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[2019] ACTSC 267
Supreme Court of the ACT
2019-09-27
Loukas-Karlsson J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trafficking in controlled drugs other than cannabis - unauthorised possession of ammunition - possession of a knife in a public place - unlawful possession of a firearm - possession of a prohibited weapon - dealing with proceeds of crime - where offender at a crossroads - where assessed as suitable for an intensive corrections order
Crimes Act 1900 (Crimes Act) ss 114C, 382
Firearms Act 1996 (ACT) ss 43, 249
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
Kelly v Ashby [2015] ACTSC 346; 73 MVR 360
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
Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168
R v Ang [2014] ACTCA 17
R v BG [2017] ACTSC 382
R v Brown [2019] ACTSC 59
R v Davidson [2018] ACTSC 227
R v Day (1998) 100 A Crim R 275
R v Di Bitonto [2016] ACTSC 280
R v Gotte [2018] ACTSC 219
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Hyde [2017] ACTSC 337
R v Johnson [2019] ACTSC 117
R v Johnston [2017] ACTSC 280
R v Le Pavoux [2017] ACTSC 330
R v Lou (No 2) [2017] ACTSC 266
R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44
R v Martin [2007] VSCA 291; 20 VR 14
R v Mathews [2019] ACTSC 262
R v Meyboom [2012] ACTCA 48
R v Mitchell [2016] ACTSC 85
R v Nchouki (No 2) [2017] ACTSC 387
R v Ngerengere (No 3) [2016] ACTSC 299
R v Osenkowski (1982) 30 SASR 212
R v Papadakis [2017] ACTSC 341
R v Peter [2019] ACTSC 22
R v Pham [2015] HCA 39; 256 CLR 550
R v Speechly [2002] NSWCCA 300; 133 A Crim R 26
R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103
R v Zhao [2017] ACTSC 385
Wong v The Queen [2001] HCA 64; 207 CLR 584
Zdravkovic v The Queen [2016] ACTCA 53
Zhao v The Queen [2018] ACTCA 38
SCC 12 of 2019; SCC 13 of 2019; SCC 119 of 2019; SCC 149 of 2019
1. Mr Daniel McConnell-Imbriotis (the offender) is before the Court on eight criminal charges.
2. On 13 May 2019, the offender indicated pleas of guilty to the following three criminal charges arising out of events on 12 October 2018:
(a) Count 1: trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (CC2018/12687). The maximum penalty for this offence is 1000 penalty units, imprisonment for 10 years, or both.
(b) Count 2: a transferred charge for the unauthorised possession of ammunition contrary to s 249(1) of the Firearms Act 1996 (ACT) (Firearms Act) (CC2018/12690). The maximum penalty for this offence is 10 penalty units.
(c) Count 3: a transferred charge for the possession of a knife in a public place contrary to s 382(1) of the Crimes Act 1900 (Crimes Act) (CC2018/12691). The maximum penalty for this offence is 10 penalty units, imprisonment for 6 months, or both.
3. On 28 May 2019, the offender pleaded guilty to the following five criminal charges arising out of events on 11 April 2019:
(a) Count 4: trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code (CC2019/4308). The maximum penalty for this offence is 1000 penalty units, imprisonment for 10 years, or both
(b) Count 5: unauthorised possession of a firearm contrary to s 43(1)(a)(iii) of the Firearms Act (CC2019/4307). The maximum penalty for this offence is imprisonment for 5 years.
(c) Count 6: possession of a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2019/5498). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.
(d) Count 7: a transferred charge of dealing with proceeds of crime contrary to s 114C of the Crimes Act (CC2019/4309). The maximum penalty for this offence is 200 penalty units, imprisonment for 2 years, or both.
(e) Count 8: a transferred charge of unauthorised possession of ammunition contrary to s 249(1) of the Firearms Act (CC2019/5497). The maximum penalty for this offence is 10 penalty units.
4. The agreed facts are set out in the Agreed Statement of Facts, which forms part of the prosecution's tender bundle. What follows is a summary.
5. On 12 October 2018, the offender was apprehended by police at approximately 10pm, after failing to stop his motorbike and refusing a roadside drug test. The police removed and searched a satchel bag the offender had across his body. The police located the following in the satchel bag: 48.517g of methylamphetamine, $1,678.60 in cash, two shotgun shells, one large 'ice' pipe, one spoon, an iPhone, one grey box-cutter, and one multi tool knife.
6. The offender denied that the bag belonged to him and denied knowing its contents. He was not authorised by license or permit under the Firearms Act to possess ammunition.
7. The agreed facts stipulate that the offender was acting as a courier to deliver methylamphetamine to another person in Canberra and was, while not knowing the precise contents of the bag, reckless to the fact that the bag contained drugs, having received it from a person who supplied drugs for the offender's personal use. This first series of offences constitute Counts 1 to 3.
8. On 11 April 2019, the offender was on bail in relation to the events of 12 October 2018. On that date, police executed search warrants on the offender's residence and his car.
9. Police located the following items in a backpack at the offender's feet in the car: 13.169g of methylamphetamine, three vials containing 18.667g of methylamphetamine, digital scales, empty vials and clip seal bags, and $870 in cash.
10. Police searched the offender's residence and located the following items: $3,500 cash in an envelope, one syringe containing red liquid, a Winchester .22 caliber Magnum firearm, 49 ammunition units corresponding to that firearm, a cut-off rifle barrel and other firearm pieces, an extendable baton, four cannabis plants, a bag of cannabis seeds, five opioid tabs, a wooden stock for a firearm and a bag of cannabis.
