR notes that while the offender has previously been a "great support" within his family, the offender's behaviour has been of concern to the family. The report notes he maintains the support of some family members.

14. The offender has a 5 year old child from a previous relationship but the report notes that his contact with the child has been minimal since his arrest, although the offender's mother reported the prospect of future contact as a protective factor and an incentive to change his behaviour. In oral submissions, counsel for the offender noted the offender was pursuing formal avenues of access to the child prior to his arrest.

15. The offender reported leaving school without obtaining his Year 10 Certificate. The offender's mother reported to the author that the offender's attendance and participation was impacted by a diagnosis of Scheuermann's Disease and Chronic Fatigue Syndrome.

16. The offender was employed for a three year period until November 2017 as a disability support worker and administration assistant for his parents' business until he lost his Working With Vulnerable People (WWVP) card due to his criminal record. The offender's mother reported that the loss of the WWVP card had a negative effect on the offender who was previously a "gifted" disability support worker. He also worked at a supermarket, as a labourer and as a removalist prior to custody.

17. The offender acknowledged his acquaintances prior to entering the Alexander Maconochie Centre (AMC) in 2018 frequently used illicit substances and were "involved with the criminal justice system" and added he intended to cease contact with these individuals.

18. The offender reported commencing use of cannabis at the age of 12 for approximately a year. At age 18 he commenced daily use of the substance until the age of 24. The offender also reported using methamphetamine which escalated to a dependence and daily use in 2018. He also reported experimenting with other illicit substances. The offender was subject to a Drug Abuse Screening Tool which indicated his illicit substance use in the previous 12 months to be at a "severe level of risk". The ICOAR notes the offender has expressed desire to remain abstinent but has not engaged in any substantial interventions to address the substance use.

19. The offender was assessed to be of "medium-high" risk of general reoffending on the basis of unaddressed substance use, unemployment, criminal history, financial position and his attitude towards offending.

20. The offender has not been diagnosed with a mental illness although reported several suicide attempts, the first at age 12.

21. The ICOAR concludes with a recommendation that the offender has been assessed as not suitable for an ICO.

22. The report's author based this recommendation on the following conclusion:

[H]e has displayed non-compliance with previous community based [o]rders, resulting in this Service submitting Alleged Breach Reports with regards to previous Bail and Good Behaviour Orders. He is currently unemployed and is thousands of dollars in debt and limited pro-social friends and acquaintances in the community.

While [the offender] claims he has remained abstinent from illicit substances since September 2018, conversations with his mother cast some doubt over these claims. [The offender] was unable to articulate any employment prospects and his mother identified her belief that a lack of engagement in employment increases [the offender's] risk of lapsing back into illicit substance use. His lack of interest in attending drug and alcohol counselling/programs both in the AMC and community are of concern considering his substantial history of illicit substance dependence. He displayed anti-social attitudes towards Police and failed to demonstrate any significant insight into his own actions resulting in the offences before the Court.

23. In oral submissions, counsel for the offender submitted the offender is making enquiries as to possible study options in relation to future employment possibilities.

24. In the course of the sentencing hearing, the offender gave oral evidence on the issues raised by the ICOAR. The offender gave evidence that he accepted he has a drug issue and a need to address it (T 13.12-24). He further expressed a desire to attend a residential drug rehabilitation program upon release (T 14.23-28). He also gave evidence of attempts to enter into a rehabilitation and education programs whilst in custody, as well as being "bashed" whilst in the AMC (T 13.29-14.21).

25. The offender was cross-examined as to the extent of his honesty in relation to his drug use with the ICOAR author and also cross-examined in relation to his evidence that he had attempted to enter into a rehabilitation program whilst in custody (T 14.40-16.14). The offender was also questioned on his failure to comply with the conditions of his previous sentence, to which the offender accepted "I stuffed up...I got stuck in a cycle" (T 16.39). The offender denied the proposition he was not motivated to address his drug issues (T 16.45).

26. While the offender's prospects for rehabilitation remain guarded, he appeared sincere in his evidence before me that he was motivated to undertake drug rehabilitation. This is obviously something with which he will require intensive assistance.

27. The ICOAR indicates the offender disagreed with the majority of the police statement of facts and had initially pleaded not guilty as he believed the arresting officers had lied in their statements and had been engaged in misconduct towards him. The offender maintained to the ICOAR author that the substances discovered were for personal use and he had never been in the business of selling drugs. The ICOAR concludes that:

[The offender] failed to display any major insight into his own actions and appeared to focus his feelings that he had been mistreated by Police when discussing his offending behaviour.

