R v Celeski (No 3); Director of Public Prosecutions v Celeski
[2024] ACTSC 144
•9 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Celeski (No 3); DPP v Celeski |
Citation: | [2024] ACTSC 144 |
Hearing Date: | 18 April 2024, 2 May 2024 |
Decision Date: | 9 May 2024 |
Before: | Hopkins AJ |
Decision: | See [89]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – reoffending – treatment and supervision continued while on bail – bail revoked after discharge from residential facility – s 80ZD imposition or resentence – 80ZH review – s 36 assistance to law enforcement authorities – sentence of imprisonment under the custodial part imposed – rehabilitation through a parole order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 36, 37, 56, 57, 63, 80ZB, 80ZC, 80ZE, 80ZH |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 R v Cartwright (1989) 17 NSWLR 243 R v Celeski (No 2) [2022] ACTSC 393 R v Pham [2015] HCA 39; 256 CLR 550 Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 |
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 78, 79, 80, 81, 174, 175 of 2022 SCC 81, 82 of 2023 |
HOPKINS AJ:
Introduction
1․David Celeski, on 18 November 2022, you were sentenced to 4 years and 9 months imprisonment. Because of your dependency on illicit substances, which had substantially contributed to your offending, you were given the opportunity to serve what remained of that sentence, just under 4 years, by way of a Drug and Alcohol Treatment Order (Treatment Order). This was not your first opportunity to pursue your rehabilitation in the community.
2․Unfortunately, you almost immediately returned to illicit substance use and committed an offence of trafficking in methylamphetamine. Today, you are to be sentenced for that offence.
3․Your Treatment Order was cancelled on 18 January 2024. It is necessary for me to either impose the sentence of imprisonment that was suspended under the custodial part of the Treatment Order or resentence you.
4․I have determined that it is appropriate to impose the four-year sentence that was suspended, along with an additional year and a half for your fresh offence.
5․You will be sentenced to a total term of imprisonment of 5 years and 6 months, backdated to commence on 15 January 2023, and end on 14 July 2028. I will set a nonparole period of 2 years and 9 months, from 15 January 2023 to 14 October 2025. This nonparole period is 50 per cent of the total sentence.
6․I will now explain why this is the appropriate sentence.
The offences
7․You pleaded guilty to one offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine. This offence has a maximum penalty of 10 years imprisonment or a fine of $160,000, or both.
8․You have asked that additional offences be taken into account in the sentence imposed on you for trafficking in a controlled drug, which is the “principal offence”: s 56 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These offences are set out in a “List of Additional Offences” document signed by you and a delegate of the Director of Public Prosecutions.
9․At the sentencing hearing, I asked you whether you admitted guilt to the additional offences and wanted the Court to take these offences into account in relation to the principal offence. You confirmed your admission of guilt and your desire to have the offences taken into account: s 57 of the Sentencing Act.
10․You are not to be sentenced for these offences. Instead, the additional offences are to be weighed along with other matters taken into account for the purpose of sentence: R v Campbell [2010] ACTCA 20 at [50]. In your case, the objective seriousness of the additional offences, and their relationship to the primary offence, has resulted in an increased sentence being imposed for the primary offence.
11․The additional offences are:
1.unauthorised possession of a prohibited firearm (CC 2023/2175) contrary to
s 42(1) of the Firearms Act 1996 (ACT) (Firearms Act), which has a maximum penalty of imprisonment for 10 years;2.unauthorised possession of a prohibited weapon (CC 2023/4855) contrary to
s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act), which has a maximum penalty of imprisonment for 5 years; and3.possessing proceeds of crime (CC 2022/12554) contrary to s 114C of the Crimes Act 1900 (ACT), which has a maximum penalty of imprisonment for 2 years.
12․The facts of your offence, together with the additional offences to be taken into account, can be shortly stated.
13․On 18 November 2022, you were sentenced to a total period of imprisonment of 4 years and 9 months, with a little over 9 months of that sentence having already been served. A Treatment Order was made for 2 years from 18 November 2022, with the remaining custodial part of the sentence suspended until 4 November 2026. You were released into the community with the strict supervision and intensive support provided under the Treatment Order.
