CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - possession of prohibited weapon - possession of a drug of dependence for the purpose of sale or supply - whether sentence should be served by intensive corrections order

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

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

Drugs of Dependence Act 1989 (ACT) s 164

Prohibited Weapons Act 1996 (ACT) s 5

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 Di Bitonto [2016] ACTSC 280

R v EL [2016] ACTSC 241

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 Meyboom [2012] ACTCA 48

R v Morales [2019] ACTSC 88

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

R v Srna [2018] ACTSC 337

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

Zdravkovic v The Queen [2016] ACTCA 53

Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)

SCC 230 of 2018; SCC 232 of 2018

1. On 28 November 2018, Nicholas Edward Whitelock (the offender) pleaded guilty to:

(a) an offence of the possession of a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2018/2619). The maximum penalty for this offence is 5 years imprisonment, 500 penalty units, or both; and

(b) an offence of possession of a drug of dependence for the purpose of sale or supply, contrary to s 164 of the Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act) (XO2018/31450). The maximum penalty for this offence is 5 years imprisonment, 500 penalty units, or both.

2. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. The relevant facts are summarised below.

3. On 11 February 2018, police attended a hotel in which the offender was staying, after being alerted by hotel staff to the presence of drug paraphernalia in the offender's room, and unauthorised visitors.

4. When the offender subsequently arrived at the hotel, he was approached and searched by police officers. He had the following in his pockets: a set of scales, three mobile phones and a flick blade. In his backpack he was found to have two glass pipes, 86 small plastic clip-seal bags and a handwritten note with the words "Joey borrowed $400 Tues 6/2/18".

5. Police then attended the offender's hotel room and located a number of deposits of a crystalline substance, acetone and gloves. The offender consented to having his rental car searched, in which was located a taser disguised as a torch, a bag containing white crystals and two pills.

6. An analysis of the seized substances was undertaken by the ACT Government Analytical Laboratory which detected several deposits of methylamphetamine among the substances. In total, 2.72g of methylamphetamine was seized.

7. Subsequent forensic analysis of the taser confirmed that it is an electrical discharge device designed to administer an electric shock on contact. The offender is not the holder of a prohibited weapons permit or authorised to possess a handheld or other electric device.

8. Counsel for the offender submitted that the offences were "clearly serious" but that this does fall to the "bottom range" or "low range" of objective seriousness. It was further submitted that this is not a case of an actual supply, and that the offender was "purifying drugs rather than cutting drugs" (T 7.7), that the amount does not cross the indictable range of a possession matter, and that the offender "had no intention to sell the drugs" (T 7.15). Counsel for the offender submitted that the weapon offence was also at the bottom of the range. The prosecution "did not disagree" with these submissions.

10. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.

11. The offender is a 34-year-old man who was raised as an only child in Sydney and later Eden in New South Wales. The offender relocated to Canberra at 13 and described his upbringing in positive terms to the PSR author. The offender maintains positive and supportive relationships with his family, although his father passed away when the offender was 28 years old, which the PSR describes as having a significant impact on the offender.

12. The offender completed Year 9 of high school and has been self-employed for over ten years, including reportedly as a part-owner of a family business whose profits are exclusively being used to fund the offender's legal expenses. The offender is also receiving Newstart benefits. The offender has been separated from his wife for approximately one year and has a shared custody arrangement for their two children.

13. The offender reported a history of drug use, commencing with cannabis use at age 11. At 15 he was using one gram of cannabis a day, which increased to three grams a day until he was 28. The offender ceased cannabis use following a prescription for Valium to treat mental health issues but the offender then began using methylamphetamine following the death of his father, initially once a month, then increasing to daily use for a period of two years. The offender acknowledged his use as problematic to the author of the PSR and reported participation in Narcotics Anonymous sessions.

14. The psychological report prepared for the offender (detailed further below) notes the offender reported using illicit substances to cope with particular stresses in his life, including: business difficulties, concerns over the mental and financial wellbeing of his mother and concerns over the mental wellbeing of his ex-wife (who is reportedly no longer in a position to care for their children). The offender is the primary caregiver to his two children.