28. Counsel for the offender submitted that the reference to the offender's view of police should not be taken as a lack of remorse for the offending, but rather should be viewed in the context of his historical interactions with the police, as detailed in the letter from the offender's mother.

29. The prosecution submitted that the plea of guilty should not be taken as a sign of remorse given the offender denies the offence. I accept that submission.

30. In evidence before me was a letter from the offender's mother dated 17 August 2019, which included the following:

The most important member of [the offender's] family is his son...who is 4 and a half. Upon his release on bail last year he got a job almost immediately as a removalist and tried to get access to his son. Unfortunately, at that time [his son's] mother was back together with her boyfriend and the father to her other children and would not allow [the offender] to either see or speak with his son. [The offender] then went through mediation and after waiting for months he finally got the certificate when he was rearrested. [His son's mother] in April had broken up with her boyfriend, was having problems herself and out of the blue started to talk to [the offender] and had arranged for [his son] to visit us in our home. That day, I believe it was the 20th of April would have been the first time [the offender] was going to see his son in over a year. The police [were] from what [his son's mother] stated hiding out the front, watch[ed] her take her children out of the car, saw [his son] run into [the offender's] arms then made themselves known and arrested him in front of his son, dragging his arms behind his back forcing me to grab my grandson. [The offender] begged the police to just give him a minute to hold his son, but they would not allow it. [The offender's son] is still traumatised by the experience. I'm so thankful that my [other] son... was out at the time with a carer and didn't witness anything.

...

[The offender] never had a girlfriend until he was over 18, [his son's mother] being his second girlfriend when he was 20, they had a lot in common with having a disabled sibling and they did have a good relationship for a while. They had been going through a rough patch and broken up when she became pregnant with...our grandson. [The offender] was actually on a cruise working as a support worker when he was born, but he did keep in contact with [his son's mother] via phone through the labour. As soon as he was back from the cruise, he rushed to see the baby then told us.

...

During the years [the offender] continued to work his two jobs, bought himself a new car and was earning a very good income. Then he met a girl...and after this his siblings started noticing a change in him...I know that I don't know what very much of what [the offender] fully did from 2016, but I am aware he was threaten[ed] many times with violence, beaten up, overdose causing seizures and [supressed]. All of these things I discovered long after the advent.

...

In 2012 he witnessed his father['s] suicide attempt. His father has always suffered depression and it became very sever[e] that year. Our marriage was under a huge [strain] at the time as well. His father was hospitalised for over 6 months and again it was [the offender] who was my rock. At this time, we also had 3 other teenagers living with us, all had been runaways that we gave a home to, so they were not on the street. So, on top of running our business, caring for [the offender's brother] I had extra kids and it was [the offender] who helped me with everything during this time.

...

[The offender] I think had always tried helping me as well because of my medical conditions. I was diagnosed suffering chronic pain due to sever[e] nerve damage cause by sever[e] cervical spondylosis in my neck and spine and Fibromyalgia in 2000. I later developed Hemiplegic migraines, Vertigo, Hypertension, Epilepsy, TIAs, and in November 2017 had a[n] Acute Myocardial Infarction. While I was in hospital following my heart attack, it was [the offender] who visited me every day, it was [the offender] who cared for [his brother] at home and brought him to see me as [his brother] stresses a lot if I'm not with him. Currently in May I was diagnosed with 11 kidney stones, which requires me to see a specialist and have surgery. I haven't yet as yet followed through with this. I know the court will see that I have family living with me to help, but the truth is that [the offender's younger brother] clashes badly with [the offender's older brother who,] does not get along well with [the offender's sister in law], but [the offender's older brother] is very touchy with her and she is not always comfortable with this and [the offender's father] is either working or asleep.

...

[The offender] I believe will benefit from drug rehabilitation, something we had talked to him in the past about, but [the offender] always felt he didn't have a problem. He has shown that he can't do it by himself as he has fallen back into old habits before. The other thing that will keep [the offender] on a positive road is having court issued orders of visitation with his son which he could do if he is given another chance by the courts. If [his son] is in his life [the offender] will do the right thing as he doesn't want anything to hurt his son. [The offender] needs...to work and or study as [the offender] is always happiest when he is busy...we can have him assisting in our accounts department, plus we will assist in anyway possible to find him employment if required.

31. I take this reference into account on sentence.

32. The offender has a criminal history both in the ACT and NSW, including offences for possession of drugs, property offences and driving offences.