14․On 25 November 2022, you exchanged two eight balls of methylamphetamine (3.5 g each) for a shotgun, which is a prohibited firearm. On 26 November 2022, that shotgun was transported to your unit complex where you subsequently took possession of it
(CC 2023/2175).15․On 27 November 2022, police located the shotgun in a storage cage associated with your unit at the complex. The cage was secured with a padlock. Police seized the shotgun. They also seized an extendable baton, which is a prohibited weapon
(CC 2023/4855). You were not authorised to possess either of these items.16․No ammunition was found with the shotgun. Later tests found the shotgun to be in working order and capable of being fired, though the repeating functionality of the firearm was compromised.
17․On 2 December 2022, the suspension of the custodial part of the Treatment Order was provisionally cancelled as a consequence of your use of illicit drugs, and you were remanded in custody for seven days. You were released again under the Treatment Order on 9 December 2022.
18․Between 25 November 2022 and 24 December 2022, whilst you were in the community subject to your Treatment Order, you engaged in the sale, trade, and distribution of methylamphetamine as a mid-level dealer. You sold the drug to end users. You also sold the drug to people who on-sold it to others. This is the principal offence of trafficking in a controlled drug.
19․You sold the methylamphetamine in different amounts, from an eight ball (3.5 g), up to a number of ounces (approximately 28 g each). You charged from $5,000 to $5,500 per ounce. You also traded methylamphetamine on one occasion for the shotgun.
20․On 23 December 2022, at around 9.50pm, police entered a communal area of your unit complex, where they found you with another male. There was a haze in the room along with a strong chemical-burning smell consistent with illicit substance use.
21․You were in possession of a backpack which was later found to contain five bags of methylamphetamine with a total weight of 139.29 g, along with $8,290 in cash that was the proceeds of crime (CC 2022/12554). Also found in the backpack were three glass smoking pipes, a quantity of un-used clip seal bags, two sets of digital scales, and a mobile phone that had been used in trafficking the controlled drug.
Objective seriousness
22․An assessment of the objective seriousness of the trafficking offence requires consideration of a number of features: Bui v The Queen [2015] ACTCA 5 at [41] (Bui).
23․The role you played, the level at which you engaged in trafficking methylamphetamine, and the length of time in which you did so are all important. It was agreed that you were a “mid-level dealer” who sold to both end users, and others who on-sold the illicit substance. This does not place you at a specific level in the hierarchy of those involved in the drug trade, though it does mean you cannot be described as a “street level” dealer. You engaged in trafficking over the period of one month. This was not a case of deemed trafficking but actual trafficking.
24․Your motivation is also important. The amounts sold, the value of those amounts, and the $8,290 cash from the proceeds of sale found in your possession demonstrate that financial gain was a significant part of your motivation. However, it is also apparent that you were motivated by satisfying your own drug dependency. You were caught in a cycle of addiction, and perpetuating the cycle in the lives of others by trafficking in the drug to which you were addicted. You know, all too well, the impact your addiction has had on your life. This means you are also able to understand the harm you have caused to others through trafficking in methylamphetamine.
25․Finally, while “the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution”: Bui at [41]. The weight of the drug was around 139 g. This is just under 5 ounces, with a minimum value on figures set out in the agreed facts of approximately $25,000, though significantly more if broken into street level deals. There is no evidence of purity.
26․Though you are not being sentenced for the additional offences, it is still necessary to assess their objective seriousness in taking them into account.
27․You possessed a pump action shotgun that was capable of being fired. You possessed that weapon for a short period, less than 12 hours. There is no evidence as to the purpose of possession, except that it arose out of a trade for methylamphetamine. Whilst in your possession, it was kept in a locked storage cage. There is no evidence that ammunition was stored with the firearm. These factors inform the assessment of the danger or potential danger to the public associated with possession: see Mack v R [2009] NSWCCA 216 at [40]; R v Mitchell [2016] ACTSC 85 at [85]; R v McCallum [2020] ACTSC 15 at [25]-[26].
28․You also possessed an extendable baton. It too was found in the locked storage cage. This is a prohibited weapon. “The range of prohibited weapons extends to bombs, missiles, flame throwers and grenades. A baton is considerably less serious in nature in terms of the danger it inherently posed”: DPP v Stewart [2023] ACTSC 252 at [55]. That said, significant harm can be caused with a baton, and the risk of harm is increased when associated with the illicit drug trade.
29․Finally, in relation to the possession of cash proceeds of crime, $8,290 is not an insignificant amount. Its possession is an indication of the nature and extent of the trafficking you were engaged in.
Conditional liberty
30․A significant aggravating feature of your offending was the fact that it commenced one week after you were first released on your Treatment Order. This breach of conditional liberty was a serious betrayal of the trust that was placed in you by the Court, and of the opportunity you were given to pursue your rehabilitation: DPP v Deighan (No 2) [2023] ACTSC 295 at [93]; R v Tran [1999] NSWCCA 109 at [15].
Plea of guilty, remorse and acceptance of responsibility
31․You pleaded guilty at a criminal case conference after successful plea negotiations. This means that the community was spared the time and cost of a trial. It also means that witnesses were not required to give evidence. In those circumstances, I consider it appropriate to reduce your sentence by 20 per cent on account of your plea: ss 35 and 37 of the Sentencing Act; Blundell v The Queen [2019] ACTCA 34 at [7]-[18].
32․I was not pointed to any specific evidence of remorse. That said, your plea of guilty is an indication that you have accepted responsibility.
Assistance to authorities
33․Your lawyer submitted that because you provided assistance to law enforcement authorities, your sentence should be reduced. The reduction is intended to reward those who provide assistance, and encourage others to provide assistance in order to receive a similar benefit: s 36 of the Sentencing Act; Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at 60-63 [58]-[71] (Will). This “reflects the strong public interest in breaking the criminal culture of silence and encouraging persons who have committed crimes to assist police”: DPP v Taylor [2023] ACTSC 39 at [35] (DPP v Taylor); see also, Will at 63 [71]; R v Cartwright (1989) 17 NSWLR 243 at 253 (Cartwright). The reduction is also intended to take account of the risk of reprisal and threat to safety that may result from breaking the culture of silence: York v The Queen [2005] HCA 60; 225 CLR 466 at
468 [3].34․In determining whether to impose a lesser sentence, including a shorter nonparole period, for the assistance you have provided to authorities, I am required to assess the degree of assistance that you provided and have promised to provide: s 36(2) of the Sentencing Act. I am also required to consider the matters set out in s 36(3) of the Sentencing Act; see also, Cartwright at 252-3; The Queen v Ngata [2015] ACTSC 356 at [57] (Ngata).
35․The assistance provided was constituted by [redacted]
[Paragraphs 36-37 are redacted]
36․The prosecutor said that the risk to your safety was speculative. She agreed that you had provided and agreed to provide some degree of assistance, but that this was limited. For this reason, she submitted that the reduction in your sentence should be limited. She compared the assistance you provided to that given by the offender in R v Kinsela [2021] ACTSC 265. In that case, the offender undertook to participate in a record of interview in relation to the co-offender and to give evidence without the compulsion of a subpoena. The offender’s sentence was reduced by five per cent on account of the assistance given. The prosecutor also submitted that in your case the conviction of the alleged offender facing trial does not depend on your evidence alone.
37․Your lawyer pointed out that because you [redacted], the assistance you have given is not entirely speculative. He accepted that it was less than the assistance given in a number of other cases considered by the Court: see, e.g., Ngata at [60]-[61]; DPP v Taylor at [37]. However, your lawyer submitted that there were questions relating to the credibility of another key witness in the upcoming trial, making your evidence more important. He also made clear that because you [redacted], this would be (and perhaps already has been) brought to the attention of the alleged offender. He said, and I accept, that you may become a target of reprisal. Even if that is not so, I have no doubt you will fear reprisal. This fear will be with you during your time in prison. It will make that time harder for you. In these circumstances, your lawyer said that a reduction of 5 per cent was not a sufficient reward or encouragement to others. I agree. I will reduce your sentence for your plea of guilty and assistance to authorities by a total of 30 per cent.
Criminal history
38․You have a lengthy criminal record, though it only commenced once you turned 18. There are a significant number of offences on that record relating to drugs, drug use, violence, weapons, and ammunition. This demonstrates that your offending on this occasion is not an aberration. Instead, it is a continuation of a pattern of offending. It also demonstrates the extent to which dependence on illicit substances, and involvement in associated offending, has shaped your life.
Subjective circumstances
39․Mr Celeski, you are now 42. Your personal history and circumstances were set in the decision of Refshauge AJ, when he sentenced you on 18 November 2022: R v Celeski (No 2) [2022] ACTSC 393 at [71]-[91].
40․In summary, you were born in Macedonia, moving with your parents and two younger sisters to Australia when you were five. Your family was loving and supportive. As a consequence, your childhood was largely positive, setting a strong foundation for your life.
41․You had some early experiences of racism and bullying at school because you began with limited knowledge of English. Despite this, you did well in school, achieving success and enjoying your studies and sporting activities.
42․As a teenager, you spent three years back in Macedonia with your family, reconnecting with your culture of birth, making friends, and enjoying the freedom of the lifestyle you lived there.
43․Following this, you returned with your family to Australia to complete your studies. This transition was not easy for you. It was at this time that you first experienced anxiety and depression. You graduated year 12 at Canberra College and gained admission into an architecture degree at the University of Canberra. Mental health challenges led to you discontinuing your studies after a year to work with your father in renovating homes.
44․You have a long history of employment, beginning at age 13 when you worked for a local supermarket and then in your family’s cleaning business. You have worked primarily in construction roles and have part-completed your builder’s licence. You have a strong work ethic, having been described as “a good worker who was reliable and easily managed”.
45․You commenced a relationship with the mother of your four children when you were 19, marrying in 2007. This relationship has ended. Your children are now all in their teens. Your relationships with them have also been damaged because of your drug dependency and criminal offending, though you have done what you can to maintain contact even when you have been in prison.
46․You had some experience with illicit substances during your teenage years, but not to an extent that your life was derailed. You first used methylamphetamine at age 19 and found that it gave you energy and made you “feel great”. This use did not immediately develop into a dependency, with you being able to use for periods then desist and maintain abstinence for periods. At the age of around 26 you began using methylamphetamine more regularly, including on a daily basis from time to time. Your motivation was to address feelings of anxiety and poor self-esteem.
47․In 2015, when you were in your early thirties, your daughter was diagnosed with autism. You found yourself unable to cope. You experienced a major relapse. Your methylamphetamine use became “extreme”, with daily use of approximately $1,500 worth of the substance. You committed crimes to fund your habit. Your account of the onset of severe substance use dependency corresponds with a significant escalation in the nature and seriousness of your criminal offending, as recorded in your criminal history.
48․You have spent significant periods in prison in both New South Wales and the Australian Capital Territory. You have engaged in rehabilitation programs whilst in prison, where you have demonstrated significant insight. And yet, upon your return to the community, you continued to relapse and reoffend, despite the significant supports that have been provided to you. Most striking was your almost immediate return to illicit substance use and offending upon being given the opportunity of a Treatment Order on 18 November 2022.
49․Between September and December 2023, you were given a further opportunity to demonstrate that you could address your dependency in the community. Unfortunately, this too was unsuccessful, though you did not reoffend.
50․The pattern of relapse and reoffending has continued despite you having had the ongoing love and support of your parents, as well as the capacity to draw upon your cultural and religious connections, your positive childhood, and your work history. It has continued despite the motivation provided by the potential for you to restore your relationships with your children, and the apparent insight you have demonstrated into your dependency on illicit substances. For this reason, the prosecutor submitted that your prosects of rehabilitation are poor. She submitted that little has changed to give the Court confidence that your future will be any different to your past.
51․Your lawyer accepted that your history of relapse and reoffending was such that it was difficult for the Court to have confidence in your prospects of rehabilitation. In effect, he accepted that your prosects of rehabilitation are guarded. Despite this, he pointed to evidence that gives cause for hope. This evidence comes in a number of forms.
52․First, there is a letter you wrote to the Court in January 2024, in which you disclosed deep, ongoing, and personal vulnerabilities that you had not previously had the courage to reveal. I have read this letter. I will not refer to its contents. I accept that you have demonstrated honesty and strength in facing your fear. This is a genuine foundation for change.
53․Second, there is the commitment to your rehabilitation that you have shown through exemplary engagement in the prison based Karralika Therapeutic Community rehabilitation program that you commenced on 10 January 2024, and completed in May 2024. The quality of your engagement and the extent of your achievement is demonstrated by the many certificates you achieved along the way. Of your engagement, the Justice Services Case Manager, Ms Blazeski, wrote on 2 April 2024:
Mr. Celeski is engaging in all aspects of the Solaris Therapeutic Community and has displayed a high level of progress towards behaviour change in relation to his identified treatment issues and presents as pro-social and actively committed to recovery. Mr. Celeski displays significant strengths in self-awareness, emotional regulation, challenging his core values and beliefs, and authenticity to himself and in his implementation of boundary setting. In addition, Mr. Celeski has been commended for his community support mindset and the role he plays in maintaining cohesion and awareness within his community. Mr. Celeski consistently brings a positive and reflective perspective to his case management sessions and demonstrates learning and a high standard of engagement in the group space.
54․Third, and importantly, there is the choice you made to provide assistance to law enforcement authorities, breaking the criminal culture of silence and accepting the risk of reprisal. This too demonstrates courage. It also demonstrates a genuine desire to make a break with your past, and the pattern of relapse and reoffending which arises, in significant part, through association with others caught in that cycle of addiction or profiting from it.
55․Finally, your lawyer submitted that a lengthy prison sentence might lead to you being institutionalised and rendered incapable of rehabilitating. In effect, he said that such a sentence would risk extinguishing hope, to your detriment, and to the detriment of the community that will benefit from the protection that is afforded by successful rehabilitation.
56․Mr Celeski, there is always hope. In your case, despite your history, there is real reason for hope.
Current sentencing practice
57․I was directed to a number of cases in which offenders were sentenced for trafficking in a controlled drug other than cannabis: R v Hoang [2020] ACTSC 262; R v French [2021] ACTSC 205; R v Mort (a pseudonym) [2021] ACTSC 175; R v Williams [2022] ACTSC 72; R v Pearce (No 2) [2022] ACTSC 71; R v Harmouche [2020] ACTSC 194; R v Butler [2020] ACTSC 170. These cases have been of assistance to me. They have enabled me to consider current sentencing practice and compare the circumstances of your offending, and your personal circumstances, with those of other offenders who committed the same or a similar offence.
58․Comparable sentences illustrate, but do not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445-6 [51]-[53].
Sentencing purposes and consideration
59․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending.
60․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.
61․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused, and your moral culpability.
62․Your sentence must deter you and others from offending. This is particularly important in circumstances where your offending demonstrates an ongoing engagement in the drug trade in association with a firearms and weapons offence.
63․The sentence must recognise the harm you have caused by engaging in the drug trade, and the misery of illicit substance dependency that it generates. As I said earlier, this is harm you know all too well through your lived experience. For this reason, the offending you engaged in must be strongly denounced. Mr Celeski, I am not denouncing you as a person. Though you are responsible for your offending, it does not define you.
64․The sentence must be designed to protect the community as well as to promote your rehabilitation. Though these purposes can conflict, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-7, “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. Though your history of relapse and reoffending is reason to be concerned about your prospects for rehabilitation, there is reason to hope. Upon your next release into the community, there will be an opportunity to realise that hope, to believe in yourself the way your parents do, and break the cycle.
Imposition of existing sentence
65․On 18 January 2024, your Treatment Order was cancelled because, upon a review, the Court was satisfied on the balance of probabilities that no satisfactory rehabilitative options were available to you: ss 80ZE and 80ZH of the Sentencing Act; Transcript of proceedings, DPP v Celeski (Supreme Court of the Australian Capital Territory, SCC 174, 175 of 2022, Refshauge AJ, 18 January 2024) 7. It is apparent from a reading of that decision that a conclusion was reached that a “continuation of the treatment and supervision part of the order [was] not likely to achieve the objects of the order”:
s 80ZE(1)(d) of the Sentencing Act.66․Because your Treatment Order was cancelled due to unsatisfactory circumstances, I must either impose the sentence that was suspended, or resentence you: s 80ZE(2) of the Sentencing Act. This determination finalises the process of review that commenced at the stage of cancellation: s 80ZH(4) of the Sentencing Act; R v Burge (No 2) [2024] ACTSC 20 at [8]-[12].
67․In deciding whether to impose the sentence that was suspended or resentence, I must take account of the extent to which you complied with the treatment and supervision part of the Treatment Order: s 80ZE(2) of the Sentencing Act.
68․A high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment: R v Cook (No 2) [2024] ACTSC 27 at [19] (Cook (No 2)). This approach is necessary to ensure that “current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences for non-compliance”: Cook (No 2) at [20].
69․You were given the opportunity to pursue your rehabilitation in the community under a Treatment Order that was imposed on 18 November 2022. You commenced trafficking in methylamphetamine a week later. You were sanctioned for using illicit drugs and returned to custody for one week from 2 to 9 December 2022. You then returned to the community to enable you to continue your rehabilitation. Instead of doing so, you continued to engage in trafficking.
70․On 24 December 2022, you were arrested on fresh charges, encompassing the conduct of trafficking for which you are being sentenced today. You were denied bail. An order was made provisionally suspending the treatment and supervision part of your Treatment Order whilst you were in custody: s 80ZC(2) of the Sentencing Act.
71․On 18 September 2023, you were granted bail, and the treatment and supervision part of your Treatment Order was reinstated to give you a further opportunity to pursue your rehabilitation in a residential rehabilitation program. On 21 December 2023, you were exited from that program due to non-compliance with its rules, and returned to custody.
72․It is apparent from this brief history that there was a high degree of non-compliance with your Treatment Order. I am satisfied that it is appropriate to impose the outstanding sentence upon you.
73․Section 80ZE(3)(b) of the Sentencing Act provides a discretion to reduce the sentence imposed “by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order”.
74․In my view, this is plainly directed to enabling a court to take into account time spent in custody after a court has provisionally cancelled the suspension of the sentence of imprisonment under the custodial part of the Treatment Order pursuant to s 80ZB(1)(e) or s 80ZB(3) of the Sentencing Act.
75․It is not directed to taking into account time spent in custody where an offender is charged with a fresh offence and denied bail. In that case, the Court is required to suspend the “treatment and supervision part of the order”: s 80ZC(2) of the Sentencing Act. This means that the custodial period is not served under the “treatment and supervision part of the treatment order”.
76․I am also of the view that s 80ZE(3)(b) of the Sentencing Act is not directed to enabling periods spent in the community to be taken into account, enabling a reduction for periods of compliance with the treatment and supervision part of the Treatment Order. If the legislature had intended such a broad discretion, the words “served in custody” would have no purpose. The provision could simply have been directed to enabling the Court to take into account any period “under the treatment and supervision part of the treatment order”.
77․This is not to suggest that compliance with the treatment and supervision part of the Treatment Order, or the Treatment Order more generally, is not to be taken into account. Rather, such compliance provides a basis, or circumstance, that may make it appropriate to exercise the discretion to resentence rather than impose a sentence of imprisonment that was suspended: see ss 80ZE(2) and 80ZD(4)(b) of the Sentencing Act.
78․In your case, I will not exercise the discretion to reduce the sentence imposed on you. Instead, I will impose the sentence that was suspended and backdate it to take into account all periods in which you have spent time in custody, as well as half the period you spent in residential rehabilitation after 18 September 2023: s 63 of the Sentencing Act.
Totality
79․An appropriate sentence must be fixed for the offence you committed between 25 November 2022 and 24 December 2022. Because this offence is independent of the offences in relation to which you were sentenced to a Treatment Order, that sentence will be largely cumulative on the sentence imposed upon you for breach of that Treatment Order.
80․However, the principle of totality requires me to step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the aggregate sentence is just and appropriate for the offences: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at 249-50 [26]. It also requires me to ensure that the overall sentence “hold[s] out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen (1997) 189 CLR 295 at 341. For this reason, I will make the sentence for the fresh offence partly concurrent, to a limited degree, with the sentence imposed for the breach of the Treatment Order.
Time in custody and residential rehabilitation
81․You have spent a number of periods of time in custody that are to be taken into account in sentencing you today. These periods are:
(a)14 days from 5 November 2022 to 18 November 2022;
(b)7 days from 2 December 2022 to 9 December 2022;
(c)270 days from 23 December 2022 to 18 September 2023;
(d)17 days from 21 December 2023 to 6 January 2024; and
(e)123 days from 8 January 2024 to 9 May 2024.
82․In total, this is a period of 431 days.
83․You have also spent 95 days in residential rehabilitation. It is not appropriate to take this time into account as being equivalent to time in custody. However, residential rehabilitation does generally involve a significant restriction of liberty. This was the case for you. For this reason, I will further backdate your sentence for approximately half of this period, or 48 days: R v West (No 2) [2024] ACTSC 5 at [67]; Brown v The Queen [2013] NSWCCA 44; 228 A Crim R 298 at 302-304 [21]-[29]. This brings the total to 479 days.
84․Your sentence will be backdated to commence on 15 January 2023, to take account of time spent in custody and the quasi-custody of residential rehabilitation.
Nonparole period
85․A nonparole period must be fixed having regard to a number of considerations: see Taylor v The Queen [2014] ACTCA 9 at 19. These include the purposes of sentencing, the objective seriousness of your offending, and your personal circumstances. A nonparole period is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 629.
86․Your prospects of rehabilitation are important. I have considered these above. Whilst it is necessary to take a cautious approach, because of your history of reoffending when subject to conditional release into the community, I remain persuaded that you have reasonable prospects of rehabilitation.
87․In your case, it is also important for me to take into account the assistance you have provided to authorities, and the risk of reprisal and fear of reprisal that follows.[redacted] I will impose a shorter nonparole period because of this, accepting that it will make your time in custody more difficult and that your choice to provide assistance is a factor in considering your resolve to rehabilitate [redacted]: s 36(2) of the Sentencing Act.
88․I will set a nonparole period of 50 per cent of your total sentence.
Orders
89․For those reasons, I will make the following orders:
(1)The conviction of David Celeski of trafficking in a controlled drug, namely methylamphetamine (CAN 1387/2022) be confirmed and a sentence of 11 months imprisonment be imposed to commence from 15 January 2023 and end on 14 December 2023.
(2)The conviction of David Celeski of possessing the proceeds of crime (CAN 1392/2022) be confirmed and a sentence of 7 months imprisonment be imposed to commence from 15 August 2023 and end on 14 May 2024.
(3)The conviction of David Celeski of trafficking in a controlled drug, namely heroin (CAN 3327/2022) be confirmed and a sentence of 12 months imprisonment be imposed to commence from 15 March 2024 and end on 14 March 2025.
(4)The conviction of David Celeski of supplying a declared substance (CAN 6749/2022) be confirmed and a sentence of 9 months imprisonment be imposed to commence from 15 January 2025 and end on 14 October 2025.
(5)The conviction of David Celeski of possessing a declared substance (CAN 6748/2022) be confirmed and a sentence of 2 months imprisonment be imposed to commence from 15 September 2025 and end on 14 November 2025.
(6)The conviction of David Celeski of burglary (CC 2016/1268) be confirmed and a sentence of 12 months imprisonment be imposed to commence from 15 November 2025 and end on 14 November 2026.
(7)The conviction of David Celeski of damaging property (CC 2016/1271) be confirmed and a sentence of 8 months imprisonment to commence from 15 March 2025 and end on 14 November 2026.
(8)The conviction of David Celeski of dishonestly riding in a motor vehicle (CC 2016/1994) be confirmed and a sentence of 6 months imprisonment be imposed to commence from 15 May 2026 and end on 14 November 2026.
(9)The conviction of David Celeski of theft (CC 2016/1267) be confirmed and a sentence of 4 months imprisonment be imposed to commence from 15 July 2026 and end on 14 November 2026.
(10)The conviction of David Celeski of obstructing a territory official (CC 2016/551) be confirmed and a sentence of 2 months imprisonment be imposed to commence from 15 October 2026 and end on 14 December 2026.
(11)The conviction of David Celeski of obstructing a territory official (CC 2016/1270) be confirmed and a sentence of 2 months imprisonment be imposed to commence from 15 November 2026 and end on 14 January 2027.
(12)The conviction of David Celeski of possessing a drug of dependence (CC 2016/1997) be confirmed and a sentence of 2 months imprisonment be imposed to commence from 15 November 2026 and end on 14 January 2027.
(13)The conviction of David Celeski of possessing a drug of dependence (CC 2016/1998) be confirmed and a sentence of 2 months imprisonment be imposed to commence from 15 November 2026 and end on 14 January 2027.
(14)David Celeski be convicted of trafficking in a controlled drug, namely methylamphetamine (CAN 12552/2022), and he be sentenced to 21 months imprisonment, reduced from 30 months on account of the plea of guilty and assistance to law enforcement authorities, to commence from 15 October 2026 and end on 14 July 2028.
(15)The total term of imprisonment is 5 years and 6 months, commencing from 15 January 2023 and ending on 14 July 2028.
(16)A nonparole period be imposed to commence from 15 January 2023 and end on 14 October 2025.
Final words
90․Mr Celeski, facing and recovering from your addiction, and disassociating yourself from those involved in drug use and criminal offending, will be very difficult. You know this better than I do. It has been your lived experience. There is a mountain to climb. In the past you have commenced the climb, but your will has faltered. The way proved too steep. You slipped back.
91․You will now have to serve a significant period of imprisonment before your next opportunity to climb the mountain on release into the community. This will be a difficult time for you. I urge you to continue to develop your strength and confidence during this time so that you are truly ready when this next opportunity comes. When it does, I hope that you will commit to the climb with courage and confidence.
92․The view from the top will be worth it. I wish you luck.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins. Associate: J Liu Date: |
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