R v Green

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Green
Citation:	[2021] ACTSC 356
Hearing Date:	12 November 2021
Decision Date:	17 November 2021
Before:	Refshauge AJ
Decision:	1. Janice Lee Green be convicted of the first offence of trafficking in a prescribed drug not being cannabis and sentenced to 13 months imprisonment to commence today, on 17 November 2021. 2. Janice Lee Green be convicted of the second offence of trafficking in a prescribed drug not being cannabis and sentenced to 15 months imprisonment, to commence on 17 February 2023. 3. Janice Lee Green be convicted of possession of property reasonably suspected of being proceeds of crime and sentenced to three months imprisonment, to commence on 17 March 2023. 4. Janice Lee Green be convicted of the possession of property reasonably suspected of being proceeds of crime, the second offence, and sentenced to three months imprisonment, to commence on 17 April 2023. 5. The breach of the Good Behaviour Order is noted and the Court takes no further action. 6. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Janice Lee Green for 20 months from today, 17 November 2021, and ending on 16 July 2023 in respect of the primary offence of trafficking in a controlled drug other than cannabis of which she has been convicted and for which she has been sentenced to 13 months imprisonment. 7. That Order be extended to the offences of trafficking in a controlled drug other than cannabis (SCAN 2021/156), possession of property reasonably suspected of being the proceeds of crime (CC 2020/4405) and possession of property reasonably suspected of being the proceeds of crime (CC 2020/9922) of which Janice Lee Green has been convicted and for which she has been sentenced, and which are associated offences of the primary offence. 8. It be noted that convictions for the primary offence and associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 9. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 17 November 2021, until 16 July 2023. 10. 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 hereby imposed; b. Janice Lee Green is to 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 she resides, with whom she associates and her attendance from time to time; and c. Janice Lee Green comply with any directions of the Court from time to time about attendance in Court in person or by electronic means. 11. Janice Lee Green be directed to appear in person in Court on Friday 19 November 2021 at 11:00 am. 12. Janice Lee Green be directed to attend the Court Registry before she 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 that this Order is in force. 13. The sections in the published sentencing remarks on “Subjective circumstances” and “Childhood disadvantage” not be published outside the Courtroom by any person other than: a. Janice Lee Green; or b. the Court to any member of the Treatment Order Team without the consent of a Judge of the Court.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in a Prescribed Drug – Possession of the Proceeds of Crime – Childhood Disadvantage – Rehabilitation – Sentence of Imprisonment – Drug and Alcohol Treatment Order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 46K, 80W, 80Y Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) s 603(7) Criminal Code Regulations (2005) (ACT) sch 1 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Bui v The Queen [2015] ACTCA 5 Liu and Milner [2019] ACTSC 115 Lodding v Barnes [2019] ACTSC 335 Markarian v The Queen [2015] HCA 25; 228 CLR 357 Mazeika v David [2014] ACTSC 95 Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 O'Brien v The Queen [2015] ACTCA 47 R v Bessant [2020] ACTSC 365 R v Blundell [2019] ACTCA 34 R v Bramley [2015] ACTSC 51 R v Cajina [2021] ACTSC 353 R v Conomos [2019] ACTSC 183 R v Di Bitonto [2016] ACTSC 280 R v French [2020] ACTSC 133 R v Hyde [2020] ACTSC 301 R v Keir [2017] ACTSC 131 R v Kelly [2021] ACTSC 143; 16 ACTLR 80 R v Khoder (No 2) [2020] ACTSC 76 R v Mathews [2020] ACTSC 364 R v McConnell-Imbriotis [2019] ACTSC 267 R v Mico [2010] ACTSC 64 R v Mort (a pseudonym) [2021] ACTSC 175 R v NF (No 1) [2016] ACTSC 216 R v Ngerengere (No 3) [2016] ACTSC 299 R v Nicholas; R v Palmer [2019] ACTCA 36 R v O’Brien [2014] ACTSC 156 R v Papadakis [2017] ACTSC 341 R v Pearce [2018] ACTSC 140 R v Zhao [2017] ACTSC 385 R v Davidson [2018] ACTSC 227 Zdravkovic v The Queen [2016] ACTCA 53
Texts Cited:	Lorana Bartels, A Review of Confiscation Schemes in Australia (Australian Institute of Criminology Technical and Background Paper Series No 36, 2010)
Parties:	ACT Director of Public Prosecutions Janice Lee Green (Offender)
Representation:	Counsel C Wanigaratne (Crown) J De Bruin (Offender)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender)
File Number:	SCC 168 of 2020 SCC 169 of 2020 SCC 243 of 2020