Mr Whitelock is a 34 year old male assessed as a medium risk of general reoffending. His primary criminogenic risk factors appear to be his illicit substance use and mental health concerns. He maintains protective factors in stable accommodation and the pro-social support of his family.

Mr Whitelock would benefit from engagement with a drug and alcohol service to address his illicit substance use as well as encouragement through supervision to continue treatment of his mental health concerns by way of his prescribed medication. In addition to this, supervision would include supporting Mr Whitelock in enquiring about mental health counselling.

16. The PSR notes that the offender agreed with the Statement of Facts and accepted responsibility for the offences. However, he attempted to provide justification for his actions to the author of the PSR and denied owning the taser, although acknowledged the weapon was found in his vehicle and accepted responsibility for this.

17. The offender's counsel submitted the following (T 12.5):

[T]here is contrition and... insight in relation to the wrongfulness of conduct particularly in his discussions with his mother and... Dr Ogloff and insight into the difficulties that he faces...

18. I do not ascribe significant weight to the remorse or contrition expressed. There is nevertheless some insight and I take this into account.

19. In evidence before me was a clinical and forensic psychological assessment of the offender prepared by Professor James Ogloff.

20. The report notes that the offender did not report a history of mental illness although he has experienced depressive episodes in the last two years due to his living situation, for which he has been prescribed medication by his General Practitioner. The report confirms the offender's history of drug use and concludes there is a "very clear relationship between the substance misuse and offending".

[The offender] has a history of low mood and doubtless self-medicated with substances. In my opinion, [the offender] meets the criteria for a diagnosis of Substance Use Disorder to methylamphetamine (ice). He also meets the criteria for Acute Anxiety Disorder and Depressive episode. While his depressive episodes have been less severe over the past two years, his anxiety has likely increased. His mental state was confirmed both from interview and from psychological testing. He is under the care of a general practitioner.

The testing revealed that he is likely plagued by worry to the degree that his ability to concentrate and attend has been significantly compromised. The anxiety has now manifested in physical symptoms as noted with a recent visit to hospital. He bears a great burden of responsibility for his children, his ex-wife and his mother.

...

[The offender] has a limited criminal history and the assessment of risk for reoffending that I conducted suggested that his likelihood of reoffending falls in the low-medium range. I noted that data from NSW suggest 12%-15% of people with similar scores on the Level of Service/Risk, Needs, Responsibility measure have been found to reoffend and return to prison. Of note, more than 85% of people with similar scores do not reoffend.

22. In evidence before me were two references in support of the offender, including:

(a) A letter from the offender's mother (and employer) dated 20 May 2019, which includes the following:

Our decision to move to Eden did not turn out to be the ideal upbringing for our son that we had hoped. A small minority of the local children found Nicholas to be a prime target for bullying and ridicule...

It was during the later primary years that he was introduced to marijuana, which he apparently embraced to help him cope with day to day life in Eden.

...

In 2010, his son was born. Following the birth of his son, with an enormous amount of willpower, [the offender] managed to stop smoking both cigarettes and marijuana - of which his father and myself were exceptionally proud. ... Regrettably, [the offender's] father passed away on Boxing Day 2012.

In order to keep the business his father ran going, [the offender] gave up his floor sanding business to run The Wheelchair Factory for me.

... A large percentage of the clients are difficult to deal with due to either their disability or their age. [The offender] struggled with the day to day stress of dealing with these clients and as a result turned to the drugs that resulted in his presence before [the court].

...

Your honour, my son is a good man, a devoted father and a loving son. He may not always make the best decisions but I love him dearly and will do whatever is within my power to get him through this time and help him to overcome his drug addiction, which he is taking steps to address.

I know [the offender] is extremely concerned and upset about the current circumstances and understands their gravity. He recognises he has been a bad role model through his conduct and has commenced the process to become rehabilitated. He is currently undergoing treatment for depression.

(b) A letter from the offender's ex-wife dated 21 February 2019, which includes the following:

Following the unexpected and severe illness of my mother at the beginning of 2012 and the shocking death of [the offender's] father at the end of 2012, I began to be bullied in the workplace and developed Generalised Anxiety Disorder and eventually agoraphobia, resulting in my inability to help [the offender] process and deal with his own grief and mental health. This led to our separation at the beginning of 2018.