11. The offender was in possession of total 31.836g of methylamphetamine on this date. He was not authorised by license or permit under the Firearms Act to possess ammunition. These facts constitute Counts 4 to 8.
12. In relation to the trafficking offences, the prosecution referred to three "guiding principles" for assessing seriousness from Bui v R [2015] ACTCA 5: the role of the accused in the operation (citing R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44), the weight of the drug (though it is not of chief importance, a relevant factor) (citing Wong v The Queen [2001] HCA 64; 207 CLR 584), and the motivation for the offence, with "the purpose of profit being a more serious matter" (citing R v Speechly [2002] NSWCCA 300; 133 A Crim R 26 at [30]; R v Day (1998) 100 A Crim R 275 at [277]).
13. The amounts of methylamphetamine for Counts 1 and 4 were 48.517g and 31.836g respectively. The prosecution submitted these quantities are approximately eight times and five times the trafficable quantity respectively, neither of which was "insignificant" (T 22.12). It should also be noted each is less than 1% of the commercial quantity for the substance (Criminal Code Regulation 2005 (ACT), Schedule 1). The offender's motivation was financial and he was low in the organisation's hierarchy.
14. In relation to the unauthorised firearm offence, Count 5, the prosecution submitted that the rifle had been shortened, making it easier to conceal and that this increased the objective seriousness. It was further submitted that this offence falls below the mid-range of objective seriousness.
15. In relation to the offence of possessing a prohibited weapon, namely an extendable baton (Count 6), the prosecution referred to the following passage from R v Papadakis [2017] ACTSC 341 at [37] (Papadakis)), in that the Court could have "regard to the range of prohibited weapons that exist under the Act, which include a bomb, grenade, flamethrowers and crossbows...". It was submitted that this offence was at the lower end of objective seriousness.
16. In relation to the transfer charges, Counts 2, 3 and 8, the prosecution submitted that the offences fall to the lower end of objective seriousness. The prosecution further submitted that Count 7 falls below the mid-range of objective seriousness and that $4,370, though "not insignificant", is "not a substantial amount" (T 23.9).
17. In relation to the first series of offences (Counts 1 to 3), counsel for the offender submitted that the offender was reckless to the contents of the bag he was transporting. The offender instructed that he transported the drugs for a dealer with whom he had a debt. Counsel for the offender submitted that the trafficking in 2018 was not for "direct financial benefit" but that "remaining in the good graces of his drug dealer was of benefit to him at that time".
18. In relation to the trafficking in 2019, counsel for the offender submitted that the trafficking was motivated by financial gain, relating to the offender's significant personal debt, his own drug use, and the loss of the drugs transported and seized in the 2018 offences.
19. It must be stated that references to low-range, mid-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)).
20. In relation to the trafficking offences (Counts 1 and 4), I find the offences to be below mid-range, taking into account the identifying features adverted to by the prosecution in their submissions. Similarly, with respect to the firearm offence (Count 5) I find it to be below mid-range, consonant with the prosecution's submission. Consonant with the prosecution's submissions, I find Counts 2, 3, 6 and 8 to be of low objective seriousness. I find Count 7 to be below mid-range.
21. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender, which included the following background information.
22. The offender is 29 years old. He was raised in Armidale, NSW by both his parents and is one of three siblings born to that union. The offender was raised in a positive and supportive family environment. The family moved to the ACT when the offender was 15. The offender is the only family member that still resides in the ACT, but he reports that his parents remain in daily contact and are supportive of him.
23. The offender has been in a relationship with his partner for seven years. His relationship has been negatively affected by his offences, but his partner visits him weekly and remains supportive and the offender confirmed he planned to reside in the rental property shared with his partner upon release. In his evidence before me the offender noted that prior to the commission of the offences the couple were saving for a house deposit and planning to start a family (T 12.30).
24. The offender advised that he ceased formal education after year 10, and undertook an apprenticeship as a chef. He has worked at cafes and restaurants in Canberra, Sydney and overseas. He was a part-owner of a restaurant in Canberra from 2011 to 2017, however, that business is no longer in operation. He is currently seeking compensation in relation to this business through the courts. The offender was recently working as a casual labourer, but intends to return to hospitality as a breakfast chef. The offender notes he has an outstanding debt in relation to an uninsured vehicle stolen in 2017 as part of an armed robbery where he was the victim.
25. The offender acknowledged to the PSR author that he has friends that are involved in criminal activity. He also has other friends that are pro-social and a positive influence on him. The offender reported first trying alcohol at 15 years old, and consuming it to intoxicating levels in his teens and early twenties. He reported that he reduced his consumption in 2012, and since then would usually consume one or two drinks on social occasions.
26. The offender reported he first tried methylamphetamine at 21 years old, and used it rarely until he ceased work at his restaurant in 2017. He had gradually become a regular user, and used daily in 2018. He claimed no further use of illicit substances while in custody. The offender reported that he was undergoing drug and alcohol counselling with his psychologist.
27. The offender reported he sought counselling at the end of 2018 to discuss his mental health and drug use. The offender reported a diagnosis of Post-Traumatic Stress Disorder (PTSD) related to the robbery referred to above at [24]. He reported he is currently medicated for depression and has had contact with health staff at the Alexander Maconochie Centre (AMC) regarding anxiety.
28. In relation to Count 1, the offender claimed to the PSR author that he was unaware of the contents of the bag. He stated he had acted recklessly in not asking what was in it. He stated he was motivated by financial gain to transport the bag for someone else.
