R v Celeski (No 2)
[2022] ACTSC 393
•18 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Celeski (No 2) |
Citation: | [2022] ACTSC 393 |
Hearing Date: | 11 November 2022 |
Decision Date: | 18 November 2022 |
Before: | Refshauge AJ |
Decision: | (1) David Celeski be convicted of possessing a prohibited firearm (CAN 1384/2022) and be sentenced to 9 months imprisonment to commence on 5 February 2022 and end on 4 November 2022. (2) David Celeski be convicted of trafficking in a controlled drug, namely methylamphetamine (CAN 1387/2022) and be sentenced to 11 months imprisonment to commence on 5 November 2022 and end on 4 October 2023. (3) David Celeski be convicted of possessing the proceeds of crime (CAN 1392/2022) and be sentenced to 7 months imprisonment to commence on 5 August 2023 and end on 4 March 2024. (4) David Celeski be convicted of trafficking in a controlled drug, namely heroin (CAN 3327/2022) and be sentenced to 12 months imprisonment to commence on 5 January 2024 and end on 4 January 2025. (5) David Celeski be convicted of supplying a declared substance (CAN 6749/2022) and be sentenced to 9 months imprisonment to commence on 5 November 2024 and end on 4 August 2025. (6) David Celeski be convicted of possessing ammunition (CAN 1385/2022) and be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 2 months from 5 November 2026, until 4 January 2027. (7) David Celeski be convicted of possessing a declared substance (CAN 6748/2022) and be sentenced to 2 months imprisonment to commence on 5 July 2025 and end on 4 September 2025. (8) The Good Behaviour Order made on 29 September 2020 for the offences of burglary (CC 2016/1268), damaging property (CC 2016/1271), dishonestly riding in a motor vehicle (CC 2016/1994), theft (CC 2016/1267), obstructing a territory official (CC 2016/551), obstructing a territory official (CC 2016/1270), possessing a drug of dependence (CC 2016/1997) and possessing a drug of dependence (CC 2016/1998) be cancelled. (9) The conviction for burglary (CC 2016/1268) be confirmed and David Celeski be sentenced to 12 months imprisonment to commence on 5 September 2025 and end on 4 September 2026. (10) The conviction for damaging property (CC 2016/1271) be confirmed and David Celeski be sentenced to 8 months imprisonment to commence on 5 January 2026 and end on 4 September 2026. (11) The conviction for dishonestly riding in a motor vehicle (CC 2016/1994) be confirmed and David Celeski be sentenced to 6 months imprisonment to commence on 5 March 2026 and end on 4 September 2026. (12) The conviction for theft (CC 2016/1267) be confirmed and David Celeski be sentenced to 4 months imprisonment to commence on 5 May 2026 and end on 4 September 2026. (13) The conviction for obstructing a territory official (CC 2016/551) be confirmed and David Celeski be sentenced to 2 months imprisonment to commence on 5 August 2026 and end on 4 October 2026. (14) The conviction for obstructing a territory official (CC 2016/1270) be confirmed and David Celeski be sentenced to 2 months imprisonment to commence on 5 September 2026 and end on 4 November 2026. (15) The conviction for possessing a drug of dependence (CC 2016/1997) be confirmed and David Celeski be sentenced to 2 months imprisonment to commence on 5 September 2026 and end on 4 November 2026. (16) The conviction for possessing a drug of dependence (CC 2016/1998) be confirmed and David Celeski be sentenced to 2 months imprisonment to commence on 5 September 2026 and end on 4 November 2026. (17) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for David Celeski for 2 years from today (commencing on 18 November 2022 and ending on 17 November 2024) in respect of the primary offence of trafficking in a controlled drug, namely heroin (CAN 3327/2022), of which he has been convicted and for which he has been sentenced to 12 months imprisonment. (18) That Order be extended to the offences of trafficking in a controlled drug, namely methylamphetamine (CAN 1387/2022), possessing the proceeds of crime (CAN 1392/2022), supplying a declared substance (CAN 6749/2022), possessing a declared substance (CAN 6748/2022), burglary (CC 2016/1268), damaging property (CC 2016/1271), dishonestly riding in a motor vehicle (CC 2016/1994), theft (CC 2016/1267), obstructing a territory official (CC 2016/551), obstructing a territory official (CC 2016/1270), possessing a drug of dependence (CC 2016/1997) and possessing a drug of dependence (CC 2016/1998), of which David Celeski has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. (19) It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. (20) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 18 November 2022, until 4 November 2026. (21) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), David Celeski be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 18 November 2024, until the end of the total sentence, 4 November 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. (22) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; (b) David Celeski undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; (c) David Celeski not return a positive test sample under alcohol and drug testing; and (d) David Celeski comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (23) David Celeski be directed to appear in Court on Friday 25 November 2022 at 11:30 am. (24) David Celeski be directed to attend the Court registry before he leaves the Court precincts to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of this order and the Good Behaviour Order for the possession of ammunition. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in and possession of drugs - Possession of a firearm and ammunition - Possession of proceeds of crime - Breach of Good Behaviour Order - Drug and Alcohol Treatment Order made |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12A, 31, 33, 46J, 78, 80S Crimes Act 1900 (NSW) ss 93G, 114C Criminal Code 2002 (ACT) s 603 Criminal Code Regulation 2005 (ACT) Sch 1 Firearms Act 1996 (ACT) s 249 Firearms Regulation 2008 (ACT) ss 12, 221 Medicines Poisons and Therapeutic Goods Act 2008 (ACT) ss 25, 26, 36 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions v Basic [2012] VSCA 376 Douglas and Albone v The Queen (1995) 56 FCR 465 Ede v Hyde [2014] ACTSC 305 Ellis v The Queen [2018] VSCA 221 Ex parte Halliday (1893) 10 WN (NSW) 88b Guy v Anderson & Telford [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kajevic v Noble [2021] ACTSC 67 Mack v The Queen; Mack v The Queen [2009] NSWCCA 216 R v Afacan [2015] VSC 255 R v Antoniak [2021] ACTSC 228 R v Antonovic (No 3) [2021] ACTSC 338 R v Blaskovic [1999] FCA 1306 R v Butler [2020] ACTSC 170 R v Celeski [2020] ACTSC 310 R v Celeski [2022] ACTSC 229 R v Crawford (No 1) [2020] ACTSC 245 R v Daquinta [2014] ACTSC 131 R v De Simoni (1981) 147 CLR 383 R v Di Bitonto [2016] ACTSC 280 R v EL [2016] ACTSC 241 R v Featherstone [2019] ACTSC 218 R v French [2020] ACTSC 133 R v Green [2021] ACTSC 356 R v Hamouche [2020] ACTSC 194 R v Henry [1999] NSWCCA 111; 44 NSWLR 346 R v Keir [2017] ACTSC 131 R v Kelly (No 2) [2021] ACTSC 253 R v Killic [2016] HCA 48; 259 CLR 256 R v Massey (No 1) [2020] ACTSC 256 R v Massey [2018] ACTSC 221 R v Matthew [2020] ACTSC 364 R v McConnell-Imbriotis [2019] ACTSC 267 R v Mitchell [2016] ACTSC 85 R v Pattman; R v Pattman [2021] ACTSC 228 R v Pearce (No 2) [2022] ACTSC 71 R v Pelecky (No 2) [2020] ACTSC 370 R v Peric(No 3) [2022] ACTSC 387 R v Pullen [2014] ACTSC 220 R v Smith [2019] ACTSC 196 R v Stephen [2020] ACTSC 283 R v Toumo'ua [2017] ACTCA 9 R v Vimahi; R v Grech (No 2) [2017] ACTSC 176 R v Visser [2016] ACTSC 261 R v Walker; R v Walker [2016] ACTSC 232 R v Williams [2022] ACTSC 72 R v NF (No 1) [2016] ACTSC 216 Saga v Reid [2010] ACTSC 59 Talbot v The Queen (1992) 59 A Crim R 383 Tate v The Queen [2012] ACTCA 50 Ward v Marsh [1959] VR 26 |
Texts Cited: | F Rinaldi, Drugs Offences in Australia, Volume 1 - Sentencing (Law Book Company, Sydney, 1986) I Dobson and P Poletti, Buying and Selling Heroin – A Study of Heroin User/Dealers (NSWBOCSAR, Sydney, 1988) |
Parties: | Director of Public Prosecutions ( Crown) David Celeski ( Offender) |
Representation: | Counsel E Wren ( Crown) P Edmonds ( Offender) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Offender) | |
File Number: | SCC 174 of 2022 SCC 175 of 2022 |
REFSHAUGE AJ:
Introduction
1․David Celeski appears for sentence on his plea of guilty for seven offences relating to his possession and supply of drugs and associated crimes.