33. The prosecution submitted that while the offender's history raises doubts for prospects of rehabilitation, "it is noted he has no prior convictions for offences of sale or supply, or trafficking, and is entitled to a degree of leniency in sentencing for the present offences" (Written Submissions, [21]).

34. Counsel for the offender submitted that, at the time of the offending which is the subject of these proceedings, the offender's criminal history was limited. It was submitted that, by reference to the criminal history of the offender, "from 2016 is clearly...the time when drugs became part of his life" (T 19.16) and subsequent offending coincides with this issue.

35. I accept the submissions of both the prosecution and counsel for the offender in this regard.

36. The offender entered pleas of guilty for each of the offences on 7 June 2019. The pleas were entered in the Supreme Court following a criminal case conference. The trial for the matter was set to commence on 11 June 2019.

37. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (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].

38. 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].

39. The prosecution noted that the pleas were entered the week before the trial was to commence and submitted that although late they had some utilitarian benefit and the offender is entitled to a "small" discount for the plea.

40. Counsel for the offender placed the plea in the context of a pre-trial application by the offender as to the admissibility of certain evidence, the plea coming three days after the ruling that the evidence against the offender was admissible. However, the prosecution submitted that the pre-trial application came at a late stage after the key issues had already been identified for a significant period of time. Nevertheless, the prosecution did not cavil with discount between 10 to 15% (T 7.21). Counsel for the offender submitted 15% would be appropriate (T 6.46).

41. In respect of the transferred offence of driving a motor vehicle with prescribed drug in his blood, the parties agreed the offender was entitled to a discount of 25% (T 7.10-16).

42. I therefore allow a 25% discount for the plea of guilty to the transferred driving offence, and a discount of approximately 12% for the pleas of guilty to the remaining offences.

43. The offender has spent 11 days in custody from 30 August 2018 to 10 September 2018 solely referable to these offences. On 10 September 2018, the offender was released on bail.

44. The offender has pleaded not guilty in relation to other offending for which he was remanded on 20 April 2019 and as such, as at 20 September 2019, will have spent 165 days in custody which has not been taken into account in any sentence imposed on the offender.

45. 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.

46. I was referred to the following cases by the prosecution.

47. In R v Gunner [2018] ACTSC 372, the 33 year old offender pleaded guilty to one offence of possessing a prohibited substance for the purpose of sale or supply along with a number of transferred charges. The offender was found to have 8.25g of heroin, the sale of which intended to fund the personal use of the drug, but the offender was "slightly above a subsistence dealer" (at [18]). The offender had a criminal record and a history of breaching community based orders but presented as motivated for rehabilitation. With respect to the sale or supply offence, the offender received a total of 13 months' imprisonment, reduced by 2 months for the guilty plea and 2 months for pre-sentence custody, resulting in a sentence of 9 months. The total aggregate sentence of 17 months was served by way of an ICO.

48. In R v Mazaydeh [2018] ACTSC 308, the 21 year old offender pleaded guilty to a single charge of possession of a drug of dependence for the purpose of sale or supply. The offender was located by police with 11.692g of cocaine being held temporarily for supply to an unidentified person. The offending was found to be in the "low to mid range" (at [3]). The offender had a very limited criminal history and was considered to be of a low risk of reoffending. The offender received a fine of $2000 and a good behaviour order for a period of 2 years with a community service condition.

49. It was submitted by counsel for the offender that, despite the ICOAR conclusion of unsuitability, an ICO would nevertheless be appropriate for the offender. Counsel for the offender noted the author's conclusion was based on the offender's history of non-compliance with community corrections orders and unaddressed drug issues. Accordingly, it was submitted:

(a) the offender has a demonstrated period of compliance, with the offender having satisfactorily engaged with his bail conditions "until the end of 2018", but ceased in January 2019 whereupon "drugs have come back into his life" (T 9.10). During this period it was submitted the offender completed 50 of 75 community service hours;

(b) the offender has a demonstrated period of abstinence from illicit substances, as, following a positive result for testing for methamphetamine on 11 September 2018, he returned negative for illicit substances results in September, November and December of 2018. It was further submitted that test conducted a week before the sentencing hearing on 20 August 2019 also returned a negative result (T 9.31). It was noted by counsel for the offender that in this period the offender had no assistance of any rehabilitation programs.

50. It was further submitted that the offender had attempted to engage in a rehabilitation program whilst in the AMC, but was told he was not able to do so. The offender confirmed this in his oral evidence (T 13.26-35).

51. Ultimately, it was submitted the offender would benefit from the support and "guardrails" provided by an ICO (T 8.33-43).