29. In relation to the possession of ammunition, the offender advised he was not aware of what was in the bag. In relation to Count 3 (possessing a knife) the offender stated the knife was for a project he was working on and he had just purchased it.
30. Regarding the offences of April 2019 generally, the PSR author expressed the following:
[The offender] provided a narrative of how another bag came into his possession and he stated he had been motivated by financial gain. He stated he had acted on impulse, his actions were reckless, childish and not considerate of the law. He also admitted he was using illicit drugs frequently at the time of the offences. He agreed with the Statement of Facts in relation to the gun being in his possession, however, stated he had been researching ... how he could surrender the gun to the police during an amnesty period. The offender admitted he had purchased the baton after his car was stolen in 2017, stating he feared for his safety after that incident. He again claimed the illicit drugs were not his and stated he was transporting them for financial gain.
31. The PSR author stated that offender had a positive family and early career life. It appears the disagreements with business partners, financial loss from the restaurant venture, and violent car robbery affected the offender's confidence and mental health. During this period his drug use increased significantly, he was not working regularly, and he engaged in criminality.
32. The offender was assessed as a medium risk of reoffending. The author noted this risk may reduce if his drug use, finances, employment and attitude were addressed.
33. Generally, the author of the PSR found the offender's attitude towards accepting responsibility for the offences lacking. Particularly, while he acknowledged that the offences occurred, he continued to deny knowledge of what he was transporting.
34. Counsel for the offender submitted that it was a "misapprehension" by the author to deduce that the offender did not take responsibility for the offences because of the statements as to him not knowing what was in the bag.
35. In evidence before me was a psychological assessment prepared for the offender by Dr Cristian Torres dated 5 November 2018.
36. The report covers in detail many of the subjective matters referred to in the PSR, including his mental health history and substance abuse history. In particular, the report notes the impact of the armed robbery that was committed against the offender. The report noted that the offender met the diagnostic criteria for PTSD, Major Depressive Disorder and Stimulant Use Disorder. It was suggested by Dr Torres that the offender's "mental health needs would be better met in a non-custodial setting". Dr Torres notes the offender regrets his behaviour and hopes to amend his behaviour.
37. Dr Torres considered the risk of violent reoffending was low but that this was provided his mental health and drug issues were addressed.
38. Counsel for the prosecution submitted that breach of conditional liberty was a serious aggravating factor but that care is required by the Court to avoid double punishment (Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61]).
39. I take the fact that the offender was on conditional liberty into account as an aggravating factor on sentence, while also taking into account the need to avoid double punishment.
41. First, a letter from the offender's parents dated 19 June 2019, which includes the following:
He has had excellent judgment, timing and ability to reflect on his own performance. For example when he first became an apprentice chef he showed us a photo of Quay restaurant and said he would like to work there. We suggested he apply and he said "Not yet. I am not ready yet."
Later when he did feel ready he went to Quay to do work experience. Peter Gilmore, the owner of this restaurant which is consistently listed as one of Australia's best restaurants, was so impressed that he offered [the offender] a job on the spot. [The offender] later found out that over 14 apprentices had been short listed from hundreds for that position. [The offender] was the youngest apprentice taken on. Chefs from all over the world apply to work there. It was there that he learned the necessity of looking after his health in order to work long hours. It was a kitchen that frowned on the use of any drugs or stimulants.
...
Since the assault in April 2017 we have [seen] a marked difference in his behaviour. For the first time ... in memory he had no next goal or driving passion. He was unable to focus on anything that related at all to the trauma of the loss of his investment in his business which he had consistently worked towards for 10 years. It was difficult to communicate with him. He seemed to have disassociated from consequence, from dreams.
...
We have seen him move from a state of shock to one in which he had acknowledged and worked on the changes he needs to make. He has been working on building a coffee van from the ground up, a slow laborious project so that he can start out again. He is also talking about working as a breakfast chef to help finance this. We have seen the glimmer of pride as he has started to achieve results, humble though they are, particularly in light of his exceptional background as a chef and business owner. However it is this combination of humility and the glimmer of his own hope for a new future that affirms for us that [the offender] is able to stay steady in his resolve to not re offend but we acknowledge that he continues to need help to turn things around.
We do believe that he is in need of family support and we are all willing to provide this for him, our much beloved son and brother. We also believe in his essential 'goodness' kindness and ability to rise above his behaviour of the past year and to once again find himself, recover his good judgement and return to the upstanding and good example that he has been for the majority of his life.
42. Second, an undated letter from the offender's partner which includes the following:
Leading up to [the offender's] arrest I witnessed various anti-social and unsavoury individuals walk into [his] life and repeatedly take advantage of his kind and trusting character. In spite of that, during our first visit together at AMC, [the offender] said words to me to the effect of 'I got myself into this mess, I've only got myself to blame'. He gave me the impression he felt genuine shame and remorse for his actions.
We've also discussed his options once he returns to the community. [The offender] has committed himself to returning to the workforce as a breakfast chef as soon as possible. The way he spoke about this I believe that this is [the offender's] genuine decision.
If afforded the opportunity I'm confident that he will apply himself as the focused, honest and conscientious person that we all know and love. I look forward to finally spending happier, healthier and safe times with [the offender] again.