2․There can be no doubt that the use of some illegal drugs can have a devastating effect on the consumers, their families and associates, and indeed the community at large. Clearly, the supply of those drugs fuels such use and therefore is part of the cause of those devastating effects. This was explained further in R v NF (No 1) [2016] ACTSC 216 at [35]-[39].
3․Nevertheless, as was said in R v Green [2021] ACTSC 356 at [2]:
Of course, the causes of drug dependency and, indeed, of why people traffic in illicit drugs are complex, and not to be viewed through a simple and monochromatic lens. As with most things involving human beings, there are always multiple issues and perspectives that must be considered.
4․The offences for which Mr Celeski must be sentenced are trafficking in a controlled drug, namely, heroin, trafficking in a controlled drug, namely, methamphetamine, supplying a declared substance, unauthorised possession of a prohibited firearm, possession of ammunition, possession of property suspected of being the proceeds of crime and possession of a declared substance.
5․Mr Celeski has sought that any sentence imposed for these offences be served by a Drug and Alcohol Treatment Order (Treatment Order) to be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
6․For the sentencing of Mr Celeski, the Crown tendered without objection the Crown Tender Bundle. Behind the prescribed and helpful cover sheet it contained the committal and transfer documentation, an Agreed Statement of Facts, Mr Celeski's criminal history, a Pre-Sentence Report dated 23 August 2022 and a photograph of the prohibited firearm, the subject of one of the charges against him.
7․It also contained a copy of the decision of R v Celeski [2020] ACTSC 310 (Celeski [2020]), being the sentencing remarks when Mr Celeski was sentenced for earlier offences, and for which offences he was sentenced to 14 months imprisonment, not including a sentence served through the pre-sentence custody period.
8․That sentence of imprisonment was suspended and a Good Behaviour Order made. These current offences will, on his conviction for them, breach that Good Behaviour Order.
9․Accordingly, the Crown Tender Bundle also contained a statement of facts for the breach matters, as these facts were, somewhat curiously, not set out in R v Celeski 2020, even in a summarised form.
10․Further contained in the Crown Tender Bundle were Drug and Alcohol Treatment Suitability Assessments (Suitability Assessments) made under s 46J of the Sentencing Act. These were a Drug and Alcohol Sentencing List Suitability Assessment dated 26 October 2022 of Alcohol and Drug Services, to which was attached a Case Plan for Mr Celeski, and a Drug and Alcohol Treatment Assessment dated 7 November 2022 of ACT Corrective Services, curiously and erroneously called a Drug and Alcohol Sentencing Assessment in the Crown Tender Bundle cover sheet.
11․Mr P Edmonds, counsel for Mr Celeski, tendered without objection a letter from Antonakis Holdings Pty Ltd dated 8 September 2022, offering Mr Celeski employment, a certificate of completion of an alcohol and drug program dated 26 September 2022 issued by ACT Corrective Services and a letter from Ms Laura Gerstenberg of ACT Corrective Services Specialist Communities Team dated 5 October 2022.
12․Mr Celeski had also signed a form consenting to the making of a Treatment Order and acknowledging that he had had such an order explained to him, including the opportunity to ask questions, which had been answered. The form was filed with the Court.
13․None of the contents of any of these documents were the subject of any challenge. Ms Wren, Crown Prosecutor, and Mr Edmonds both filed written submissions and spoke to them, also valuably engaging with the Court and its questions. From this material the Court makes the following findings.
The facts
14․The facts of these offences were all based on the events occurring on one day in one incident, set out as follows.
15․In the early hours of the morning of Saturday, 5 February 2022, Mr Celeski went to an adult services venue in Mitchell ACT, taking a Puma bag with him. While he was there, he was seen by an employee of the establishment.
16․The evidence did not give further details, other than that while he was seen by the employee he poured some substance from a vanilla extract bottle into the cap of the bottle and handed it to her, though he was not authorised to do so. The employee took the cap and drank the liquid. There was no suggestion in the evidence that she had been unwilling to do so, or that she did not know, or at least believe she knew, what the liquid was.
17․Mr Celeski spent several hours there, but, at 9.16 am, the receptionist of the establishment found him unconscious and called an ambulance. When the ambulance arrived, the ACT Ambulance Officers began rendering first aid to him. They searched his personal possessions to try and find some identification. In doing so, they opened the Puma bag and found a large amount of currency, a firearm and a substance suspected of being illicit drugs. Accordingly, they called the police.
18․Police officers arrived at the establishment at about 10.00 a.m. and, as a result of what they had been told and seen, arrested Mr Celeski.
19․They searched his possessions also and found the firearm, Australian currency to the value of $12,271.98 in mostly $50 notes, but also a significant number of $10 and $5 notes, some $100 and $20 notes and some coins, three telephones and a large clip seal bag containing a substance later analysed as 40.44 grams of heroin. As Mr Celeski was still unconscious, he was taken to Calvary Hospital under police guard.
20․Inspection of the firearm showed that it was an operational Colt 1911 with a magazine containing a significant number of rounds of ammunition, though not numerically specified in the evidence, and was cocked with a round of ammunition in the firing chamber, though the safety catch was on.
21․At the hospital, the staff later handed to police two further clip seal bags containing white substances and a bottle containing a substance. The substances were all taken for analysis by the ACT Government Analytical Laboratory and found to contain 26.158 grams of methamphetamine, 1.6 grams of heroin and 7 grams of 1,4 Butanediol, a declared substance within the meaning of s 25 of the Medicines Poisons and Therapeutic Goods Act 2008 (ACT).
22․The firearm was a prohibited firearm under Schedule 1 Item 21 of the Firearms Act 1996 (ACT) (Firearms Act) and was capable of firing a 0.45 Aussie copper projectile and, at the time of seizure, it had a round of ammunition of a 9.6-millimetre calibre in the firing chamber.
23․On 6 February 2022, Mr Celeski was discharged from hospital and transported to the ACT Watchhouse.
The proceedings
24․After discharge from hospital, Mr Celeski was brought before the ACT Magistrates Court on 7 February 2022 where he was charged with possessing a prohibited firearm, trafficking in a controlled drug, namely, methamphetamine, dealing with the proceeds of crime and possessing ammunition. He did not apply for bail and was remanded in custody.
25․The proceedings were adjourned four times while he remained in custody and then, on 28 April 2022, he was further charged with trafficking in a controlled drug, heroin, to which he pleaded not guilty as he also did to the other offences with which he had been charged.
26․The proceedings were adjourned twice more to 13 July 2022. On that day, however, he was finally charged with the remaining two offences, namely, supplying and possessing a declared substance. He then pleaded guilty to all the offences with which he had been charged and was committed for sentence to this Court. He remained in custody.
27․He appeared initially before Elkaim J for sentence. His Honour then referred him to the Drug and Alcohol Sentencing List: see R v Celeski [2022] ACTSC 229 (Celeski [2022]). He appeared in the Drug and Alcohol Sentencing List on 23 September 2022, when a foreshadowed bail application was withdrawn, and Suitability Assessments were directed to be prepared. A date for sentence for set
28․He remained in custody and has now been in custody since 5 February 2022, being 287 days. This period must be taken into account on sentence.
29․As occurred in R v Massey (No 1) [2020] ACTSC 256, that period of custody may be served in whole by a sentence for one or more of the offences, which sentence would then be fully served by the date of the sentence for the remainder of the charges.
The offences
30․The imposition of a sentence is, in the laws of this Territory, to be effected by an instinctive synthesis: see Tate v The Queen [2012] ACTCA 50 at [76]. As explained by the High Court of Australia in cases such as Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 224,226-7; [39], [51], an instinctive synthesis is when all the relevant factors are identified, then their significance discussed and a value judgment made as to the appropriate sentence based on these factors, since as much transparency as is reasonably possible is required. Thus, the relevant factors must be identified and considered.
31․Section 31(1) of the Sentencing Act sets out factors that must be considered. First mentioned of these are the nature and circumstances of the offence. For this purpose, the following matters must be considered. First, of course, are the facts of the case as found by the Court sentencing the offender. This has been set out above (at [14] - [22]).
32․The next matter is the maximum penalty set by the Legislature for the offence or offences. It is important:
1.firstly, because it is the Legislature’s mandate;
2.secondly, because it invites a comparison between the case now before the Court for which the sentence is required and the worst possible case; and
3.thirdly, because it provides, taken and balanced with all the other relevant factors, a yardstick.
33․Finally, s 33(1)(za) of the Sentencing Act requires consideration of current sentencing practice, which, in part, helps to identify what the Courts sentencing offenders, or hearing appeals from sentences, have identified as the factors aggravating or mitigating offences in the way that the offence in the case before the Court has actually been committed, since most offences can be committed in a wide variety of ways.
34․These are the matters now to be considered.
35․Unauthorised possession of prohibited firearm is an offence under s 42(1)(iii) of the Firearms Act, which sets a maximum penalty of 10 years imprisonment. It is, accordingly, identified by the Legislature as a serious offence, though not as serious as many seen in this Court.
36․Consequences of the use or, more particularly, misuse of a firearm can be seen regularly in the United States of America, or closer to home in the Port Arthur massacre, which justifies the serious approach that the criminal law takes to such offences: see R v Di Botonto [2016] ACTSC 280 at [3].
37․In this case, the Colt pistol fell within Item 21 of Schedule 1 of the Firearms Act since the Crown informed the Court without objection that it was of 11.5-millimetre calibre and that Item identifies a pistol of more than 9.65-millimetre calibre as a prohibited pistol. It seems that a pistol with a greater calibre is probably more powerful. It is noted that it could not be possessed even by the holder of a category H firearms licence: see s 12(1) of the Firearms Regulation 2008 (ACT). This follows the National Firearms Agreement between the Commonwealth of the States and Territories: see s 14B(1)(c) of that Agreement. Notably, such pistols under the Agreement must have a magazine capacity of no more than 10 rounds.
38․The Crown submitted that the offence was more serious because the firearm was carried in a public place. This is not straightforward.
39․For example, it has been held, though possibly in a jurisdiction with a relatively different legislative framework, that it is not an aggravating feature: see R v Afacan [2015] VSC 255 at [45], a decision cited, apparently with approval, by the Victorian Court of Appeal in Director of Public Prosecutions v Basic [2012] VSCA 376 at [28]. In New South Wales, for example, there is a specific offence of carrying a firearm in a public place: see s 93G(1) of the Crimes Act 1900 (NSW).
40․There is, in fact, such an offence in s 221 of the Firearms Act, though with a less serious penalty, namely, one year imprisonment, or a fine of $16,000, or both.
41․Thus, the authority of R v De Simoni (1981) 147 CLR 383 would not directly require that the factor cannot be taken into account for Mr Celeski would not be punished for what is a more serious crime not charged.
42․Though the fact that the carrying of a firearm in a public place is a separate offence does not suggest that it is not relevant, despite an implied suggestion in R v Walker; R v Walker [2016] ACTSC 232 at [2]. In any event, the adult services facility is unlikely to be a public place. The meaning of “public place” has caused much consideration by the Courts, as explained in Ward v Marsh [1959] VR 26 at 26, as there noted:
[t]he books abound with instances of what is and what is not a public place […]
43․Some are inconsistent, such as that sometimes a shop is a public place (Ex parte Halliday (1893) 10 WN (NSW) 88b) and sometimes it is not (Ward v Marsh). The adult services facility is unlikely to be a public place since there are significant restrictions on access, such as by children or alcohol or drug-affected persons. Nevertheless, it is a place where quite a number of people may gather. That may be enough to somewhat aggravate the offence to a limited degree.
44․The reason for having the firearm is relevant, and if there is no proper reason, that is a matter of aggravation: R v Mitchell [2016] ACTSC 85 at [98]. Here, no reason was advanced, but, similarly, there was no evidence that could allow a finding beyond reasonable doubt that it was to be used for offensive rather than recreational or defensive purposes.
45․In Mack v The Queen; Mack v The Queen [2009] NSWCCA 216, the Court of Criminal Appeal in New South Wales set out a number of relevant factors. The decision has been followed in this jurisdiction and the factors accepted: see Kajevic v Noble [2021] ACTSC 67 at [24].
46․Without needing to enumerate all the factors, but only those that are relevant, the following are noted. There was only one weapon and it was loaded, which is a serious matter, however the safety catch was on: see Celeski[2022] at [13]. It was not stored particularly securely, but was not exposed to public view. Nevertheless, as decided that it was relevant in R v McConnell-Imbriotis [2019] ACTSC 267 at [14], it was of a size, so far as the photograph showed, that it was relatively easy to conceal.
47․There was no evidence of how long Mr Celeski had possessed it, or whether he had ever used it, whether by firing or simply brandishing it to put pressure on others. Similarly, there was no evidence of his immediate intention to use it. Thus, for example, the employee of the adult services establishment did not say, though she may not have been asked, that it was shown to or seen by her or anyone else to her knowledge. Again, there was no evidence of how Mr Celeski had obtained it. It was a relatively serious, but not a very serious, version of the offence.
48․Trafficking in a controlled substance, whether heroin or methamphetamine, is made an offence by s 603(7) of the Criminal Code 2002 (ACT). It attracts a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both.
49․As explained in R v Green at [25]-[26], the principles for assessing the seriousness of this offence are set out in Bui v The Queen [2015] ACTCA 5 at [41], namely, the role of the accused and level of involvement in the operation, weight and purity of the substance and the motivation for its possession and trafficking. As also noted in R v Green at [27], [30]-[31], there is often little evidence of these matters.
50․This can be important, not just for assessing the value of the drug, but it can be part of the assessment of the role of the offender and the level he or she plays in the operation; the higher the purity, the higher up the hierarchy the possessor is likely to be.
51․The Crown accepted that Mr Celeski was a 'street-level dealer'. As explained in R v Daquinta [2014] ACTSC 131 at [16]-[17], a kind of taxonomy has grown up to identify the level of traffickers in the operations of drug supplies. This is set out in F Rinaldi, Drugs Offences in Australia, Volume 1 - Sentencing (Law Book Company, Sydney, 1986). It may be summarised as professional, medium and end of the line dealers: see R v Di Bitonto [2016] ACTSC 280.
52․Another taxonomy used by the New South Wales Bureau of Statistics and Crime Research identifies a somewhat more detailed breakdown. In I Dobson and P Poletti, Buying and Selling Heroin – A Study of Heroin User/Dealers (NSWBOCSAR, Sydney, 1988), the authors identify importers, wholesalers, ounce dealers, user/dealers, small time user dealers and users: see R v Di Bitonto at [26].
53․The Crown assessment, accepted by Mr Edmonds, would make Mr Celeski an end of the line dealer, or a user/dealer, depending on the taxonomy used. Thus, he was not a significant part of the operation of trafficking in drugs and not at a higher, more profitable level where many of those involved were non-users and driven by the desire for profit.
54․The weight is reasonably significant. The methamphetamine was 26.158 grams, four times the trafficable quantity, but less than 1 per cent of the commercial quantity: see the Criminal Code Regulation 2005 (ACT), sch 1, part 1.1, item 44. The heroin was 42 grams, being eight times the trafficable quantity, but 2 per cent of the commercial quantity: Criminal Code Regulation 2005 (ACT), sch 1, part 1.2, item 86. It was, thus, essentially more serious a quantity than the quantity of the methamphetamine.
55․As for the motivation for committing the offences, the only evidence was in the Pre-Sentence Report, where Mr Celeski is reported as saying that the drugs were for his personal use and the attempts to sell them were to offset the costs of and associated with his use, though the amount of drugs and money, which he does not admit was all from drug trafficking, makes this hard to accept. In his submissions, Mr Edmonds reported that Mr Celeski acknowledged that some profit was expected from his trafficking, but that his motivation was not mere profit. This may be accepted.
56․It appears that Mr Celeski is a relatively significant if low level dealer, but not simply a user who sells only occasionally, but one who does so for some profit. Thus, the offence was not at the lowest end of seriousness, but of a significant seriousness, with the trafficking in heroin offence somewhat more serious than the trafficking in methamphetamine.
57․Supplying a declared substance is prohibited by s 26 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), which legislates a maximum penalty of five years imprisonment, or a fine of $80,000, or both.
58․This is not a common offence, and consideration of it has not, therefore, been substantial. Clearly, the reason for the offence is that the substances are medicinal and accordingly administration is better for safety reasons to be managed by a General Practitioner through a prescription system. It also diverts medication from the members of the community who may need it: see Ede v Hyde [2014] ACTSC 305 at [26].
59․The nature and quality of the substance is relevant: see R v Smith [2019] ACTSC 196 at [26]. Also relevant will be the risk of harm from such supply: Ede v Hyde at [19]. The drug was 1,4 Butanediol, which is used in solvent products, but can be used as a substitute for illegal drugs such as gamma-hydroxybutyrate (GHB). It is, thus, effectively equivalent to an illegal drug.
60․Indeed, it seems likely from his report to the ACT Corrective Services officer preparing the Suitability Assessment that he thought it was GHB. The supply was simply a sharing of the drug for recreation without any apparent payment. Though by no means a trivial offence, it is certainly not of the more serious kind.
61․Possession of ammunition is an offence contrary to s 249(1) of the Firearms Act, for which the maximum penalty is a fine of $1,600. It is, thus, the least serious of the offences.