During the fifteen years I have known [the offender], he has always worked hard and has proven to be a wonderful, caring and protective father for our two children.

When I was first advised of the charges before the court, I was completely shocked as these charges suggest behaviour that is completely out of character for [the offender].

Following severe financial hardship, I am currently homeless, residing at the home of my parents, and our children are only able to stay with me for limited amounts of time. Due to this issue, our children are temporarily residing at the home of [the offender's] mother... This is putting a significant emotional strain on the children and myself.

23. I take these references into account on sentence.

24. The offender has a minor criminal history, comprised of non-conviction orders for driving related charges and one weapon charge in 2004.

25. The absence of a significant criminal history will be taken into account on sentencing.

26. The offender entered pleas of guilty prior to trial.

27. 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 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua) at [41]-[48].

28. 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].

29. Counsel for the offender submitted that a discount in the vicinity of 15-20% would be appropriate. The prosecution "did not disagree" with these submissions.

30. I therefore allow a discount of approximately 20% for the pleas of guilty.

31. The offender has spent no time in custody referable to these offences.

32. 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].

33. I was referred to the cases of R v Di Bitonto [2016] ACTSC 280 and R v Morales [2019] ACTSC 88 by the offender's counsel. While it was submitted each resulted in a suspended sentence, in the latter, an intensive corrections order (ICO) was ordered. Counsel for the offender noted that they were not directly comparable cases (T 5.19). These cases may be summarised as follows:

(a) R v Di Bitonto [2016] ACTSC 280: the 24-year-old offender pleaded guilty to trafficking a controlled drug and asked the court to take into account two additional charges of possessing a drug of dependence. The offender was diagnosed with borderline personality disorder and suffered ongoing domestic abuse, consumed MDMA and cocaine, and was considered a small-time user/dealer. The offender sold MDMA to fund cocaine consumption but had no proactive role in trafficking. The offender had no criminal history, ceased consumption of illicit drugs after arrest, attended counselling and had a low risk of general re-offending. After a discount of just over 15%, the offender was given a sentence of 10 months' imprisonment, suspended subject to a one-year good behaviour order, which included conditions of supervision by corrections, drug rehabilitation and counselling.

(b) R v Morales [2019] ACTSC 88: the 22-year-old offender pleaded guilty to attempted aggravated robbery, 2 counts of dishonestly riding in a motor vehicle without consent and possessing a prohibited weapon, relevantly a taser. The taser offence was considered "at the low end of the spectrum". The offender attempted to rob a taxi driver on two occasions. The offender had prospects of rehabilitation. For the weapon offence, the offender received a 25% discount, resulting in 1 month of imprisonment. Counsel for the offender referred to this case in relation to the taser charge.

Intensive Corrections Order Assessment Report (ICOAR)

34. When this matter came before me on 21 May 2019 I determined that I should give serious consideration to the sentence being served by way of ICO. To that end I referred the offender for assessment.

35. The ICOAR confirmed much of the information contained in the PSR but included the following additional matters.

36. The offender reported a long history of affiliation with various antisocial peer groups. He denied any current or historical alcohol related problems, although the ICOAR author noted his criminal history includes an alcohol-related charge in 2015.

37. Since February 2018 Child and Youth Protective Services (CYPS) have received three reports with concerns raised about the offender's mental health, drug use and abusive text messages between the offender and his ex-wife.

38. The offender advised his mental health had been generally good until the passing of his father in 2012, after which his mental health declined. Over the past two years, the offender has been diagnosed with dysthymic disorder (which is persistent depression), depression and anxiety, and continues to undergo treatment through prescribed medication.

39. Records indicate the offender was transported to the emergency department by ACT Police during April 2019 after he attempted suicide in the context of a situational crisis. He was discharged the next day, and declined further following up from ACT Health's Home Assessment Team. He has since denied any thoughts of self-harm of suicide.

40. The ICOAR author stated that the offender's compliance during the ICO Assessment period has been unsatisfactory. He attended six of ten of his scheduled appointments, and failed to supply the required samples for urinalysis testing. He declared ongoing illicit drug use and returned one oral fluid sample on 12 August 2019 with a positive result for methamphetamine and amphetamine.