43. Third, a letter from the offender's older brother dated 19 June 2019, which includes the following:
In conversation with [the offender] since he was charged, he has expressed his determination to ensure that he does not end up in a repeat of his current circumstances. He is actively trying to change his life circumstances for the better and to minimise the stressors and triggers that seem to precipitate drug use for him. His actions include the construction of a food/coffee van which would allow him to utilise his skills and passion to earn an income while avoiding the high pressure environment of a commercial kitchen. It also allows him to actively take responsibility for his own destiny and to build a healthier lifestyle. [The offender] has also spoke[n] passionately about the vegetable gardens that he has built and maintained which he uses as a source of fresh, healthy and cheap produce for his personal consumption. He has also spoken of how his gardens help him learn about sustainable food production which he would like to use in his professional life too.
[The offender] has also discussed with me the benefits of attending counselling with Dr Torres and the positive nature of acknowledging his poor mental health and actively engaging in the process of trying to improve his wellbeing.
44. Fourth, a letter from a family friend of the offender, and retired social worker known to the offender since birth, dated 14 June 2019, which includes the following:
[The offender's] successful life adjustment was suddenly disrupted by an event in April 2017 when he was terrorised by being held up at knifepoint, robbed of his leased car, and subjected to threats of death to him and his girlfriend. This was, I believe, an extremely traumatic event for [the offender]; it has had long lasting consequences for his mental health and since it occurred, his mother has communicated to me her increasing concerns for his emotional and general wellbeing. Indeed, one may see it as having set in train the unhealthy coping responses to anxiety, and other behaviours, which have led to the charges against him.
45. Fifth, a letter from the offender's partner's mother dated 13 June 2019, which includes the following:
My previous character reference for [the offender] set out to assure you of my strong belief that [he] would learn his lesson, believing his experiences within the justice system to be a strong deterrent, preventing him from committing further offence.
I still feel that [the offender], with help, can return to the fine man we have known.
...
I believe [the offender] to be a fine fellow who understands the seriousness of his situation and that he is truly remorseful.
46. Sixth, a letter from a previous employer, colleague and business partner dated 14 June 2019, which includes the following:
While working for us [the offender] was awarded as Apprentice of the Year and received some notoriety as a chef. He was always able to deal responsibly and appropriately in all situations.
[The offender] has sent through a message to me letting me know of how much he regrets his actions of this past year.
I am sad to hear of the difficulties he has faced in the past year. It hurts me to [know] that he is a little lost. I consider him to be a good man and hope to be able to help him find his way again.
47. Seventh, a letter from the offender's younger brother dated 18 June 2019, which includes the following:
This is highly aberrant behaviour for [the offender]. [He] has historically been sensible and grounded, as well as career-orientated. He worked long hours for many years to advance his career as a chef, testament to the fact that he is normally a responsible person who makes decisions on a rational basis. This has been the case since the beginning of [the offender's] third decade of life. [The offender] was, in fact, frequently a calming influence within our family unit; he would calmly and sensibly approach problems or arguments that arose in a way that deeply, and positively, influenced how I interact with others today.
48. Eighth, a Victim Impact Statement by the offender dated 4 October 2018 relating to the 2017 offence against him referred to at [24] above, which includes the following:
The threats made by the defendant had a real impact on me. Days and weeks following the incident, I was fearful of being in my own home, and that he might return. Particularly, coming and going from the apartment was very uneasy. I would carry something to protect myself with and was always looking over my shoulder. ... My business partners became aware of the theft and assault and exploited my emotional and financial vulnerability. Eventually, we decided to move to a new house so that we could feel comfortable in our own home again. I continue to be vigilant, and have cameras installed. The car was the result of and represented 15 years of hard work and sacrifice and my hopes for the future.
...
I was employed as both a director and Executive Chef on a salary of $100,000 per annum. My business partners were unable to offer any flexibility or compassion for my situation and terminated my employment. It was later found at 'Fair Work' that this was an unfair dismissal. ... I have been unable to commit to full-time work since. My financial situation has changed drastically. I am no longer practicing and developing my skills in the industry, nor am I making any superannuation contributions. ... The crime also had a deep financial impact on myself, my partner and my parents. At the time, the vehicle's insurance had lapsed and was not covered for replacement.
...
The value of the vehicle was $78,885.00. I financed the car as a commercial loan. The contract total amount ... costs $120,058.82. I had paid off approximately $50,000 of the loan. ... My equity in the car also provided a form of informal security for part of a loan from my parents who had lent me a large portion of their superannuation as an investment in the restaurant in which I worked. ... The loss of my job and asset has rendered me bankrupt. Despite all the hard work I had put into getting to that point in my life, any chance I had of owning my home, or even having financial security have been thwarted.
The crime has caused high level o[f] stress on my life and as a result I suffer from depression and anxiety. Nine months after the incident, my life was consumed with trying to recover the car. ... My coping mechanism has been to go into repression, disconnected from the will to plan or dream, and avoidance. This has caused a lot of frustration for my family and loved ones, as they have seen me struggle to properly manage and copy which what has occurred.
49. I take these references and the Victim Impact Statement into account on sentence.
Intensive Corrections Order Assessment Report (ICOAR)
50. On 9 August 2019, I heard the parties in relation to the prospect of the sentence being served by way of an Intensive Corrections Order (ICO) and determined I should give serious consideration to this possibility. To that end, I referred the offender for an assessment.
51. The ICOAR dated 23 September 2019, confirms much of the information in the PSR, and notes further that: that the offender was a willing and open participant in the assessment process, that he returned three negative urinalysis tests during the process, that he has requested to participate in the ADAPT program, that he has been referred to the ACT Health Alcohol and Drug Service and is currently on a waiting list and that he accepted responsibility for his actions and did not minimise his actions.