62․The principal considerations are the quantity and nature of the ammunition as noted in R v Massey [2018] ACTSC 221 at [8]. Here, there was one round of ammunition in the firing chamber but also “a number of rounds in the magazine”. This was not further specified, but it may be assumed that there would not have been a large number, probably seven or eight, but most probably a maximum of 10.
63․It is not clear what is referred to by “the nature” of the ammunition. Live ammunition would constitute the offence more serious, of course. Perhaps being loaded in the weapon is also more serious, but this may require some common elements of criminality with the offence of possession of a firearm, where one of the aggravating factors is that it was loaded, and is to be taken into account in sentencing of both offences. It is noted that in R v Massey there were 45 rounds of ammunition, but the objective seriousness was described as “low”.
64․Possession of property suspected of being the proceeds of crime is an offence prescribed by s 114C of the Crimes Act 1900 (ACT) and which attracts a maximum penalty of two years' imprisonment, or a fine of $32,000, or both.
65․The relatively significant amount of cash is clearly an aggravating factor, as is the fact that it is cash which, of course, is more difficult to identify as such proceeds and more readily hidden through purchases, banking or gambling methods.
66․It was explained in R v Green at [36] that there was not a lot of jurisprudence in this jurisdiction as to the seriousness of the offence and what are the aggravating factors. After considering the purpose of the legislation it was noted at [38] that, in addition to the amount, matters such as the sophistication of the operation and the planning and premeditation of the operation leading to the possession of the proceeds of crime is relevant.
67․There is little evidence here of that and, given the agreed assessment of the role of Mr Celeski as a drug trafficker, it seems unlikely that these considerations would have significantly, if at all, aggravated the offence.
68․Finally, possession of a declared substance is made an offence by s 36 of the Medicines, Poisons and Therapeutic Goods Act, and the maximum penalty there legislated is of two years imprisonment, or a fine of $32,000, or both.
69․The nature of the substance is clearly relevant, as is the quantity: see, for example, R v Visser [2016] ACTSC 261 at [17]. The amount of the 1,4 Butanediol was 7 grams, not a large quantity, though, given the amount of supply, not much is consumed each time. There is no evidence about the nature of the substance, though, as noted, it has some similarity to other illegal drugs and no special lethal or other disabling properties. Thus, that it was part of the supply calls also for substantial concurrency in sentence.
Subjective circumstances
70․As well as the nature and circumstances of the offences, the imposition of a proper sentence requires that the court sentencing an offender take into account the subjective circumstances of the offender: see R v Killic [2016] HCA 48; 259 CLR 256 at 266; [19] and s 31(1) of the Sentencing Act. Information from this came from Celeski[2022], the Pre-Sentence Report and the Suitability Assessments.
71․Mr Celeski was born in Macedonia in 1982, the eldest of his parents' three children. He came with his family to Australia in 1988 and they first lived in Sydney. They later moved to Queanbeyan, perhaps because there is a significant Macedonian community there.
72․The household was a prosocial one and his family a loving one. He remains connected with them and they remain supportive. He commenced school with little knowledge of English and this led to him being bullied for a time. He managed, to his credit, to overcome this without reported incident and had thereafter quite a good time at school. He played sport, especially liking soccer, and described himself as “an outdoor child”.
73․He went to high school in Queanbeyan, where he was a good student. The family, however, returned to Macedonia for three years. While in Macedonia, he made many friends and had a good time. This made his return to Australia difficult, but he returned to school at Canberra College, and continued as a good student, studying in a talented class. He suffered feelings of anxiety and depression, however, which has, unfortunately, lasted into his adulthood. After graduating from high school, he commenced a degree in architecture at the University of Canberra, but left after the first year due to his anxiety and depression.
74․He has had a good work history, apparently being in regular employment when not in custody. He worked for a home building company, likely, it appears, the one which has now offered him employment on his release. He has been studying to gain his builder's licence.
75․He commenced a relationship with a partner 23 years ago and they married in 2007. They have three children together aged 10 to 14. Unfortunately, his youngest child was diagnosed with autism and this has had a severe effect on Mr Celeski, escalating his anxiety and depression and leading to his greater drug use. He and his wife have now separated and are planning to divorce.
76․His relationship with her has been difficult, but improved when he left custody after incarceration in New South Wales. He has, however, a good relationship with his children, though, because of his wife and children relocating to Wollongong, this is currently by telephone. It appears that, prior to that, he supported them by actively attending their sporting commitments and with some assistance in domestic activities.
77․Mr Celeski has no antisocial friends, though many of his acquaintances through his drug use and trafficking are antisocial. He does not have many prosocial friends, though he has been an active member of a local social club, where most members are prosocial. He does, however, feel shame amongst the members because of his drug use and criminal activity.
78․He has had a relatively long period of drug use, but it has not prevented his continued employment and he is described as a high functioning person with a drug dependency.
79․Mr Celeski has no current serious physical ailments, though he is prescribed medication for asthma and a thyroid deficiency. His anxiety and depression have been noted and he has been prescribed medication for that also.
80․Mr Celeski began smoking tobacco when he was 16 years old and continued to use until his wife's first pregnancy when he ceased smoking for about a year, but resumed and continues to smoke cigarettes. He is an occasional drinker of alcohol, but it is not problematic for him. He has used cannabis in the past, but not now for over 10 years. He has also used cocaine, but only in social situations and for about 18 months. He has also used MDMA/ ecstasy at weekends since he was 12 years old, finding it “an amazing experience” but only for about three years.
81․His principal drugs of choice are methamphetamine and heroin. He started using methamphetamine when he was 19 years old. It gave him energy, improved his mood and he described it as making him feel “great”. Initially, he used it for about a month and then not again until he was 23 years old, using episodically, that is, for a few months and then abstaining for a few months.
82․He began using more frequently when he was about 26 or 27 years old, leading to daily use, but, again, was able to cease for some months at a time. His anxiety and some self-esteem issues were generally the cause of him starting to use again. His main reason for using was when he was working and when he noticed that his work quality was slipping.
83․He began using heroin about 10 years ago and has used more regularly in the last five years. He has previously managed to cease use without extra help, but has now been placed on an opioid management therapy program, now taking Buvidal monthly.
84․He has had some issues with gambling, especially between the ages of 15 and 21, predominantly playing poker machines. As a result, however, he has self-excluded himself from ACT and New South Wales clubs and also does not attend sports clubs for that reason.
85․He has had some alcohol and other drug therapy. Mostly, he has been able to self-detoxify. When in New South Wales custody, he undertook alcohol and drug programs while in Junee Custodial Centre and, when he was released on parole, did undertake a program of SMART Recovery, which he did enjoy. It did lead to some one-on-one counselling. He also undertook a course in the Alexander Maconochie Centre while in custody, a certificate of completion of which was in evidence.
86․Mr Celeski has taken full responsibility for his offending in this case and, though he suggested that the drugs were for his own use, he did plead guilty to the offences and agreed with the Crown Statement of Facts.
87․Mr Celeski has a very troubling criminal record. It did, however, only commence when he was 18, and he has no criminal record as a juvenile. He has, however, 45 offences on his record, including 11 drug offences, 11 driving offences, including two drug driving offences, and five offences of violence and six offences involving weapons, including three of possessing ammunition.
88․He has committed more serious offences, such as burglary and aggravated breaking entering and stealing. He has been in custody a number of times. There are some significant breaks between his offending. For example, he has on his record no offences committed between February 2003 and December 2007, other than an offence of driving while suspended in May 2005. This period may, however, have coincided with a period when he was overseas. He also committed no offences recorded in his criminal history between September 2011 and December 2015.
89․More recently, he has committed offences more continuously, including while on conditional liberty. The severity of his offending has escalated more recently.
90․Mr Celeski cooperated with the preparation of the Suitability Assessments. He is reported to have “engaged well and was bright and reactive during the interview”.
91․Mr Celeski has committed some of the current offences previously, including possession of a firearm, possession of ammunition, possession of drugs and supplying drugs. This, of course, renders the sentence to be imposed more severe, taking that into account, where appropriate.
Current sentencing practice
92․Section 33(1) (za) of the Sentencing Act requires a Court sentencing an offender to have regard, so far as it is known, to current sentencing practice. Part of that consideration has been addressed above, in determining the aggravating and mitigating factors needing to assess the objective seriousness of the offence.
93․The other aspect of that factor is the consideration of the sentences currently being imposed by Courts now sentencing offenders, or Courts of appeal considering sentencing appeals, identifying, in particular, sentences that are manifestly inadequate or excessive.
94․The information obtained from these matters may come from two sources: the ACT Sentencing Database or from the sentencing remarks of cases suggested to be sufficiently similar or to be comparable. So far as the Sentencing Database is concerned, there are significant limitations which have been addressed elsewhere, such as in R v Matthew [2020] ACTSC 364 at [44]-[45] and R v Peric(No 3) [2022] ACTSC 387 at [72]-[75]. Nevertheless, the records in the Database can provide some assistance.
95․As far as comparable decisions are concerned, none are precedents. Indeed, neither the comparable sentences nor the records on the Database set boundaries or limits, though they are intended to assist in achieving the fairness that is required for the community knowing that proper sentences in accordance with the law are being imposed and that fairness is extended to the offender, who will benefit from the significant sentencing value of consistency.
96․So far as trafficking offences are concerned, Mr Edmonds provided a very helpful table of recent cases. In addition, the court in R v Green at [72]-[74] considered a table prepared by the Crown. The Database shows that of the 85 cases recorded as being dealt with in the Supreme Court, all except five were sentences of periods of imprisonment, though 53 per cent were served by full time imprisonment, 21 per cent by a fully suspended sentence and 14 per cent by a partially suspended sentence.
97․For these latter suspended sentences, that are not sentences of full-time imprisonment, no period of imprisonment is shown unless the remarks are read and less than half are linked to records of the sentencing remarks. For those sentenced to full time imprisonment, the periods ranged from six months or less to six years imprisonment, but only two sentences were of that latter, upper, length. The majority were between six months and three years and eight months, with approximately 80 per cent roughly in that range. These statistics, however, do not show the amount, quality or purity of the drug, nor the role played by the offender.
98․In the helpful table provided by Mr Edmonds, it showed four sentences of between three years and four months to 10 months imprisonment for offenders pleading guilty to the offences of trafficking.
99․Further, none of them had committed the offence while on conditional liberty. Thus, in R v Butler [2020] ACTSC 170, the amount of drugs was 246 grams of cocaine, for which 12 months imprisonment was imposed, and 112 grams of MDMA and MDA, being a combined amount resulting from the crushing of tablets of both drugs. For trafficking these two drugs he was sentenced to 10 months imprisonment each, substantially concurrent as to five months. Mr Butler was 41 years old with a significant criminal record.
100․In R v Hamouche [2020] ACTSC 194, Mr Hamouche, 27 years old, had no criminal record and was trafficking in 390 grams of cocaine when he was sentenced to 14 months imprisonment, suspended after five months.
101․The more serious sentence in R v Williams [2022] ACTSC 72 was one where a 38-year-old man with a significant prior criminal record had trafficked in 790 grams of methamphetamine. He was sentenced to three years imprisonment.
102․In R v Pearce (No 2) [2022] ACTSC 71, Mr Pearce was 39 years old, also with a significant criminal record, trafficking in 170 grams of heroin and was sentenced to three years imprisonment, though an offence of possession of 1.727 grams of methamphetamine was taken into account in that sentence.
103․As to the possession of a firearm, Mr Edmonds also provided a table showing five decisions. The Database showed only 28 records, of which 20 were of sentences of full-time imprisonment. The sentences ranged from less than six months to four years and six months imprisonment, though only two offences were of four years imprisonment or longer. Of all these cases, six of the offenders were recorded as having pleaded guilty, but the plea of the other 14 is not known. They could have pleaded guilty or not. All were aged between 18 and 40 years old, though most were between 21 years old and 30 years old. Most were convicted of multiple offences. The majority were of sentences of between six and 18 months imprisonment, but these samples were relatively small.
104․The table before the Court showed sentences of between 10 months and three years and six months imprisonment. The latter was for possession of 11 firearms, though none were prohibited: see R v Mitchell. Of the others, for one firearm the sentences were of 10 months imprisonment for offenders aged between 29 and 36 years old, but with varying criminal records. All pleaded guilty.
105․In R v Pullen [2014] ACTSC 220, the Court assessed a number of decisions in which the sentences ranged from nine months imprisonment to no more than a recorded conviction. It appears that more recently more severe sentences have been imposed, but the range should be recognised as being cases of more serious offending.
106․In one of the sentences in the table, R v Antoniak [2021] ACTSC 228, Mr Antoniak actually used the firearm. In R v Stephen [2020] ACTSC 283, Mr Stephen had committed a very serious violent attack on the victim, and although the weapon, an airgun, was not used in the attack, it was found in a backpack he had taken to the premises.
107․In R v Pattman; R v Pattman [2021] ACTSC 228 the offender was a member of an outlaw motorcycle gang and had discharged a loaded gun. This was not the gun the subject of the offence. It was a different one found later, which the offender said he kept for his own protection and it appeared to be plain to see in his home. These do seem somewhat more serious offences than that committed by Mr Celeski.
108․As to the possession of ammunition, there are many decisions that have been consulted for these remarks. They include R v Massey, R v Vimahi; R v Grech (No 2) [2017] ACTSC 176, R v Pelecky (No 2) [2020] ACTSC 370, R v Featherstone [2019] ACTSC 218 and R v Keir [2017] ACTSC 131. The sentences have been taken into account in the consideration of an appropriate sentence here.
109․The offence of supplying a declared substance does not appear in the Database for the Supreme Court and there are few decisions. It appears as though the principles of sentencing would be similar to those for trafficking illegal drugs, especially given the nature of the drug supplied here.
110․In the Magistrates Court, where it appears many of the offences are considered, the majority of sentences are a fine or a Good Behaviour Order, though some, too, were sentences of imprisonment wholly or partially suspended and one a sentence of imprisonment of four months of the 15 sentences imposed.
111․In Victoria, a decision of Victorian Court of Appeal, Ellis v The Queen [2018] VSCA 221, considered a case involving butanediol. It was, however, an offence of trafficking in a commercial quantity of a drug of dependence and so not, as in this Territory, a special offence for declared substances. It was also a much more serious offence. The maximum penalty was 15 years imprisonment. That is three times the maximum imprisonment in this Territory, but with no fine. It is, therefore, not a particularly comparable case. The only matter is to show the relation between the actual offences and the maximum penalties where such a drug is involved.
112․As to the offence of possessing the drug, the comments earlier about concurrency are relevant. Decisions, however, that have been considered are R v Visser, R v Massey and R v Smith. In the Database, more than half of the recorded sentences are fines of between $200 and $500 and the sentences of imprisonment were for four months in each case.
113․The offence of possessing property suspected of being proceeds of crimes is committed in such a diversity of ways that assessing comparability with them is difficult. Thus, current sentencing practice is not particularly helpful, but the Database shows 27 offences in the Supreme Court, for which 14 were sentences of full-time imprisonment which were imposed for up to six months imprisonment, except for R v French [2020] ACTSC 133, where Mr French had $21,335 in his possession which he had dealt with by appropriating to his partner's bank account. He was described as “high up on the supply chain with regard to drugs”.
Conditional liberty
114․When committing the offences, Mr Celeski was subject to a Good Behaviour Order which had been made as the sentence for his convictions for offences of dishonesty, unlawful possession of ammunition, obstructing a Territory official and possession of a drug and was sentenced to a term of imprisonment, which was also suspended. On conviction for the current offences, that Good Behaviour Order will be breached.
115․This situation has two consequences, as set out in R v Matthews at [35]-[40]. The first is the breach of the privilege of being in the community that the offences constitute and which must be reflected appropriately in the sentence to be imposed, making it more severe. The second is the response to the breach of the Order.
116․That breach, then, has to be addressed. Given that the breach is constituted by further offending for a Good Behaviour Order made when sentences of imprisonment were suspended, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) requires that the Good Behaviour Order be cancelled, even though it has expired, and the sentence originally imposed and suspended must be imposed or Mr Celeski be resentenced for those offences.
117․The approach to this is that there is no presumption in favour of imposing the sentence that has been originally imposed: Guy v Anderson & Telford [2013] ACTSC 5 at [83]. The Court has, as confirmed in Gyory v The Queen [2012] ACTCA 28 at [9], a discretion, but it must be exercised judicially and it must not bring into disrepute the power to suspend into disrepute into disrepute a sentence and release an otherwise imprisoned offender into the community with a Good Behaviour Order. See some of the considerations set out in R v Kelly (No 2) [2021] ACTSC 253. No submissions were made that any resentencing should proceed, rather than the imposition of the sentence that was suspended.
118․Mr Celeski had been subject to the Good Behaviour Order since 29 September 2020 and the offences were committed on 5 February 2022. He was, however, on 24 August 2021, convicted of sentences in the Queanbeyan Local Court of offences committed on 11 June 2021 and sentenced to eight months imprisonment with a two-month non parole period.
119․The agreed statement of facts summarised the offences as follows:
In the early morning of 19 November 2015, the offender, in the company of Phillip Avis, the co-offender, attended the Masters Home Improvement store in Majura Park. While at this location the offender spraypainted a closed-circuit television security camera (CCTV camera) belonging to the Masters Home Improvement store.