52. The offender gave sworn evidence in respect of these matters, which included the following exchanges (T 13.12-21):

COUNSEL: Do you recognise you have a drug issue?

OFFENDER: Yes

...

COUNSEL: What is your attitude to attending drug and alcohol counselling or programs if you're released into the community?

OFFENDER: I'm all for it. I think I need it...I want to do it.

53. The prosecution accepted that while the offender's substances issues go "directly" to his offending, the offender was not a suitable candidate for an ICO. It was submitted that substance issues can be addressed whilst in custody and that, apart from a brief period of abstinence, the offender is not committed or capable of abstaining from drugs or offending.

54. In addition, the prosecution submitted that the offender's responses in the course of cross-examination demonstrated that he had lied to the ICOAR author regarding the length his period of abstinence, which it was submitted would not instil confidence that the offender is committed to rehabilitation. Ultimately, it was submitted by the prosecution that the offender should not be sentenced to an ICO.

55. The relevant provisions on the suitability of an ICO are at s 78(5) and (6) of the Sentencing Act:

(5) The court may make, or decline to make, an intensive correction order for the offender despite -

(a) any recommendation in the intensive correction assessment; or

(b) any evidence given by the person who prepared the intensive correction assessment or a corrections officer.

(6) The court must record reasons for its decision to make, or decline to make, an intensive correction order for the offender if the intensive correction assessment recommends that the offender -

(a) is suitable but the court decides not to make an intensive correction order for the offender; or

(b) is not suitable but the court decides to make an intensive correction order for the offender.

56. I note the following from the Explanatory Statement of the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) which introduced the ICO sentencing option:

The intensive correction order is designed to be punitive while still allowing the courts to incorporate elements of rehabilitation. It will allow offenders to remain in employment and maintain their community ties which are important to reduce the risk of future offending. It is flexible enough to allow the courts to tailer the order to suit the circumstances of the offence and the offender but still sufficiently structure to ensure every order places appropriate demands on an offender.

57. The following are cases where an ICO was ordered contrary to the recommendation of unsuitability of the ICOAR author.

58. In R v Srna [2018] ACTSC 337, the offender was recommended as unsuitable for an ICO based upon information received from police regarding "numerous uncorroborated/unconfirmed reports of drug activity, stolen property and potential access to firearms/weapons in relation to Mr Srna and his address" at [14]. Burns J ultimately ordered an ICO and gave the following reasons: his Honour could not give significant weight to unconfirmed reports by anonymous persons on what they considered suspicious activity at the offender's premises (at [15]), and the evidence did not establish unsuitability, "at least not to the extent" that his Honour "should not consider the making of such an order (at [16]).

59. In R v Malec [2016] ACTSC 329, the offender was recommended as unsuitable for an ICO and his compliance with community based orders had been "extremely poor". Burns J ordered an ICO and gave the following reasons: there was "some prospect" that Mr Malec was motivated to deal with the issues that lead to his past offending, and that he did not appear to pose a significant risk to anybody if released into the community, especially under "very stringent supervision and control such as one might anticipate under an [ICO]" (at [49]).

60. R v EL [2016] ACTSC 241 (R v EL): the offender was recommended as unsuitable for an ICO as he continued abusing alcohol and displaying unacceptable alcohol-related behaviour. Penfold J imposed an ICO and gave the following reasons: the nature of the offence concerned (recklessly inflicting grievous bodily harm), a new protection order for the victim could be obtained if need emerges, the offender's claim he no longer associates with family members "with whom he is at odds", and his "culpability for the offence having regard to his mental health and, in particular, ... the impact of his PTSD symptoms" (at [43]).

It would be curious if intensive correction orders were only available to people who really did not need any help.

62. It must be stated there are understandable concerns on the part of the author of the ICOAR regarding previous non-compliance and the use of illegal substances. Nevertheless, one of the objectives of imposing an ICO is to assist in ensuring the offender has assistance in ceasing to use illegal substances and thereby improving himself and becoming a worthwhile member of the community. The need for correction is at the core of the intensive correction regime. In my view, an ICO is appropriate in this case. I take into account the following matters: the nature of the offences are drug related, the offender demonstrated insight into the need for drug rehabilitation in his evidence before me, the matters an ICO would target include alcohol and illicit substance use, unemployment, attitude and orientation and may include the participation in engagement with appropriate alcohol and drug treatment services, engagement with a job networking provider and referral to appropriate cognitive skills based intervention. In my view, the offender needs intensive assistance in the community.

63. I note the issues raised in the following passage by Refshauge ACJ in R v Ngerengere (No 3) [2016] ACTSC 299 at [59]- [62]:

59. One problem, however, is that under s 29(1)(b) of the Crimes (Sentencing) Act, an Intensive Correction Order cannot be made for a sentence that includes full-time custody. As Penfold J pointed out in R v Ingram [2016] ACTSC 199 at [13], that seems to include a sentence backdated to take account of pre-sentence custody.

60. That is immensely problematic and calls for some reform. It is quite likely that a person suitable for an Intensive Correction Order will have been refused bail and remanded in custody, given the fact that he or she would be likely to be sentenced not merely to imprisonment but a term of up to four years.

61. To exclude those persons from access to an Intensive Correction Order would reduce its reach to even fewer orders than the current number of Orders (especially compared to assessments) that have now been made. It would, of course, be unfair to ignore pre-sentence custody. To do so simply to be able to make an Intensive Correction Order does not seem justified when the order is a term of imprisonment and may well be served, such that the extra period of imprisonment for a proper sentence but without backdating would arguably be too long. See R v Elphick (No 2) [2015] ACTSC 23 at [86]- [90].

62. Of course, as I pointed out in Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210 at 224; [65], the Court could simply reduce the sentence by the period of pre-sentence custody, thus, as required, "taking it into account".

64. Adopting the approach outlined by Refshauge ACJ at [62], I will reduce the overall sentence of the offender by the period of pre-sentence custody outlined above.

65. 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.

66. 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 of punishment, general and specific deterrence, the protection of the community, accountability, and denunciation are important sentencing considerations.

67. The prosecution submitted that considerations of general deterrence and protection of the community are paramount in sentencing for the sale and supply of drugs (citing Zdravkovic v The Queen [2016] ACTCA 53 at [26] (Zdravkovic); R v Tait (1979) 24 ALR 473 at 485; R v Pantsis [1998] VSCA 134 at [12]).

68. Rehabilitation is also an important consideration having regard to the offender's youth.

69. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In addition to submissions regarding ICO suitability outlined above, the prosecution submitted a term of imprisonment is warranted in light of the objective seriousness of the offence and as matter of general deterrence to the wider community.

70. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO.

71. 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.

72. 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].

73. 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 at [64]. 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].

74. 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.

75. The appropriate sentence for the offence of possession of a prohibited substance for the purposes of sale or supply is 20 months reduced to 17 months and 12 days on account of the discount for the plea of guilty.

76. The appropriate sentence for the first offence of possession of a drug of dependence (CC2017/10371) is 2 months reduced to 7 weeks on account of the discount for the plea of guilty.

77. The appropriate sentence for the second offence of possession of a drug of dependence (CC2017/10372) is 2 months reduced to 7 weeks on account of the discount for the plea of guilty.

78. The appropriate sentence for the offence of driving a motor vehicle with a prescribed drug in his blood is a fine of $400 with 6 months to pay and a disqualification of the offender's licence for a period of 6 months.

79. As indicated at [64] above, I will reduce the overall period of imprisonment by 165 days to take into account the amount of time in custody the offender has served. The periods of imprisonment will be served concurrently.

80. Overall there will be a sentence of 12 months' imprisonment which is to be served by way of an intensive corrections order.

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

(b) In respect of the offence of possession of prohibited substance for the purposes of sale or supply (XO2019/31474), the offender is sentenced to a term of 12 months of imprisonment, commencing on 20 September 2019 and ending on 19 September 2020.

(c) In respect of the first offence of possession of a drug of dependence (CC2017/10371) the offender is sentenced to a term of 7 weeks of imprisonment, commencing on 20 September 2019 and ending on 9 November 2019.

(d) In respect of the second offence of possession of a drug of dependence (CC2017/10372) the offender is sentenced to a term of 7 weeks of imprisonment, commencing on 20 September 2019 and ending on 9 November 2019.

(e) In respect of the offence of driving a motor vehicle with a prescribed drug in his blood (CC2019/6431) the offender is fined $400 with 6 months to pay, and, pursuant to s 34(1)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), the offender's licence is disqualified for a period of 6 months.

(f) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment be served by way of an intensive corrections order with the core conditions and the following additional conditions:

• (i) That the offender undertake such programs or counselling as directed by the Director General to address alcohol and illicit substance use, unemployment and/or attitude and orientation; and
• (ii) The offender be subject to a curfew between the hours of 11pm and 6am every day at a residence directed by the Director General.

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson