R v Cichacz - [2022] ACTSC 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cichacz
Citation:	[2022] ACTSC 28
Hearing Dates:	13 December 2021 and 22 February 2022
DecisionDate:	13 December 2021 and 22 February 2022
Before:	Mossop J
Decision:	See [36]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking a controlled drug other than cannabis – possessing a prohibited substance – possessing a prohibited weapon – receiving stolen property – pleas of guilty – modest criminal history – illicit substance abuse – mental illness diagnosis – offender influenced to traffic by domestic partner – difficulty meeting supervision obligations due to vision impairment – not suitable for an intensive correction order – reasonable prospects of rehabilitation with appropriate assistance – sentence of imprisonment suspended upon entry into a good behaviour order
Legislation Cited:	Criminal Code 2002 (ACT), ss 313, 603(7) Criminal Code Regulation 2005 (ACT), sch 1 Drugs of Dependence Act 1989 (ACT), s 171(1)(b) Prohibited Weapons Act 1996 (ACT), s 5, sch 1
Parties:	The Queen ( Crown) Rosalind Cichacz ( Offender)
Representation:	Counsel S Janackovic ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors ( Offender)
File Numbers:	SCC 12 of 2021 SCC 13 of 2021 SCC 19 of 2021

MOSSOP J:

13 December 2021

Introduction

On 11 September 2020, the offender, Rosalind Cichacz, pleaded guilty in the Magistrates Court to the following offences:

(a)Trafficking a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CC2020/4512). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
(b)Possessing a prohibited weapon, namely an extendable baton, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2020/4514). The maximum penalty is 5 years’ imprisonment, 500 penalty units or both.
(c)Possessing a prohibited substance, namely methylenedioxymethamphetamine (MDMA), contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT) (CC2020/4516). The maximum penalty is 2 years’ imprisonment, 50 penalty units or both.

On 29 September 2021, the offender pleaded guilty in the Supreme Court to receiving stolen property contrary to s 313 of the Criminal Code (CC2020/6925). The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.

Facts

On 30 September 2019, police executed a search warrant on premises of which the offender was the occupier. During the search, police located receptacles containing substances which included methylamphetamine. There were also other indicia of trafficking including clip seal bags and two sets of digital scales. There were written records containing names and monetary amounts in the offender’s handbag and two notebooks. A total of 26.267 g of a substance containing methylamphetamine was located on the premises.

An iPhone seized by police revealed messages indicating the offender had regularly possessed and sold methylamphetamine in various amounts.

Police also found 9.297 g of a substance containing MDMA in a set of drawers and in the offender’s handbag.

Police also found a black and gold extendable baton in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cichacz

Details

AGLC: R v Cichacz [2022] ACTSC 28
Case: [2022] ACTSC 28
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Rosalind Cichacz was convicted and sentenced for various offences, including trafficking a controlled drug other than cannabis, possessing a prohibited weapon, possessing a prohibited substance, and receiving stolen property. The legal issues before the court involved determining the appropriate sentences for these offences, taking into account the offender's subjective circumstances, the objective seriousness of the offences, and the principles of sentencing. The court also had to consider the offender's pleas of guilty, time in custody, and comparable cases.

The court considered the offender's subjective circumstances, which included her modest criminal history, her involvement in drug trafficking due to her relationship with her former partner, and her struggles with mental illness and vision impairment. The court also examined the objective seriousness of the offences, which involved significant quantities of drugs and stolen property. The court took into account the offender's early guilty pleas and time spent in custody. The court then considered comparable cases to determine an appropriate range of sentences.

After weighing all the factors, the court decided to impose wholly suspended sentences for all charges, with the exception of backdating the sentence for trafficking a controlled drug to account for the time already served in custody. The court also required the offender to enter into good behaviour orders as a condition of the suspension of the sentences, with varying periods of supervision. This decision aimed to provide an incentive for the offender to make progress and reduce the ultimate liability to imprisonment as a result of the expiry of the good behaviour orders.

The final orders of the court included convictions and suspended sentences for all charges, with specific conditions and periods of good behaviour orders for each offence. The court also directed the preparation of an intensive correction assessment report and varied the offender's bail conditions. This case highlights the importance of considering both the objective seriousness of the offences and the subjective circumstances of the offender when determining an appropriate sentence.

Orders