The offender and the co offender then removed a Bosch electric oven from the loading dock area of the store and attempted to flee the area with this property, but they were ultimately forced to abandon the oven in a grassed area near the store.
Later, police were contacted and searched for Mr Celeski and Mr Avis, finding them and following them and indicating them to stop. Finally, the truck in which they were travelling came to a stop and Mr Celeski fled from the truck. Police told him to stop and he did not do so. He was, however, intercepted and had to be sprayed with capsicum spray. When searched, he was in possession of a bag of ammunition.
120․Further, the Agreed Statement of Facts says:
On 22 January 2016, the offender entered an underground carpark of an apartment complex in Harrison and then broke into a grey colour Alfa Romeo car belonging to Clinton Harris. The offender damaged some panels around the ignition switch of this vehicle and covered the inside of this vehicle with bleach.
Mr Celeski hid in the Alfa Romeo when police arrived, having been alerted by Mr Harris. When he emerged, police took hold of his arm and he tensed his arm and clenched his fist. He then struggled with the police officers.
121․The Agreed Statement of Facts continues:
Later on the same day, the offender was in the driver's seat of a white Holden Maloo utility which had been stolen from Nicholas Dahl on 27 December 2015.
The vehicle was parked in an underground carpark, and when police recovered it they took a backpack on which Mr Celeski fingerprints were on it and where two clipseal bags were found in it which contained methamphetamine.
122․The sentences were as follows:
(1)For the offence of attempted theft, five months' imprisonment, which has been served in presentence custody and was not suspended or included in the Good Behaviour Order so need not be considered further.
(2)For the offence of burglary, 12 months imprisonment. For the offence of damaging property, eight months imprisonment.
(3)For the offence of dishonestly riding in a motor vehicle without the owner's consent, six months imprisonment.
(4)For the offence of theft, four months imprisonment.
(5)For the offence of trespass, a recognizance release order for three months was made until 28 December 2020, and the conviction for these offences does not breach that order so it is not needed to be taken into account further.
(6)For the first offence of obstructing a Territory official, two months imprisonment.
(7)For the unauthorised possession of ammunition, a Good Behaviour Order for three months to 28 December 2020, which again the conviction for these offences does not breach and need not be considered further.
(8)For the second offence of obstructing a Territory official, two months imprisonment.
(9)For the first offence of possession of a drug of dependence, two months imprisonment.
(10)The convictions for these offences will need to be confirmed and the sentences then reimposed.
Consideration
123․Taking all these matters into account, a sentence must now be fashioned by synthesising the factors that the facts show are relevant to be considered and then considering them to reach that synthesis. In order to do so and thus create a sentence that is just and adequate, it is important to have a clear view of the purposes for which the sentence is to be imposed. In this jurisdiction, this is helpfully identified in s 7 of the Sentencing Act.
124․Thus, the seriousness of the offending, both from the various maximum penalties and the seriousness of the actual offences as committed, shows that a degree of punishment must be included in the sentence. That will also denounce the offending and thereby help to achieve the role of the criminal law to make clear the line between acceptable and unacceptable conduct in any civilised community. The punishment will likely denounce the conduct of Mr Celeski.
125․Further, the sentence will need to show to others, who may be inclined to commit such crimes, that they should not do so and thus be deterred from such conduct. A sentence should recognise the harm done to victims. While it is not correct to say that there are no victims from drug crimes, they are not the same as, for example, the victims of crimes of dishonesty or personal violence.
126․There are few identified victims. In some ways, other drug users whose lives may be seriously harmed by drug use are the victims of drug trafficking such as conducted by Mr Celeski, though rarely are they identified.
127․Similarly, those who might commit crimes and dishonestly gain funds to buy drugs from people like Mr Celeski cause harm to the victims of their dishonesty. Thus, there are serious consequences, but not to persons able to be identified usually when sentencing a drug offender but whose harm must be recognised. There is also harm to the families and friends of drug users, not least in the distress their conduct of the offending causes, and as clearly has happened to Mr Celeski's former wife and children and, indeed, to his parents.
128․In this way the society must be protected by having its members kept safe. The possession of prohibited firearms risks that safety, as does the effects of drug use. Similarly, the accumulation of proceeds of crime increases the motivation to, and the distortions caused by, crime and these effects also serve to undermine the safety of the community and reduce its protection. These factors must also be represented in the sentence.
129․These will also hold an offender accountable. Mr Celeski must see from the sentence that he bears full responsibility for the offending and accept it. He has, however, acknowledged that his actions may have harmed others and says that he is sorry for this. That, with his ultimate pleas of guilty, shows a level of remorse.
130․Nevertheless, there is always a role for consideration of rehabilitation. This is clear from the advantage to the community from the rehabilitation of an offender. It ultimately is the surest way to achieve the protection of society and stop further offending: see Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 573; 32 and R v Blaskovic [1999] FCA 1306 at [26]. Nevertheless, the Crown appropriately pointed out that, so far, despite all the advantages and all the opportunities he has had, Mr Celeski continues to offend. Nevertheless, the benefit of success in rehabilitation is so great and so valuable that it cannot be ignored, though, of course, there must be a rational reason for further attempts: Saga v Reid [2010] ACTSC 59 at [89].
131․An important matter not yet mentioned is that Mr Celeski pleaded guilty. This is a fact that must be considered: see s 33(1)(j) of the Sentencing Act. Where appropriate, a discount of the sentence must be given. While that is always discretionary and the level of the discount is in part dependent on the strength of the case facing the offender (s 35(4) of the Sentencing Act), the discretion must be exercised judicially.
132․Here, Mr Celeski initially pleaded not guilty to most of the offences. There were, as the Court was informed, negotiations between the parties and Mr Celeski, then entered a plea of guilty. That did not, however, end up in a rolled-up plea, but additional charges: see R v Toumo'ua [2017] ACTCA 9 at [35]. It was before the matters had been allocated a hearing date for Mr Celeski or he was committed to the Supreme Court for trial or sentence.
133․The case against him was strong, perhaps very strong, but not overwhelming, especially as to some of the offences. Further, the offences concerning the declared substances were the subject of pleas of guilty when Mr Celeski was first charged with them, that is, at the very earliest date. A significant discount for the utilitarian value is appropriate for them.
134․The reason Mr Celeski took drugs is relevant. The age (Douglas and Albone v The Queen (1995) 56 FCR 465 at 470) and the circumstances in which he began drug use (Talbot v The Queen (1992) 59 A Crim R 383 at 389) are relevant to the culpability of an offender for offences committed substantially contributed to by his or her drug offending. See also R v Henry [1999] NSWCCA 111; 44 NSWLR 346 at 397-8; [273]. Here, his anxiety and depression were a key element in the escalation of his drug use. This moderates his culpability.
135․Accordingly, a just and adequate sentence must be determined. In doing so, the following matters have been considered as set out in these remarks: the nature and circumstances of the offences; that they are part of a course of conduct, all occurring in the one circumstance; Mr Celeski's personal circumstances, including the age at which and the reason Mr Celeski began and continued using drugs; the effect of the potential and actual harm to victims of the offences; Mr Celeski's substantial dependence on drugs, including at the time of his first use and becoming dependent; that Mr Celeski is solely responsible for the offences; his plea of guilty and remorse; his acceptance of the Statement of Facts; that he was affected by drugs at the time of the offence; and current sentencing practice.
136․Having considered these matters and the alternatives available for sentence, it is clear that no other sentence than a sentence of imprisonment is suitable for the offending: see s 10 of the Sentencing Act.
137․There are, of course, seven offences for which a sentence must be imposed, all but one punishable by a sentence of imprisonment. A sentence must be imposed for each one of them, and each must be just and adequate for the circumstances of the specific offence in the light of all the matters required to be considered. That has been done.
138․Nevertheless, it is important to consider, as has been done, the total culpability of the offences as committed by Mr Celeski. That will ensure that he is not punished twice for the same culpability of criminal conduct such as in relation to the possession of the firearm and the ammunition and the possession and supply of the declared substances. Thus, some sentences will require to be concurrent, or partially concurrent, because of that or because, as here, they are part of the same course of conduct.
139․Still, the total length of the sentence must be and has been considered to ensure that the important sentencing principle of totality has been respected and that the total sentence adequately addresses the total criminality of the offences, but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and maintain the hope that Mr Celeski has to take an effective part in the community when he is released, including, especially, as a role model for his children.
140․This may result in what some see as a lenient sentence because of the degree of concurrency, but, while the total criminality constituted by all of the offences is important, so is the real protection of the community, his personal circumstances and his growing awareness of the need for rehabilitation. This requires a proportionate sentence to his culpability from all the relevant factors, which includes his subjective circumstances and the value of reform for the community.