REFSHAUGE AJ

Introduction

It is worth repeating what was said in R v NF (No 1) [2016] ACTSC 216 at [38]–[39]:
38. There is no doubt that drug abuse causes serious problems in our community. Not only does it have a devastating effect on the lives of those addicted, but they tend to prey on the community, particularly as the addiction takes hold, and they face difficulties in finding the funds to feed their habit, targeting other members of the community and, in particular, in their possessions and property.
39. This is not only through dishonesty offences, such as burglary and theft, or more serious offences, but also through trafficking, whereby they expand the number of addicts in order to obtain money for their own purposes.
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.
Now appearing for sentence is Janice Lee Green, who has pleaded guilty to two charges of trafficking in a controlled drug other than cannabis and two counts of possession of property suspected of being proceeds of crime.
Ms Green has also asked that a Drug and Alcohol Treatment Order (Treatment Order), be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), for her to serve her sentence.
In the sentencing proceedings, the Crown tendered, without objection, its Crown Tender Bundle which contained the Indictment, the Statement of Facts, the Information and Police Statement of Facts for an offence of driving with a prescribed drug in Ms Green's oral fluid, her Criminal History and a Pre-Sentence Report. Also included were a Drug and Alcohol Sentencing List Suitability Assessment Report dated 18 October 2021 of Alcohol and Drug Services, to which was attached a Case Plan prepared by Canberra Health Services, and a Drug and Alcohol Treatment Assessment dated 22 October 2021 of ACT Corrective Services, both of which are Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. There was no challenge to the contents of any of these documents.
Mr J De Bruin, counsel for Ms Green, tendered without objection a letter dated 11 November 2021 from Ms Green's Case Manager, Ms Chloe Cantlon, at Child and Youth Protection Services. The contents of the letter were not challenged. Mr De Bruin also provided written submissions, which contained an amount of factual material. The Crown did not oppose the Court relying on that material and did not challenge any of it.
From this material, the Court makes the following findings.

The facts

On 29 February 2020, Ms Green drove a Toyota Corolla motor vehicle, which she had rented on 20 October 2019 for $5,215.39 in Fraser, ACT, when, at about 2 pm, she was involved in a collision with a Transport Canberra bus.
Bystanders helped Ms Green out of the damaged vehicle and she asked one of them to find a bag which she described as a gold-coloured bag. The bag could not be located, but when Ambulance Service paramedics and Fire Brigade officers arrived, the bag, which was actually a gold-coloured purse, was located and placed in the ambulance which took Ms Green to the Canberra Hospital.
When Ms Green was being examined by medical staff, a nurse inspected the purse and saw that it contained a large sum of money and items she suspected of being illicit drugs. She handed the purse and contents to a security officer, who put it in a safe. Police later seized the purse and found three small clip seal bags containing 32.849 grams of what was later analysed by the ACT Government Analytical Laboratory to be methylamphetamine. Police also seized $6,878.65 in cash and three small, empty clip seal bags.
These were the facts that led to the first charge of trafficking in a controlled drug other than cannabis, namely methylamphetamine, and the first charge of possession of property being the proceeds of crime.
On 30 March 2020, police went to Ms Green's house to execute a search warrant. The search continued for some time and in the early hours of 31 March 2020 police located a safe in the garage. They managed to pry open the safe and located eight clip seal bags containing what was later analysed to be 43.238 grams of methylamphetamine and $2,500.
Other items included an Apple iPhone, a container with a large number of empty clip seal bags and two clip seal bags containing 42 grams of what later turned out to be cannabis.
Police also noted that there were multiple CCTV cameras set up outside the house which were, it appears, linked to a large television screen in the garage. Police seized the hard drive of the CCTV system and noted that it showed, in the three days prior to the execution of the search warrant, “a high level of traffic of people to and from Ms Green's house”.
It also showed, in one encounter, Ms Green handing over a small white envelope to a person who arrived at the premises in exchange for something that she placed in her brassiere. The data of the iPhone identified a number of transactions between Ms Green and various other people which police believe related to the sale and purchase of illicit drugs.

The proceedings

After the collision on 29 February 2020, Ms Green was charged with some traffic offences, but also with charges of trafficking in a controlled drug other than cannabis and possession of property suspected of being the proceeds of crime. She was released on bail.
Ms Green was arrested on 31 March 2020, after the execution of the search warrant. She appeared later that day in the ACT Magistrates Court, charged with the offences of trafficking in a controlled drug other than cannabis, namely methylamphetamine, trafficking in cannabis and possession of property reasonably suspected of being proceeds of crime and was granted bail.
After an adjournment, she pleaded not guilty to the charges. Further adjournments followed and, on 30 July 2020, she was committed for trial to this Court.
On 9 November 2020, the proceedings were listed for trial for three to five days in the week commencing 12 April 2021. On 7 December 2020, however, following a Criminal Case Conference on 5 November 2020, she pleaded guilty to two of the counts on the indictment, both being counts of trafficking in a controlled drug not being cannabis. The remaining count, trafficking in cannabis, was discontinued by the filing of a nolle prosequi.
The matters then proceeded to sentence after Suitability Assessments were ordered.
Ms Green has spent no time in custody. She has, however, as noted below, spent some months in residential drug rehabilitation.

The offences

The Courts have made it clear many times that the nature and circumstances of a crime for which an offender must be sentenced are a critical part of the matter required to be considered by a sentencing court. This has now been mandated by the legislature in s 33(1)(a) of the Sentencing Act. In order to consider this, there are two aspects. The first is, as the High Court has said on many occasions, the maximum penalty for the offence. As the High Court said in Markarian v The Queen [2015] HCA 25; 228 CLR 357 at 372; [31]:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.
Of course, each particular charge laid against an offender is a version of the offence which can be committed in a great variety of ways, and which can show a greater or lesser degree of criminality and culpability. The courts have, over time, identified factors which may mainly aggravate but sometimes mitigate the seriousness of an offence. This is part of the current sentencing practice which a Court sentencing an offender is required to consider under s 33(1)(za) of the Sentencing Act.
Trafficking in a controlled drug other than cannabis is an offence contrary to s 603(7) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. It is, thus, a very serious offence, but by no means the most serious offence in the criminal calendar.
The leading decision that sets out the relevant considerations is Bui v The Queen [2015] ACTCA 5. The decision has since been affirmed by the Court of Appeal in Zdravkovic v The Queen [2016] ACTCA 53 and Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168. It has been followed at first instance on many occasions, expressly or merely by adopting the factors identified. See, for example: R v McConnell-Imbriotis [2019] ACTSC 267; Lodding v Barnes [2019] ACTSC 335; R v Hyde [2020] ACTSC 301 and R v Mort (a pseudonym) [2021] ACTSC 175.
In Bui v The Queen at [41], the Court of Appeal identified the following factors relevant to sentence:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50: [33].
(b) While, as decided in Wong v The Queen at 609; [67] – [70], 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 effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
Regrettably, as in this case, the evidence on sentencing in many cases does not give answers to all the questions raised by these principles. That often leaves the weight of the drug and its purity unknown. That can assist, for example, as the greater the quantity and the greater the purity, the more likely, but not always certain, is the offender to have been a significant participant in the drug distribution operation.
Here, the quantity of the drug is: in one case 32.849 grams, in the other 43.238 grams. The trafficable quantity of methylamphetamine is 6 grams: item 44 of Schedule 1 of the Criminal Code Regulations (2005) (ACT). Thus, the amount of drug was, in one case, five and a half times the trafficable quantity and, in the other, a little over seven times. The next level of culpability, a commercial quantity, is six kilograms, so the amount is relatively small by reference to that measure.
Nevertheless, it is a quite large quantity in itself, though considerably less than that the subject of such offences in some other decisions, such as 996.072 grams in R v French [2020] ACTSC 133, 319 grams in R v Conomos [2019] ACTSC 183, 556 grams in R v Davidson [2018] ACTSC 227, 358.9 grams, plus 665 grams sold and a further 521.9 grams in R vZhao [2017] ACTSC 385, 425.24 grams in Bui v The Queen and 931 grams in O'Brien v The Queen [2015] ACTCA 47. Of course, many sentences are imposed for much lesser amounts.
Regrettably, no evidence regarding the purity of the drug was available, despite the drug, expressly in one case and impliedly in the other, having been analysed by the ACT Government Analytical Laboratory.
There was a little direct evidence, as is quite often the case, of the role Ms Green played in the distribution chain. Inferences can be drawn to the requisite standard from the evidence. Thus, the quantity of drug found and the amount of cash also found are relevant and show that Ms Green is more than a street level dealer. That she had hired a motor vehicle for a reasonably large sum of money and for a long time, that she had a large number of empty clip seal bags in her home, that she had a CCTV system installed in her home and that the system showed a large number of persons to and from her house, allows an inference to be drawn that she is a lower mid-range user/dealer.
On the other hand, there was some lack of sophistication in her operation. For example, she had not used different vehicles to minimise detection and she was conducting the operation from her home. This confirms the assessment the Court has formed of her role.
As to her motivation, there is little evidence. It was accepted that Ms Green had not purchased any motor vehicle, nor put money towards the purchase of a home. She was a drug user herself, as was her ex-partner. The amounts of cash do suggest that she was selling more than just enough to purchase some drug for her own use, but not the amount usually associated with profit-making: R v Davidson at [30].
She was, further, only smoking half a gram daily, though there was no evidence of the quantity her partner was using. She did say, without contradiction or challenge, that she was trafficking to feed her dependence. On the other hand, she told the author of the Pre-Sentence Report that “her drug use at the time had been a significant contributing factor to her actions”.
Possessing property suspected of being the proceeds of crime is prohibited by s 114C of the Crimes Act 1900 (ACT) which prescribes a maximum penalty of two years imprisonment or a fine of $32,000, or both.
While a number of decisions in this Court have dealt with this offence over time, there is not a lot of jurisprudence as to what factors are relevant on sentence.
It is helpful, then, to describe the purpose of such legislation. It is a support to legislation for the confiscation of criminal assets. This is usefully explained in Lorana Bartels, A Review of Confiscation Schemes in Australia (Australian Institute of Criminology Technical and Background Paper Series No 36, 2010) at page v, where it was explained:
Confiscation of illegally obtained proceeds of crime is a key strategy for disrupting criminal activity, especially serious and organised crime. Confiscation of this nature serves a number of purposes. First, it seeks to deter crime by reducing its profitability, as well as diminishing offenders' ability to finance further criminal activity. In addition, compensation schemes aim to redress imbalances by compensating society for the adverse impacts of criminal activity and reimbursing the state for the costs of [sic] incurred in fighting crime. Finally, there is public utility in demonstrating to the community that crime 'does not pay'.

