R v Celeski
[2020] ACTSC 310
•29 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Celeski |
Citation: | [2020] ACTSC 310 |
Hearing Date: | 29 September 2020 |
DecisionDate: | 29 September 2020 |
Before: | Burns J |
Decision: | See [27]–[41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted theft – burglary – damaging property – dishonestly driving motor vehicle – theft – trespass – two counts obstructing territory official – unauthorised possession ammunition – two counts possession of drug of dependence – pleas of guilty – consideration of mental impairment on moral culpability – good prospects for rehabilitation |
Legislation Cited: | Crimes Act 1914 (Cth) s 20 |
Parties: | The Queen (Crown) David Celeski (Offender) |
Representation: | Counsel E Wren (Crown) P Bevan (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Peter Bevan Solicitors (Offender) | |
File Numbers: | SCC 78 of 2016; SCC 79 of 2016; SCC 80 of 2016; SCC 81 of 2016 |
BURNS J:
David Celeski, you have entered pleas of guilty for the following offences:
· an offence of attempted theft which occurred on 19 November 2015;
· an offence of damaging property which occurred on 22 January 2016;
· an offence of dishonestly riding in a motor vehicle without consent which occurred on 22 January 2016;
· an offence of burglary which occurred on 22 January 2016;
· an offence of theft which occurred on 22 January 2016;
· an offence of trespass which occurred on 19 November 2015;
· an offence of obstructing a Territory official which occurred on 19 November 2015;
· an offence of unlawful possession of ammunition which occurred on 22 January 2016;
· an offence of obstructing a Territory official which occurred on 22 January 2016;
· an offence of possession of a drug of dependence which occurred on 22 January 2016; and
· a further offence of possession of a drug of dependence which also occurred on 22 January 2016.
In sentencing you for the offence of attempted theft which occurred on
19 November 2015, you ask that I take into account an additional offence of damaging property which also occurred on 19 November 2015. This additional offence is contained on a
List of Additional Offences dated 28 September 2020 which has been signed by you and by a delegate of the Director of Public Prosecutions.
The offence of attempted theft, contrary to s 308 of the Criminal Code 2002 (ACT)
(the Criminal Code), carries a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both. The offence of theft carries the same maximum penalty.
The offence of damaging property, contrary to s 403 of the Criminal Code, carries a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both. The offence of dishonestly riding in a motor vehicle without consent, contrary to
s 318(2) of the Criminal Code, carries a maximum penalty of five years' imprisonment, a fine of $75,000, or both.
The maximum penalty for the offence of burglary, contrary to s 311 of the
Criminal Code, is 14 years' imprisonment, a fine of $210,000, or both. The maximum penalty for the offence of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), is a fine of $1,800.
The maximum penalty for the offence of obstructing a Territory official, contrary to
s 361(1) of the Criminal Code, is two years' imprisonment, a fine of $30,000, or both. The maximum penalty for the offence of unauthorised possession of ammunition, contrary to s 249(1) of the Firearms Act 1996 (ACT), is a fine of $1,500. The maximum penalty for the offence of possession of a drug of dependence, contrary to
s 169(1) of the Drugs of Dependence Act 1989 (ACT), is two years' imprisonment, a fine of $7,500, or both.
You entered pleas of guilty to the charges of attempted theft, damaging property, and dishonestly riding in a motor vehicle without consent after you had been committed for trial. At the same time, you entered pleas of guilty to the two charges of possession of a drug of dependence, and the charge of trespass. At that point in time,
the Criminal Case Conference procedure had not been implemented.
I will reduce by approximately 20 per cent the sentences which would otherwise have been appropriate for these offences to reflect your pleas of guilty.
Pleas of guilty were entered to all other charges in the ACT Magistrates Court. I will reduce by approximately 25 per cent the sentences which would otherwise have been appropriate for these offences to reflect your pleas of guilty.
The facts
A comprehensive Statement of Facts was tendered at the sentence hearing earlier today. I will not recite the Statement of Facts. Most of the offences may be described as typical of their type.