52. The report concludes with a recommendation that the offender has been assessed as suitable for an ICO. In particular the report notes:
[The offender] appears to have the support of his family and partner. He has protective factors in skilled employment prospects. [The offender] identified some financial stressors in the community and unresolved business matters. He stated he was willing to engage with a financial counsellor in an effort to address his outstanding debts.
[The offender] has identified previous associates as a risk factor and trigger for possible drug use. He was able to articulate a risk prevention strategy plan. [The offender] identified a significant history of alcohol and illicit substance use. He reported he had engaged with treatment through a private psychologist to address these issues prior to entering custody and has made efforts to organise future counselling to further address his substance use and also mental health.
He did not dispute the statement of fact[s] and stated he is willing to accept responsibility for his actions. [The offender] displayed clear insight into his offending behaviour and the steps required to address his criminogenic risks.
53. The offender wrote a letter to the Court dated 10 June 2019, which includes the following:
I ... am writing this letter to express remorse for my actions in the few months leading up to my arrest [in]... April 2019, to convey my deepest apologies, to your honour, my family, my partner and her family, my peers and the wider community, not in any way to try and excuse my behaviour but to try and offer some explanation as to my reckless thinking and recent diversion off the path of a well regarded, high functioning and law abiding member of the community.
...
For lack of any excuse, might I offer some explanation for my fall down a slippery slope, which ensued my reckless state of mind and my unacceptable behaviour. In April 2017, I was the victim of a violent, aggravated robbery, during which my car was stolen at knife point, and to this day has never been recovered. The vehicle had cost of $100 000 and at the time was uninsured due to a business refurbishment, which resulted in s[h]ort term cash flow issues. At the time I was one of the owners and the executive chef of a popular Kingston eatery. Whilst on personal leave for what would later be diagnosed as PTSD a week after the car jacking I was unlawfully dismissed from my position as executive chef and ousted from the business, never being paid out my investment of over $300 000 for my equity and having to prepare for legal proceedings against the other owners for oppressive conduct. As my life's savings and ten years of hard work were invested in the business I became more and more depressed, I was restricted to casual work due to my PTSD symptoms, and most of the money I earned went towards legal fees for the commercial proceedings, eventually giving in to substance abuse late 2018. As I began to use more and more I found myself sharing unsavoury company and in doing so putting myself in a situation that resulted in the unplanned procurement of a firearm, for which I was waiting for an amnesty to hand in. As for the extendible baton seized by the AFP, this was poor judgment on my behalf and I had assumed that as it was readily available on a popular online shopping app, that it was no more illegal than a baseball bat I had kept beside my bed since the day of the car-jacking in 2017. I note that the contents of the backpack seized by AFP were unknown to me until minutes before I was apprehended by police, and that it was reckless of me to not ask questions as to why I was delivering this bag, hence I have plead guilty to the offence of trafficking in an illicit substance.
My incarceration has been extremely difficult, especially since being assaulted to severely that I was taken to Canberra hospital by way of ambulance with head trauma and facial fractures. However, I'm thankful that my time at AMC has helped me to break free from the grasp of substance abuse and to regain clarity in my way of thinking and my goals in life, a life of peace with friends and family and free of criminality.
I am deeply ashamed and extremely aware of the potential harm my actions could have caused to others. I am only too aware of the impact of my actions on my family and partner. I have gone against my own long held values. Since attending counselling I have been able to grapple more with the enormity of the effect of my actions and my negative self perception. I have applied myself to developing healthier strategies for dealing with trauma.
54. In relation to his trafficking offences the offender stated in oral evidence that (T 13.2):
"I've ... had a dramatic effect on other peoples' lives, the same way that drugs have had an effect on my life. In the same way that, yes, the people that made drugs available to me have helped my decline, and decline of my livelihood. ... I'm just as responsible for other people out in the community - by helping courier those packages, I've helped make drugs more readily available, and in turn helped to undo peoples' livelihoods in the community.
55. Counsel for the offender submitted that the offender demonstrates "insightful awareness" of the consequences of his actions, and genuine remorse in his letter to the Court. It was also submitted that while there is no victim of his offences, the offender acknowledges the seriousness of his actions and the potential harm they could have caused to members of the public generally.
56. Counsel for the offender submitted that "it appears [the offender] is at a crossroads in his life" (R v Osenkowski (1982) 30 SASR 212; R v Ang [2014] ACTCA 17). It was further submitted that it is thus appropriate in this case to show a degree of leniency upon sentence.
57. In the offender's oral evidence he stated that (T 13.18):
I want to get back ... to my career, and back to a normal working life. And back to my plans of buying a home and starting a family. ... It'd definitely be baby steps. So I'd start with probably a breakfast chef job, so working daytime, so I have the evenings free to spend with my partner. Keeping ... fit, partaking in exercise and a group sport. And yes, just living a normal life.
58. When examined about his intention to recover from drug use he stated (T 13.26):
COUNSEL: What about drugs?
OFFENDER: No. I want ... nothing to do with them when I get out.
COUNSEL: Okay. Now, you recognise that's not necessarily going to be easy?
OFFENDER: Yes, I do.
COUNSEL: And what are you going to do to try and ensure you don't relapse?
OFFENDER: I would say I'll continue on seeing Dr Torres in regular counselling sessions. And, yes, like I said, participate in a group sport, keep active, get gym membership, and just focus on work and keeping busy with work.