41. The offender expressed concerns about his capacity to achieve and maintain abstinence should he be sentenced to an ICO. He stated he would prefer to address his drug use without the assistance of programs or counselling, and the ICOAR author was concerned that the offender has failed to commit to a viable plan to achieve and maintain abstinence.

42. The offender's children are currently in the custody of his mother. The offender has advised his children reside with him every second weekend. CYPS have indicated concerns relating to the offender's illicit drug possession and use, his turbulent relationship with his ex-partner, and his mental health, namely a suicide attempt earlier this year. The offender has since separated from his ex-partner and has expressed no further suicidal ideation.

43. The offender did not dispute the statement of facts, but appeared to minimise the seriousness of the offences. He denied any intention to sell the illicit substances found in his possession, and stated he had obtained them for personal use only. While the offender was aware that his illicit drug use with a primary contributor to his offending behaviours, he did not appear to have taken the steps required to achieve and maintain abstinence. The ICOAR author stated that "[t]o his credit, [the offender] seemed to recognise the connection between his illicit drug use and mental health and has continued to address his mental health through his GP".

44. The offender has been assessed at a medium level of general reoffending. The author considered the offender's primary dynamic risk factors to be his mental health, illicit drug use, unemployment, financial stressors and history of antisocial associations.

45. It was also of concern that while the offender has recognised his substance abuse was a key contributor to his offending behaviours, but is yet to address such issues.

46. The author of the ICOAR ultimately recommended the offender is not suitable for an ICO due to his ongoing methamphetamine use. The author also recommended that if the offender is sentenced in accordance with s 78(6) of the Sentencing Act, the following factors be targeted: illicit drug use, mental health, unemployment and financial difficulties.

47. 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.

48. 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 tailor the order to suit the circumstances of the offence and the offender but still sufficiently structured to ensure every order places appropriate demands on an offender.

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

(a) 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: he 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]).

(b) 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]).

(c) 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 issues 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.

51. It must be stated there are understandable concerns on the part of the author of the ICOAR should the offender continue to use illegal substances. Nevertheless, one objective of imposing an ICO is ensuring the offender has assistance in ceasing to use illegal substances, thereby improving himself and becoming a worthwhile member of the community. The prosecution also submitted that an ICO is appropriate despite the recommendation of non-suitability by the report's author. 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 has some insight, and the matters an ICO would target for the offender include "illicit drug use, mental health, unemployment and financial difficulties." The offender requires intensive assistance in the community.

52. 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.

53. 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, denunciation, and recognition of harm to the victim are important sentencing considerations.

54. Rehabilitation is also an important consideration. The offender's counsel submitted that the offender has a trade and is able to recommence work that would assist him in the process of rehabilitation (T 13.3).

55. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of a non-full time custodial option, including in the form of an ICO. The offender's counsel submitted that an ICO would provide additional counselling support, per the outcomes of Dr Ogloff's report and the PSR.

56. 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.

57. 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].

58. 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].

59. 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, subjective matters, and the suitability of an ICO.

60. The appropriate sentence for the offence of possession of a prohibited weapon is 2 months and 15 days reduced to 2 months on account of the discount for the plea of guilty.

61. The appropriate sentence for the offence of possession of a drug of dependence for the purpose of sale or supply is 14 months reduced to 11 months on account of the discount for the plea of guilty.

62. The total aggregate sentence, incorporating appropriate accumulation and concurrency, is 1 year.

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

(b) In respect of the offence of possession of a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2018/2619) the offender is sentenced to a term of 2 months' imprisonment, commencing on 23 August 2019 and ending on 22 October 2019.

(c) In respect of the offence of possession of a drug of dependence, possession for the purpose of sale or supply contrary to s 164 of the Drugs of Dependence Act 1989 (ACT) (XO2018/31450) the offender is sentenced to a term of 11 months' imprisonment, commencing on 23 September 2019 and ending on 22 August 2020.

(d) The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT). I impose the core conditions and the following additional condition:

(i) That the offender undertake such programs or counselling as directed by the Director-General to address the factors stipulated in the ICOAR prepared for the offender dated 16 August 2019, specifically: intervention for illicit substance use, mental health support and intervention with respect to unemployment and financial difficulties.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson