R v Rasic [2016] ACTSC 156

Magistrates Court Act 1930 (ACT) s 90B

SCC 56 of 2015; SCC 65 of 2015

1. Bianca Rasic, you have pleaded guilty to conspiring with Thor Kristiansen, Anthony Hagen, Ryan Malec, NL and Adley Tsang to trafficking methylamphetamine between 1 June 2013 and 14 May 2014. The Crown accepts that you participated in that conspiracy from January 2014 until 14 May 2014. You were part of an ongoing drug trafficking conspiracy within the Australian Capital Territory. The key organisers of the conspiracy were Thor Kristiansen and Anthony Hagen. Messrs Kristiansen and Hagen used mobile phones to arrange the purchase, packaging and delivery of methylamphetamine into the Alexander Maconochie Centre (AMC). They also used their mobile phones to organise and control the sale of drugs by associates on the outside of the AMC. At some time prior to 29 January 2014 and continuing through until around 14 May 2014, you performed a number of overt acts as part of your involvement in the conspiracy. At various times you:

(a) accepted delivery of methylamphetamine from Adley Tsang or an associate;

(b) stored methylamphetamine until it could be sold or introduced in to the AMC, or provided to a third party for the purpose of sale;

(c) were involved in preparing methylamphetamine for sale or distribution;

(d) were involved in selling methylamphetamine; and

(e) utilised bank accounts for payments relating to the sale of methylamphetamines and confirm receipt of payments to Mr Kristiansen.

2. Between 31 January 2014 and 26 March 2014, you also arranged for Louise Simpson, a friend of yours, to store $79,540.00 that had been derived from the sale of methylamphetamine. You participated in discussions with Mr Kristiansen about feedback from customers, including drug quality and prices, and debts owed by various customers. Around 28 February 2014, you provided Mr Kristiansen's phone number to NL to enable NL to participate in the conspiracy.

3. The maximum penalty for the offence of conspiring to traffic in methylamphetamine contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 48 of the Criminal Code is imprisonment for 10 years, a fine of $150,000, or both. You were first charged before the Magistrates Court on 4 December 2014 with a number of offences, including: conspiracy to traffic a controlled drug other than cannabis, namely methamphetamine; trafficking in a controlled drug other than cannabis, namely methamphetamine; money laundering; participating in a criminal group; and dealing with the proceeds of crime. You entered pleas of not guilty to each of those charges.

4. On 19 March last year, you were committed to this Court for trial on those charges except for the charge of dealing with the proceeds of crime. Pursuant to s 90B of the Magistrates Court Act 1930 (ACT), the charge of dealing with the proceeds of crime was transferred to this Court as a related offence. On 4 June 2015, an indictment was filed in this Court, alleging one count of conspiracy to trafficking a controlled drug other than cannabis, namely methamphetamine. The matter was listed for a joint trial with your co-conspirators to commence on 29 February 2016.

5. On 27 January 2016, you were arraigned and a plea of guilty was entered to the one count on the indictment. This plea was accepted by the Crown in full satisfaction of all matters. I note that the trial of your co-conspirators did not proceed on 29 February this year, and in fact it is listed to proceed on 14 June this year. I note that you have spent no time in custody in relation to this matter. A lengthy and detailed Statement of Facts was tendered at your sentence hearing. I do not propose to recite those facts now. I will however say something about the relationships between those who are involved in the conspiracy.

6. As at 25 November 2013, you were in a relationship with Mr Kristiansen and at that time he was incarcerated at the AMC. You spoke with Mr Kristiansen regularly during his incarceration, including via telephone. As at 25 November 2013, Mr Hagen was also incarcerated at the AMC. Mr Hagen was in a relationship with your mother at the time. Mr Kristiansen and Mr Hagen were friends. I note that subsequently Mr Hagen has died.

7. Ryan Malec was a friend of Mr Kristiansen; Mr Malec was not incarcerated at the AMC at any material time. NL was also a friend of yours, at that time NL's partner Aaron Campbell was also incarcerated at the AMC.

8. Mr Tsang came to Australia from Hong Kong. On 29 November 2013 he was arrested for attempting to import methylamphetamine in to the territory via toner cartridges. He was initially held in the AMC for a period of three weeks where he had contact with Mr Kristiansen and Mr Hagen. I will also mention Adnan Hamdoun who appears to have undertaken a role as a drug courier in May 2014 after, or around about the time that you voluntarily withdrew from the conspiracy.

9. It is important to determine your role in the conspiracy as compared to that of your co-conspirators. The Crown alleges that Mr Hamdoun played a relatively minor role in the conspiracy. He was arrested by New South Wales police in Sydney on 13 May 2014 while participating in a purchase of a large quantity of methylamphetamine from an associate of Mr Tsang. The transaction had been previously arranged between Mr Kristiansen and Mr Tsang. Mr Hamdoun was sentenced in the New South Wales District Court in November 2014 to 31 months imprisonment with a non-parole period of 18 months for an offence of supplying a prohibited drug.

10. The Crown submitted that the role of Mr Tsang in the conspiracy was more significant than your role. Mr Tsang was the supplier of the methylamphetamine to the conspirators. He was also arrested by New South Wales police and charged with offences of supplying not less than the commercial quantity of methamphetamine on 13 May 2014 and supplying methylamphetamine on 14 May 2014. It appears that the 13 May 2014 charge relates to the 479 grams of methylamphetamine supplied to Mr Hamdoun. The 14 May 2014 charge related to a separate amount of 53.3 grams of methylamphetamine, but I have no further details of that charge.