[His Honour then spoke directly to the offender]
141․Mr Celeski, please stand.
(1)I convict you of possessing a prohibited firearm (CAN 1384/2022). I sentence you to nine months' imprisonment to commence on 5 February 2022 and end on 4 November 2024. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
(2)I sentence you to trafficking in a controlled drug, namely, methamphetamine (CAN 1387/2022). I sentence you to 11 months imprisonment to commence on 5 November 2022 and expire on 4 October 2023. Had you not pleaded guilty, I would have sentenced you to 14 months imprisonment.
(3)I convict you of possessing the proceeds of crime (CAN 1392/2022). I sentence you to seven months imprisonment to commence on 5 August 2023 and expire on 4 March 2024. That is cumulative as to five months on the sentence for trafficking in a controlled drug. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
(4)I convict you of trafficking in heroin (CAN 3327/2022). I sentence you to 12 months imprisonment, commencing on 5 January 2024 and expiring on 4 January 2025. That is to be cumulative as to 10 months on the sentence for possessing proceeds of crime. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
(5)I convict you of supplying a declared substance (CAN 6749/2022). I sentence you to nine months imprisonment to commence on 5 November 2024 and expire on 4 August 2025. That is to be cumulative as to seven months on the sentence for trafficking in a controlled drug of heroin. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
(6)I convict you of possessing ammunition (CAN 1385/2022) and I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for two months from 5 November 2026 until 4 January 2027.
(7)I convict you of possessing a declared substance (CAN 6748/2022). I sentence you to two months imprisonment to commence on 5 July 2025 and end on 4 September 2025. That is to be cumulative as to one month on the sentence for supplying a declared substance. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
(8)I cancel the Good Behaviour Order made on 29 September 2020.
(9)I confirm the conviction for burglary (CC 2016/1268) and I impose the sentence of 12 months imprisonment to commence on 5 September 2025 and end on 4 September 2026. That is to be wholly cumulative on the sentence for possessing a declared substance.
(10)I confirm the conviction for damaging property (CC 2016/1271) and I impose the sentence of eight months imprisonment to commence on 5 January 2026 and end on 4 September 2026. That is to be wholly concurrent with the sentence for burglary.
(11)I confirm the conviction for dishonestly riding in a motor vehicle (CC 2016/1994) and I impose the of six months imprisonment to commence on 5 March 2026 and end on 4 September 2026. That is to be wholly concurrent on the sentence for damaging property.
(12)I confirm the conviction for theft (CC 2016/1267) and I impose the sentence of four months imprisonment to commence on 5 May 2026 and end on 4 September 2026. That is to also be wholly concurrent on the sentence for dishonestly riding in a motor vehicle without consent.
(13)I confirm the conviction for obstructing a Territory official (CC 2016/551) and I impose the sentence of two months imprisonment to commence on 5 August 2026 and end on 4 October 2026, which is to be cumulative as to one month on the sentence for burglary.
(14)I confirm the conviction for obstructing a Territory official (CC 2016/1270) and I impose the sentence of two months imprisonment to commence on 5 September 2026 and end on 4 November 2026. That is to be cumulative as to one month on the first sentence for the offence of obstructing a Territory official.
(15)I confirm the conviction for possessing a drug of dependence (CC 2016/1997) and I impose the sentence of two months imprisonment to commence on 5 September 2026 and end on 4 November 2026. That is to be wholly concurrent on the sentence for obstructing a Territory official.
(16)I confirm the conviction for the possessing a drug of dependence (CC 2016/1998) and I impose the sentence of to two months imprisonment to commence on 5 September 2026 and end on 4 November 2026. That is to be wholly concurrent on the first sentence for possessing a drug of dependence.
142․You may be seated.
143․Since Mr Celeski has been sentenced to a total period of 57 months imprisonment, of which four months and 15 days have been served, a decision must be made on how the balance must be served. Mr Celeski has been found unsuitable for an Intensive Correction Order. The Court can nevertheless make such an order, but must record reasons for not accepting the recommendation: s 78(5) and (6) of the Sentencing Act.
144․Mr Celeski, however, has asked that he be permitted to serve his sentence by way of a Treatment Order. It is appropriate to consider that first.
145․There are two stages for this: whether he is eligible and whether he is suitable and, indeed, whether there are suitable arrangements for administering a Treatment Order.
146․Eligibility for a Treatment Order is set out in ss 12A and 80S of the Sentencing Act. The eligibility requirement in s 80S is that he be found suitable for a Treatment Order and that there are suitable arrangements for its administration. Thus, it is appropriate to deal first with the issues in s 12A.
147․Mr Celeski has pleaded guilty to all the offences for which he is being sentenced, all of which are eligible offences within the meaning of s 12A of the Sentencing Act, save for the offence of possessing ammunition, for which a Good Behaviour Order has been imposed. The sentence for that offence cannot be part of any Treatment Order, but, since a Good Behaviour Order has been made, that does not interfere with his eligibility as he is not thereby subject to a sentencing order within the meaning of s 12A of the Sentencing Act.
148․He has been sentenced to 12 months imprisonment for the offence of trafficking in a prohibited drug, namely, heroin and, as the primary offence, it is the minimum period of imprisonment for which it must be to render him eligible for a Treatment Order.
149․The sentence for the offence of possessing a prohibited firearm has been served in pre-sentence custody. It would, therefore, ordinarily not be included as an associated offence and will not be here. Leaving that sentence aside, the total term of imprisonment is four years, which is within the maximum for which the sentence may be imposed in order that a Treatment Order can be made.
150․The Suitability Assessment describes his long and problematic drug use and Alcohol and Drug Services have assessed him as likely to have a severe substance use disorder, an unchallenged assessment. He is dependent on illicit drugs, specifically heroin and methamphetamine. Further, given the nature and circumstances of the offending, it is clear that his drug dependence has been a substantial contributor to the commission of the offences by him.
151․Mr Celeski has lived in Queanbeyan, New South Wales, but has now been provided with a property in Canberra leased by his parents, where he proposes to live. It is satisfactorily shown that he will be resident in the ACT for the next four years.
152․He has also consented to the making of a Treatment Order. That consent is confirmed in the form that he has signed, and the Suitability Assessments also confirm that he has had sufficient information to make an informed choice about whether to proceed with a Treatment Order, including having an opportunity to ask any questions that he may have about the order and that all the questions have been answered. He appeared to understand the answers.
153․Accordingly, subject to suitability, he is eligible for a Treatment Order by way of which he may serve the balance of his sentence. The Suitability Assessments are comprehensive and have been professionally, carefully and insightfully prepared. The Report prepared by the Alcohol and Drug Service first required confirmation that the proposed residence where he will live is suitable and that has been assessed by ACT Corrective Services. It has been assessed as suitable and accordingly Alcohol and Drug Services recommend that he is suitable to have a Treatment Order made.
154․The recommendation is that he serve the order in the community. A Case Plan has been prepared on that basis and it appears satisfactory. ACT Corrective Services, however, have raised concerns in the Suitability Assessment its officer prepared and recommends that he is unsuitable for a Treatment Order to be made for him to serve the sentence imposed.
155․The first issue raised by ACT Corrective Services is that it is considered that Mr Celeski should serve the initial part of the order in a drug residential rehabilitation facility. This is not the present recommendation from Alcohol and Drug Services. It is not accepted at this stage that is necessary. It is noted that, while he has continued to offend, he has had periods of abstinence and it may be expected that, with the intensive therapeutic support available in the community, he may be able to complete the requirements of a Treatment Order successfully in the community.
156․The second issue is with his criminal history. ACT Corrective Services opine that his history of violent offending, his continued offending despite some opportunities for rehabilitation and his continued breach of court orders, including those to be served in the community, render him unsuitable. He has, as they note, a history of not merely breaching community-based Court orders but by reoffending, including recently. This makes a further community-based order such as a Treatment Order to be served in the community likely to fail.
157․This is a reasonable concern that must be taken seriously. It has to be acknowledged that it is a matter of seriousness. Thus, even if there are answers to these issues there is no guarantee that he will not continue further offending. Nevertheless, it must be accepted that custodial sentences have by punishment failed to deter him, or rehabilitate him, and, as is suggested in R v Antonovic (No 3) [2021] ACTSC 338 at [118], simply re-incarcerating him again and again and again seems unlikely to produce a different or better result.
158․It must also be acknowledged that while he has had in the past some of the support that parole officers can provide, it is not the intensive therapeutic intervention combined with the judicial supervision provided under a Treatment Order that research suggests, and indeed experience with the Drug and Alcohol Sentencing List also suggests, can actually work. To rephrase R v EL [2016] ACTSC 241 at [43], it would be curious if Treatment Orders were only available to people who really do not need them. That is perhaps an unfair characterisation of the concern expressed by ACT Corrective Services, which, as noted, is legitimately based, and must be carefully considered.
159․That Mr Celeski has employment from a seemingly sympathetic employer, who knows him, is a good sign. It is accepted, as the Crown emphasised, that many of the protective factors such as this one have been previously available but have not prevented relapse. It may also be noted that Mr Celeski is coming to an age when many of those dependent on drugs do recognise the futility and unacceptability of the life that such dependency leads them to live and the better life which they miss out, such as the opportunity to be part of the growing up experience of their children.
160․While, as noted, there are no guarantees, there are signs that the making of a Treatment Order may be appropriate at this stage. They are Mr Celeski's age; the absence of his children with whom he has had an opportunity to re-engage and which he will have to have soon before it becomes too difficult; his ability in the past to have periods of abstinence; his ability in the past to remain crime free for some years; his reasonably apparent abstinence for some time while in custody, though he had drugs in possession, but only once on 13 June 2022 (and, noting two other in-custody breaches, on 26 June 2022, knowledge of access to a mobile phone and on 1 August 2022, fighting); his recognition, as noted in the Pre-Sentence Report, that he needs proper treatment and further intervention by drug counsellors and SMART Recovery; his current participation in opioid maintenance therapy; and his access to employment.
161․It is to be noted that the Case Plan requires attention to his mental health, suggested to be provided through his General Practitioner, and that it includes drug counselling and undertaking SMART Recovery programs. It does, however, provide for treatment in the community, which Alcohol and Drug Services considered, in the Suitability Assessment, to be appropriate.
162․A further concern expressed by ACT Corrective Services and noted above was that his drug dependence may be better addressed, at least initially, by him engaging in residential drug rehabilitation. It is difficult to reconcile the differences between the views of ACT Corrective Services and Alcohol and Drug Services on this issue without hearing much more evidence. In the circumstances, it appears that, at some risk to Mr Celeski repeating the failures of his response to community based orders, namely, by committing further offences sometime after his release, it is not inappropriate to proceed in the currently proposed way, given the situation as described above, but if it appears during the initial intensive period of the Treatment Order, including regular judicial supervision, that the risk is escalating, the Treatment Order can be amended to provide for such residential drug rehabilitation.
163․There are appropriate arrangements under the Case Plan for the administration of the Treatment Order and which are practicable.
164․Accordingly, while there are areas of legitimate concern, it is considered that Mr Celeski is suitable for the making of a Treatment Order and by which his order may be served. There are no reasons known to the Court, as set out in table 46K of the Sentencing Act, that would make Mr Celeski unsuitable and there is no reason why the sentence of imprisonment should not be suspended so that the Treatment Order may be served.
165․That there are 14 days of pre-sentence custody which he has served, apart from the earlier sentence, which is not part of the Treatment Order, but the fact that, in that sense, the suspension of the imprisonment is only a partial suspension from the date of imposition of the sentence is not a bar to the making of a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245.
166․Accordingly, a Treatment Order will be made.
[His Honour spoke again directly to the offender]
167․Mr Celeski, please stand.
(17)I direct that a Treatment Order be made for three years, 11 months and 17 days from today, 18 November 2022, and ending on 4 November 2026 in respect to the primary offence of trafficking a controlled drug (CAN 3327/2022), namely, heroin, of which you have been convicted and which you have been sentenced to 12 months' imprisonment.
(18)That order is extended to the offences of trafficking in a controlled drug, namely, methamphetamine (CAN 1387/2022), possessing the proceeds of crime (CAN 1392/2022), supplying a declared substance (CAN 6749/2022), possessing a declared substance (CAN 6748/2022), burglary (CC 2016/1268), damaging property (CC 2016/1271), dishonestly riding in a motor vehicle (CC 2016/1994), theft (CC 2016/1267), obstructing a Territory official (CC 2016/551), obstructing a Territory official (CC 2016/1270), possessing a drug of dependence (CC 2016/1997) and possessing a drug of dependence (CC 2016/1998) of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(19)It is noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(20)The custodial part of the Order for the primary and associated offences is now suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today until 4 November 2026.
(21)The treatment and supervision part of the Drug and Alcohol Treatment Order be for two years from today, 18 November 2022 to 17 November 2024.
(22)Under s 80ZA of the Crimes (Sentencing) Act2005 (ACT) you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, that is, 18 November 2024, until the end of the total sentence, 4 November 2026, with a probation condition that you accept supervision of the Commissioner of ACT Corrective Services, or his delegate, for the period of the undertaking, or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(23)For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are imposed;
(b) you undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team and obey all reasonable directions of any member of the team about where you reside, with whom you associate and your attendance from time to time;
(c) you not return a positive test sample under alcohol and drug testing; and
(d) you comply with any directions of the court from time to time about attendance at court, in person or by electronic means.
(24)I direct you to appear in Court next Friday, 25 November 2022, at 11.30 am.
(25)I direct you to attend the court registry before you leave the court precincts to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of this order and the Good Behaviour Order for the possession of ammunition.
168․I am required to explain the sentence to you, but you have been around the Courts long enough probably to understand most of what I have said, besides which most of it is about you. What I have said is that these are serious offences. They do impact on the community. It is not just you giving some mates some drugs. That actually has a flow-on effect to all sorts of people, and you have seen that personally in the relationship between your wife and your children and yourself.
169․You are coming to an age where you need to address this drug dependence which has led you to where you are and you have expressed the wish to do so. If you are serious about that, you have come to the right place. This Court will support you, as long as you comply with the rules of the Court. If you would prefer not to do that, then you can go back to jail, and I do not say that to threaten you, but you need to understand the circumstances of it, and they are the alternatives that you have got.
170․There are those who have said that you are just going to commit further offences. That is what you have done, particularly in the recent past. You were granted parole and what did you do? You went out and committed further offences. It is a risk to the community. I believe at this stage that it is worth taking that risk because of the benefits to the community if we stop you committing offences. You have shown that you can be a productive member of the community. If you can take this opportunity, which is a privilege, and run with it, then you will be better off and the community will be better off, but you must run with it. It is you who must do it. I cannot do it for you.
171․I will encourage, I will criticise, I will sanction you if you do not comply, I may have to put you back in prison, but there will be experienced, professional people who can support you. I say again they cannot do it for you, you have to do it. But if you try, if you are genuine, they will assist you and they can help you to do that. It is going to be long. I have said two years. That is a long time to be under this regime, but it is the way to do it. You need to take this opportunity and work hard with it.
172․There are a few things that are really important. The first one that I mention to everyone is honesty. Drug traffickers and users learn to be completely dishonest. You know, they are like fraudsters. Anything to get the next hit. You have got to start being honest and that means being honest with us. Tell it like it is. If you do not, it will be more serious. If you do, yes, we may have to sanction you, even send you to prison, but it will be less serious because we want you to be honest.
173․Being honest will actually help you along the way. The evidence is clear; honesty will help you to rehabilitate. But you also must be honest with yourself. It is very easy to say, 'I'm not that bad.' Acknowledging what you have done that is bad does not make you bad, but it makes you clear-eyed to understand that what you have done is bad and you are not trying to minimise it, or get away with it, or live with yourself. You can live with yourself and say, 'This is bad,' and then you say, 'I'm not going to do it again,' and that is what this process is about. That is what you are going to do.
174․This is how you are going to move back to being a good builder, get your licence. We are building right, left and centre around Canberra. We need people like you. Get your kids back. You know, share them with your wife, re-engage with her. You will not, you know, re-partner, but you are going to have a good, respectful relationship with her, and what a wonderful experience it is to be a father of children, see them growing up, help them, be a role model. You cannot be a role model when you are running round with guns, when you are running round with making other people have terrible lives by feeding them drugs and in custody.
175․The second thing is commit yourself to it. It is going to be hard, but commit yourself to it and do not run away. We have been very successful in everyone who has run away coming back and we have then sent them back to jail. We do not want to do that to you. Face up to it. Come and tell me about it. As I say, we might have to punish you, but we are committed to have you succeed, and that's the thanks that we want, to have you succeed and be a good member of the community.
176․So up to you. You do it. You have got the opportunity, grab it with both hands, do the best you can. You will come and see me weekly for a few months, right, and I will tell you what it is like. I will congratulate you if you are doing well and I will sanction you if you are doing badly. You will get, if you have not already, a letter setting out all your obligations. Make sure you understand them. Do not get sanctioned because you didn't understand. If you don't do things right, you get sanctioned, all right.
177․I hope you take this opportunity. It is about time you did. Grab it with both hands, and all I can say is good luck.
| I certify that the preceding one hundred and seventy-seven [177] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: |
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