60. The offender has a limited criminal history which, prior to the events of 12 October 2018, consisted of six driving-related offences. These were two counts of driving while unlicensed, one of using an uninsured vehicle, one of using a unregistered or suspended vehicle, one of driving with a prescribed drug, and one of driving with his license suspended.
61. 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: Toumo'ua at [41]-[48].
62. The Court in 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].
63. The offender indicated pleas of guilty for the first series of charges on 13 May 2019 following being committed to the Supreme Court, and entered pleas of guilty for the second series of charges on 28 May 2019 at the third mention. The prosecution submitted that the prosecution case was strong. Counsel for the offender suggested a 15% discount in relation to the first series and a 25% discount in relation to the second series of offences for pleas of guilty. The prosecution did not cavil with these submissions (T 24.33).
64. In accordance with the submissions of both prosecution and defence submissions, I will therefore allow a 15% discount for the first series of offences and a discount of approximately 25% for the second series of offences for the pleas of guilty.
65. The offender has spent 218 days in custody solely referable to these offences.
66. 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]:
Considerations 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.
67. The prosecution referred to the following cases.
68. In R v Brown [2019] ACTSC 59, the 34 year old offender pleaded guilty to one offence of trafficking in methylamphetamine, and was sentenced to 17 months' imprisonment, and one offence of possessing MDA for sale and supply, and was sentenced for 52 days' imprisonment. The Court also took into account additional offences of possessing a prohibited weapon and the unlawful possession of stolen property. Substances weighing approximately 46g containing methylamphetamine were located at the offender's property. The offender was subject to bail at the time of offending, he was considered a user-dealer, but at a higher level, and the trafficking offence was considered to be below mid-range. The Court applied a 15% guilty plea discount. The aggregate sentence was 18 months' imprisonment.
69. In Zhao v The Queen [2018] ACTCA 38, the offender had pleaded guilty to three offences of trafficking methylamphetamine, and was sentenced to 2 years and 3 months' imprisonment, 3 years and 2 months' imprisonment, and 2 years and 6 months' imprisonment respectively. He also pleaded guilty to one offence of trafficking heroin and was sentenced to 16 months' imprisonment. The quantities of methylamphetamine were 358.9g, 665g, and 521.9g respectively. The sentencing judge considered the offender was a seller to other on-sellers, he was motivated by profit and he was an "above street level dealer" (at [10]). The offender was 40 years old, had no relevant criminal history (R v Zhao [2017] ACTSC 385 at [36]), and completed rehabilitation courses on remand. The sentencing judge applied a 10% discount. The Court of Appeal dismissed an appeal against the sentence.
70. In R v Davidson [2018] ACTSC 227, the offender pleaded guilty to one offence of receiving stolen property and was sentenced to 2 years and 6 months' imprisonment, one offence of trafficking methylamphetamine and was sentenced to 2 years and 11 months' imprisonment, one offence of trafficking MDMA and was sentenced to 2 years and 3 months' imprisonment, one offence of trafficking heroin and one offence of trafficking cocaine and was sentenced to a term of 1 year and 10 months' imprisonment for each. The offender was subject to two Intensive Corrective Orders for trafficking at the time of offending. He was found to be motivated by profit. The relevant quantities were 566g of methamphetamine, 371g of MDMA, 117g of heroin and 121g of cocaine. The offender was 34 years old, had a relevant criminal history, suffered "severe emotional neglect" (at [11]), in childhood including physical and emotional abuse, and had "reasonable prospects for rehabilitation" (at [31]). The Court applied a 15% guilty plea discount. The aggregate sentence was 6 years and 9 months' imprisonment, with a non-parole period of 3 years and 8 months.
71. In R v Nchouki (No 2) [2017] ACTSC 387, the offender was found guilty of one offence of trafficking in cocaine and sentenced to 2 years' imprisonment, one offence of trafficking in MDMA and sentenced to 6 months' imprisonment, one offence of trafficking in methylamphetamine and sentenced to 18 months' imprisonment, and two offences of possessing prohibited weapons (two tasers, and one knife respectively, the latter to which he pleaded guilty) and sentenced to 4 months' imprisonment for each. The offender was found to be motivated by profit, the quantity of methylamphetamine was 57.28g, and he was above a street level dealer. The offender was 37 years old and had a minimal criminal history. A sentence appeal was dismissed (Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168). The overall sentence was 3 years' imprisonment, with a non-parole period of 1 year and 8 months.
72. In R v BG [2017] ACTSC 382, the offender pleaded guilty to a number of offences including one offence of trafficking in methylamphetamine for which the offender was sentenced to 12 months' imprisonment. The Court noted the submission that the drug offences were considered as "being towards the lower end of the scale" (at [15]) but considered the trafficking offence to be more serious. The offender was 41 years old, had a minor criminal history, and was a drug user who had taken significant steps towards rehabilitation between offending and sentence. The Court applied a 25% discount. All imprisonment was fully suspended upon entering into a two year good behaviour order (GBO).
73. In R v Le Pavoux [2017] ACTSC 330, the offender pleaded guilty to a number of offences including one offence of trafficking in methylamphetamine and was sentenced to 1 year and 11 months' imprisonment to be suspended after 1 year. The quantity of methylamphetamine was 229.72g, and the conduct by the offender was characterised as transporting and selling drugs. The offender was 31 years old, used approximately 2g of methylamphetamine each week prior to offending, engaged in the Solaris therapeutic program, and had a significant criminal history. The Court applied a 20% guilty plea discount and a 5% discount under s 36 of the Sentencing Act. The balance of the sentence was suspended and a GBO imposed.
74. In R v Hyde [2017] ACTSC 337, the offender pleaded guilty to one offence of trafficking in methylamphetamine and was sentenced to 12 months' imprisonment, suspended after 6 months. The quantity of methylamphetamine was 20g, and the offender was found to be just above a "subsistence dealer/user". The offender was a drug user, completed educational programs in the AMC and applied for residential rehabilitation programs. The offender received a 20% discount as a result of the guilty plea.
75. In R v Lou (No 2) [2017] ACTSC 266, the offender pleaded guilty to a number of offences including two offences of trafficking in methylamphetamine and was sentenced to 6 months' and 3 years' imprisonment respectively. The quantities of methylamphetamine were 3.41g and 89.8g respectively and the offender was subject to a GBO at the time of offending. The offender was 34 years old and had longstanding substance abuse problems as well as mental health issues. The Court applied discount of approximately 35%. The overall sentence was 3 years and 6 months' imprisonment, with a 2-year non-parole period.
76. Counsel for the offender referred to the following cases for the firearm and weapon offences.
77. In R v Johnson [2019] ACTSC 117, the offender pleaded guilty to two offences of unauthorised possession of a prohibited firearm and was sentenced to two periods of 9 months' of imprisonment, one offence of trafficking a trafficable quantity of cannabis and was sentenced to 12 months' imprisonment, and two transfer charges of failing to comply with storage requirements and was sentenced to 3 months' concurrent imprisonment for each storage charge, and one of possession of ammunition and received a $75 fine for the possession charge. The offender had young exposure to alcohol abuse, issues with drug abuse and a criminal record with firearms and violence offences. The Court applied a discount of approximately 15%. The overall period of imprisonment is 18 months' imprisonment with a non-parole period of 10 months.
78. In R v Peter [2019] ACTSC 22 (Peter), the offender pleaded guilty to two offences of manufacturing firearms and was sentenced to a two-year GBO, two offences of possessing prohibited weapons and was sentenced to a two-year GBO (served concurrently), one offence of unauthorised possession of three or more prohibited firearms and was sentenced to 163 days imprisonment (already spent in custody); and one offence of unauthorised possession of a firearm, and was sentenced to a two-year GBO (served concurrently). The Court considered that generally the crimes were at the lower end of objective seriousness. It was noted that the offender had a successful career, had strong family support and was a medium-to-low risk of reoffending. The offender recognised his risk, expressed remorse and had a limited driving-related criminal history. The offender received a discount of 15%. The overall period of imprisonment is 163 days.
79. Counsel for the offender referred to the following cases for the trafficking offences.
80. In R v Di Bitonto [2016] ACTSC 280 the offender pleaded guilty to one offence of trafficking MDMA and was sentenced to 10 months' imprisonment (fully suspended, with a 12 month GBO with counselling). The offender was considered to be a low-level street dealer selling to fund a drug habit rather than for financial gain. It was noted the offender witnessed domestic violence as a child and was the victim of a number of abusive relationships, one of which left her close to death or permanent brain damage. The offender was diagnosed with borderline personality disorder and other health problems, and she had taken major steps towards rehabilitation. The received an approximate discount of 15%.
81. In Papadakis, the offender pleaded guilty to a number of offences including one offence of trafficking cocaine for which a sentence of 18 months' imprisonment was imposed, and one offence of possessing a prohibited weapon, for which a fine of $1000 and a GBO were imposed. The trafficking offence related to 152g of cocaine. The offender had no relevant criminal history, had completed university and was employed, sold cocaine to support his habits, and denied using drugs after arrest. The trafficking offence was reduced by approximately 15%. The total sentence was 20 months' imprisonment served by way of an Intensive Corrections Order.
82. 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. 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 purposes of punishment, general and specific deterrence, the protection of the community, accountability and denunciation are important sentencing considerations.
83. Rehabilitation is also an important consideration having regard to the offender's relative youth, remorse, and previous good character. The prosecution submitted the Court may have concerns about rehabilitation steps taken so far and submitted the offender was not proactive while in custody. The prosecution further submitted that the offender's plans for rehabilitation upon release are optimistic given his serious drug addiction, which should cause some concern.
84. Counsel for the offender submitted that accessing services in remand is more difficult than post-sentence and that the offender's solicitor had attempted to contact the offender's caseworker to no avail (T 28.40). It was further noted that the offender had taken steps towards accessing a drug rehabilitation facility, but that his weapon offences had "proven to be a barrier to being accepted".
85. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Counsel for the offender submitted that given the period of imprisonment already served and other mitigating factors, an immediate suspension of a remaining term of imprisonment be imposed and ultimately submitted an ICO was appropriate. The prosecution submitted only a full-time prison sentence would be appropriate, especially considering the need for specific deterrence. Both counsel for the prosecution and the offender agreed that the Sentencing Act s 10 threshold of imprisonment had been crossed.
86. In considering the applicability of an ICO, both parties referred to the applicable principles in R v Ngerengere (No 3) [2016] ACTSC 299 (Ngerengere). The prosecution observed in particular that, particularly considering each series of offences as a whole, personal and general deterrence are "leading considerations" and noted the breach of conditional liberty. Moreover, it was submitted by the prosecution that there was "minimal evidence before the Court to indicate that the offender has taken significant steps towards his own rehabilitation".
87. 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.
88. It is clear on the authorities that 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].
89. I outlined the principles of sentencing regarding firearms in Peter at [30], drawing on Refshauge J's findings in R v Mitchell [2016] ACTSC 85:
As a result of the Port Arthur Massacre in Tasmania, there was a national reform of gun laws in the Territory and the rest of Australia and his Honour in Mitchell set out underlying principles in relation to firearm possession, and stated at [2]:
It is clear that a most important consideration in the regulation of firearms is safety and their proper storage.
His Honour also emphasised at [3]:
While this context is important for an understanding of the offences created by the Act, and is relevant to sentencing, it is important to recognise that sentencing for offences, even under the Firearms Act, should be conducted with regard to standard sentencing principles.
91. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
92. The prosecution submitted that complete concurrency would not appropriately reflect the criminality involved in these offences, and that there should be significant accumulation between the series of offences according to the principles of totality. The prosecution submitted there is a greater need for specific deterrence because of the second series of offending. I accept this submission.
93. Counsel for the offender submitted that "these offences form part of a course of conduct arising out of the financial and emotional strain the offender has been subject to since the events of April 2017 and 2018." Counsel for the offender ultimately submitted that while imprisonment was appropriate an ICO would be suitable and that the offender would "benefit from having a support network in place to assist him in the path that he says he wants to go on" (T 4, 9.8.2019). I accept this submission. I have had regard to the factors set out in s 11(3) of the Sentencing Act. In my view, the offender is at a crossroads in his life and imprisonment to be served by way of an ICO is the appropriate course on sentence in his case, taking into account all of the factors referred to above.
94. 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 subjective matters.
95. In respect of the issues raised by s 29(1)(b) of the Sentencing Act, counsel for the offender referred to the possible 'work arounds' detailed by Penfold J in R v Johnston [2017] ACTSC 280 at [44]- [46] (Johnston).
96. I will attribute the entire amount of pre-sentence custody to the offence of unauthorised possession of a firearm (CC2019/4307) (Johnston at [45]; R v Gotte [2018] ACTSC 219). I also note the alternate option available (see Ngerengere at [62]; R v Mathews [2019] ACTSC 262).
97. The appropriate sentence for Count 1 (trafficking in a controlled drug other than cannabis) is 16 months reduced to 1 year, 1 month and 18 days on account of the discount for the plea of guilty.
98. The appropriate sentence for Count 2 (the unauthorised possession of ammunition) is a fine of $100 with 6 months to pay.
99. The appropriate sentence for Count 3 (possession of a knife in a public place) is 1 month reduced to 25 days on account of the discount for the plea of guilty.
100. The appropriate sentence for Count 4 (trafficking in a controlled drug other than cannabis) is 20 months reduced to 15 months on account of the discount for the plea of guilty.
101. The appropriate sentence for Count 5 (unauthorised possession of a firearm) is 10 months reduced to 7 months and 6 days on account of the discount for the plea of guilty.
102. The appropriate sentence for Count 6 (possession of a prohibited weapon) is 1 month reduced to 21 days on account of the discount for the plea of guilty
103. The appropriate sentence for Count 7 (dealing with proceeds of crime) is 6 months reduced to 4 months and 15 days on account of the discount for the plea of guilty.
104. The appropriate sentence for Count 8 (unauthorised possession of ammunition) is a fine of $300 with 6 months to pay
105. Overall there will be a sentence of 2 years,10 months and 6 days taking into account appropriate periods of concurrency and accumulation.
106. The remaining sentences of imprisonment commencing today, being a period of 27 months, will 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 trafficking in a controlled drug other than cannabis (CC2018/12687), the offender is sentenced to a term of 1 year, 1 month and 18 days of imprisonment, commencing on 27 September 2019 and ending on 13 November 2020.
(c) In respect of the offence of the unauthorised possession of ammunition (CC2018/12690), the offender is fined $100 with 6 months to pay.
(d) In respect of the offence of possession of a knife in a public place (CC2018/12691), the offender is sentenced to a term of 25 days of imprisonment, commencing on 27 September 2019 and ending on 21 October 2019.
(e) In respect of the offence of trafficking in a controlled drug other than cannabis (CC2019/4308), the offender is sentenced to a term of 15 months of imprisonment, commencing on 27 September 2020 and ending on 26 December 2021.
(f) In respect of the offence of unauthorised possession of a firearm (CC2019/4307), the offender is sentenced to a term of 7 months and 6 days of imprisonment, commencing on 21 February 2019 and ending on 26 September 2019.
(g) In respect of the offence of possession of a prohibited weapon (CC2019/5498), the offender is sentenced to a term of 21 days of imprisonment, commencing on 27 September 2020 and ending on 17 October 2020.
(h) In respect of the offence of dealing with proceeds of crime (CC2019/4309), the offender is sentenced to a term of 4 months and 15 days of imprisonment, commencing on 27 September 2020 and ending on 10 February 2021.
(i) In respect of the offence of unauthorised possession of ammunition (CC2019/5497), the offender is fined $300 with 6 months to pay.
(j) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the remaining sentences of imprisonment commencing today, being a period of 27 months, be served by way of an intensive corrections order with the core conditions and the following additional condition:
- (i) The offender undertake such programs or counselling as directed by the Director General to address: alcohol and drug intervention, mental health, financial counselling and cognitive self-change.
(k) Pursuant to s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), I take no action in respect of the good behaviour orders imposed with respect to the following offences: CC2018/12693, CC2018/12692, CC2018/12689, CC2018/12686, CC2018/12684.
I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson
R
McConnell-Imbriotis [2019] ACTSC 267
(1988) 166 CLR 59
(1982) 30 SASR 212