11. On 27 August 2015, Mr Tsang was sentenced in the New South Wales District Court to three years imprisonment for these offences with a non-parole period of two years. The sentence is not broken down between the two charges. The Crown submitted that your role in the conspiracy was less than that of Mr Kristiansen or Mr Tsang. It also accepted that the telephone intercept material showed that during the course of the conspiracy, you were trying to withdraw or lessen your participation. On 10 May 2014, a telephone conversation between you and Mr Kristiansen was recorded in which you told Mr Kristiansen that you no longer wanted to be part of his organisation as you were starting work on 12 May 2014.

12. The Crown accepted that your role was confined to doing Mr Kristiansen's bidding while he was in the AMC. You were at that time in a long-standing relationship with Mr Kristiansen, which went back to your respective childhoods. I am satisfied that your role in the conspiracy was significant but less than those of Mr Kristiansen and Mr Tsang and, of course, Mr Hagen. I also accept that you were part of the conspiracy for a relatively short period from January 2014 until about 10 May 2014. I place significant weight on the fact that you voluntarily withdrew from the conspiracy. You gave evidence at your sentence hearing in which you confirmed as accurate the contents of the Statement of Facts and undertook to give evidence at any trial of your co-conspirators. The Crown accepts that you are able to give important evidence at the trial of your co-conspirators. I accept that your offer of assistance is genuine and also timely.

13. I also take in to account your plea of guilty to this charge which came after negotiations with the Crown. Your counsel advised me, without objection from the Crown, that you had indicated your intention to plead guilty some time ago, indeed before the Crown's tendency application was heard in January this year. The Crown submitted that an aggregate discount of 40 per cent was appropriate to reflect your plea of guilty and your promised assistance to the authorities. I accept that submission. I would arrive at that figure by allowing 15 per cent for your plea of guilty and 25 per cent for your promised assistance. It is notorious that provision of assistance to the authorities increases the risk of assault or harassment of a prisoner whilst in custody. I take that in to account. Whilst you have a short criminal history, you have no history of similar offending. In my opinion the criminal history which you have is not of particular significance for sentencing purposes in these proceedings.

14. I take into account the contents of the Pre-Sentence Report. I note that you are now 25 years old, although you were 23 at the time of your involvement in this offence. You have a history of compliance with community based orders relating to those relatively few matters which are found on your criminal history. You had a difficult childhood with your parents in regular contact with the criminal justice system. Indeed, you were brought up in an environment in which involvement in crime was commonplace. Your mother began a relationship with Mr Hagen, one of your co-conspirators, when you were two years of age. You considered him to be your stepfather.

15. You left home at the age of 12 to reside with another of your co-conspirators, Mr Kristiansen. You separated from him when you were 16 but you resumed this relationship in or around 2012. A child was born of that relationship in August 2013. You ceased that relationship in September 2015, but you subsequently had another child from that relationship and you continued to have contact with Mr Kristiansen in relation to parenting issues.

16. The Report notes that you have a history of stable employment between 2008 and 2013. You are currently on maternity leave from a position that you have held for more than 12 months. Your employer is willing to continue employing you after you conclude your maternity leave. You expressed remorse to the author of the Pre-Sentence Report and acknowledged your responsibility for your actions. The author of the Pre-Sentence Report assessed you as at low risk of reoffending.

17. I also take into account the content of a number of testimonials that have been put before me. They speak of you having matured significantly in recent times, particularly after having had your children. They speak of your commitment to your children and your desire to provide for them as a mother. I take into account the fact that you are relatively young. I am satisfied on the material, that you have good to excellent prospects for rehabilitation. Indeed, I am satisfied that you have already taken very significant steps towards your own rehabilitation.

18. Offences of this nature call for sentences which reflect a need for general deterrence. That is, a sentence which is designed to deter others from committing this type of offending. In the present circumstances, I see no significant need for any element of personal deterrence in sentencing you. You were involved in a significant conspiracy whose object was to source and sell large quantities of methylamphetamine. I accept that money was a motive for your offending but so was your attachment to your co-conspirators Mr Kristiansen and Mr Hagen. I accept that both of those people were emotionally important to you at the time and it made it very difficult for you to refuse them. I accept that you have made considerable efforts to rehabilitate yourself, you obtained employment, you have distanced yourself from Mr Kristiansen and you are currently caring for your children.

19. In my opinion, a sentence of imprisonment is appropriate with respect to this matter, although I am prepared to allow you to serve that sentence ultimately by way of a suspended sentence. The starting point in my opinion would be a sentence of three years and six months imprisonment. I will reduce that to three years to reflect your plea of guilty. I will further reduce that to 25 months in order to reflect your offer of assistance to the authorities.

20. I record a conviction and sentence you to 25 months imprisonment commencing today. That sentence will be fully suspended. There will be a Good Behaviour Order for a period of 25 months with a condition that you are to accept the supervision of ACT Corrective Services for that period of 25 months, or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of ACT Corrective Services or its delegates.

21. I have reduced the sentence to one of 25 months imprisonment from three years because of the offer of assistance that you have made to the prosecution, and in particular your offer to give evidence at the trial of any co-conspirators should you be called upon to do so.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.