I will say with respect to the offence of attempted theft on 19 November 2015 that the facts reveal considerable planning and premeditation attending that offence. The attempt was also well advanced before it was thwarted.
In regard to the offences of 22 January 2016, the burglary occurred in a residential car park which is somewhat less serious than a similar offence inside a home.
With regard to the offence of riding in a motor vehicle without consent, I note that this offence occurred as part of the commission of other offences.
Moral culpability
In determining your moral culpability for these offences, I take into account the report of Dr Stephen Allnutt, a forensic psychiatrist, dated 23 August 2017. This report was prepared for sentence proceedings in this Court with regard to the present offences and also sentencing in New South Wales for offences that occurred at about the same time in that jurisdiction. I note that you were sentenced to terms of imprisonment in
New South Wales which explains the delay in disposing of the present matters.
Dr Allnutt noted that you have a history of mental impairment described as anxiety and depression going back approximately 20 years. At one time, there appears to have been a diagnosis of bipolar disorder. You were treated with medication for anxiety but regrettably it appears that you became dependent upon that medication. You began using cocaine and methamphetamine around 2007 because of the help they gave to you to get you through your day. Your drug use escalated after your daughter was diagnosed with autism. You described some disordered thinking around the time of the commission of these offences whilst you were heavily using drugs.
At the time that you were seen by Dr Allnutt, you were manifesting symptoms of a resolving depressive episode. Your disordered thinking was probably
drug-induced. It was Dr Allnutt's opinion that a causal change existed starting with your genetic predisposition to depression, followed by the development of recurrent depressive disorder, leading to the use of substances to manage your depression and psychological stress. This led to the development of a substance dependence or use disorder and addiction, which then served to disinhibit you due to periods of intoxication with psychotic symptoms contributing to your decision-making.
I note that Dr Allnutt states that you presented as an individual who was remorseful and contrite for your offending. It was his opinion that as long as you discontinued the use of substances, your prospects for rehabilitation are good. I accept that on the basis of Dr Allnutt's report a degree of moderation of your moral culpability for these offences is warranted due to your then mental impairment.
Subjective features
I accept that you used the time when you were in prison in New South Wales in order to commence and consolidate the process of rehabilitation. You undertook numerous courses designed to assist in that process.
Since being released from prison in New South Wales, you have voluntarily undertaken psychological treatment and you have commenced the
SMART Recovery Program conducted by Directions.
You gave evidence before me of your desire to avoid re-offending and your remorse for what you have done. You have obtained steady employment in the building industry and you have a supportive family.
If you maintain abstinence from illicit drugs and undertake appropriate treatment for mental health issues, I am satisfied that you have good prospects for rehabilitation.
It has been rightly considered by your counsel that these were serious offences and, with the exception of those offences which carry only a monetary penalty, deserve the imposition of terms of imprisonment.
The Crown has not opposed the imposition of suspended sentences of imprisonment, bearing in mind the delay in sentencing for these offences, the sentence of imprisonment which you have served in New South Wales, and the significant steps towards rehabilitation that you have taken. As I said earlier, I accept that this is the appropriate disposition with regard to these offences before me which carry terms of imprisonment.
I note that you have spent 148 days, or approximately five months, in
pre-sentence custody with regard to the present charges.
I note that your co-offender with regard to the offence of attempted theft on
19 November 2015 was sentenced in the ACT Magistrates Court to a term of imprisonment of five months after pleading guilty in that Court. Both you and your
co-offender had previous criminal histories and I see no reason to distinguish between the two of you based upon your criminal histories or your degree of participation in the offence.
It is not clear what sentencing discount was applied in the
ACT Magistrates Court for your co-offender's plea of guilty. In my opinion, however, nothing less than the period of five months' imprisonment would be appropriate for this offence, bearing in mind the fact that in sentencing you for that offence I am taking into account another offence on the List of Additional Offences.
Sentence
For the offence of attempted theft on 19 November 2015 (CC 10986/2015), I record a conviction and you are sentenced to five months' imprisonment, commencing on
29 April 2020 and expiring on 28 September 2020, that is yesterday. You have in effect served this term of imprisonment which allows for the pre-sentence custody to which I referred. In sentencing you for this offence, I take into account the offence of damaging property found on the List of Additional Offences.
For the offence of burglary which occurred on 22 January 2016 (CC 1268/2016), I record a conviction and you are sentenced to 12 months' imprisonment, commencing today, 29 September 2020, and expiring on 28 September 2021.
For the offence of damaging property which occurred on 22 January 2016
(CC 1271/2016), I record a conviction and you are sentenced to eight months' imprisonment, commencing today, 29 September 2020, and expiring on 28 May 2021.
For the offence of dishonestly riding in a motor vehicle without consent which occurred on 22 January 2016 (CC 1994/2016), I record a conviction and you are sentenced to six months' imprisonment commencing today, 29 September 2020, and expiring on
28 March 2021.
For the offence of theft which occurred on 22 January 2016 (CC 1267/2016), I record a conviction and you are sentenced to four months' imprisonment commencing today, 29 September 2020, and expiring on 28 January 2021.
For the offence of trespass which occurred on 19 November 2015
(CC 10987/2015), I record a conviction and without passing sentence you will be released upon entering into a Recognisance Release Order with self-surety in the sum of $100 to be of good behaviour for a period of three months.
For the offence of obstructing a Territory official which occurred on
19 November 2015 (CC 551/2016), I record a conviction and you are sentenced to
two months' imprisonment, commencing on 29 August 2021 and expiring on
28 October 2021.
For the offence of unauthorised possession of ammunition which occurred on
22 January 2016 (CC 1269/2016), I record a conviction and there will be a
Good Behaviour Order for a period of three months, commencing today,
29 September 2021, and expiring on 28 December 2020. I impose no conditions other than the core conditions with respect to that Good Behaviour Order.
For the offence of obstructing a Territory official on 22 January 2016
(CC 1270/2016), I record a conviction and you are sentenced to
two months' imprisonment, commencing today, 29 September 2020, and expiring on 28 November 2021.
For each of the offences of possession of a drug of dependence which occurred on
22 January 2016 (CC 1997/2016; CC 1998/2016), I record convictions and on each matter you are sentenced to two months' imprisonment, commencing on
29 September 2021 and expiring on 28 November 2021.
The sentences which I have imposed fall into three categories. First, there is the sentence for the offence of attempted theft on 19 November 2015. I have backdated that sentence to allow for pre-sentence custody such that you have now completed that sentence of imprisonment.
Secondly, there are terms of imprisonment commencing today,
29 September 2020, or later. The aggregate sentence which I have imposed is one of 14 months' imprisonment commencing today, 29 September 2021, and expiring on
28 November 2021.
Those sentences will be wholly suspended and there will be
Good Behaviour Orders for a period of 18 months from today, 29 September 2020, with the following conditions:
(a) firstly, that you accept the supervision of the Director-General of ACT Adult Corrections or that person's delegate for that period of 18 months or such lesser period as deemed appropriate by your supervising officer; and
(b) secondly, that you are to undertake such assessments, counselling, or treatment as directed by the Director-General or that person's delegate, particularly with regard to avoiding relapse into illicit drug use and addressing mental health issues.
The third category of sentence that I have imposed is the Recognisance Release Order and the Good Behaviour Order which I have imposed for the offences of trespass and unauthorised possession of ammunition respectively.
So effectively there is one sentence that you have already served. There are a number of sentences which add up to 14 months' imprisonment commencing today, all of which are suspended with a Good Behaviour Order for a period of 18 months. Then finally, there is a Commonwealth Recognisance Release Order under
s 20 of the Crimes Act 1914 (Cth) for three months and there is a
Good Behaviour Order under the Crimes (Sentencing) Act 2005 (ACT) for a period of three months. I will direct that you report within 24 hours to ACT Corrections.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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