Clearly, this means that the amount involved is very relevant, though that is manifestly not determinative for the sentences actually imposed. Matters such as the sophistication of the operation to receive and deal with such proceeds and the planning and premeditation involved will also be relevant. It may be that if the property is possessed, but on behalf of someone else, that is a mitigating factor: R v Papadakis [2017] ACTSC 341 at [38].

Subjective circumstances

[Paragraphs 39 to 68 redacted for legal reasons]

Current sentencing practice

As well as the identification of relevant factors leading to the assessment of the seriousness of the offences, current sentencing practice is required to be considered by s 33(1)(za) of the Sentencing Act. This requires that the Court have regard to the range of sentences actually imposed for the offences. This assists with the recognition of the important principle of consistency in sentencing.
This can be done in various ways. There is now an ACT Sentencing Database, which is useful to access statistical information collected from ACT sentencing decisions. Statistics alone, however, do have their limitations, especially with the restricted factors recorded, being only matters like plea, age and the like included. Unfortunately, too, the Database has very limited linkages to the sentencing remarks which would help to fill out, in most cases, these issues, though even some sentencing remarks can leave the reader unsure of factors that could be helpful to understand why a sentence has been imposed as it has.
The other method is to look at comparable cases. Of course, it is rare that any case is on all fours with another, but the details of cases can give a sense of the range, though not the boundaries, of the sentences that have been imposed so that, when forming the instinctive synthesis required of the sentencer, a sense can be obtained of whether relevant factors may lead the Court to fix the sentence that will be just and appropriate.
In this case, the Crown helpfully compiled a table of the offence of a trafficking in a controlled drug other than cannabis, namely methylamphetamine. There are 17 sentences in the table. I have read them all. The sentences range from four years and 10 months to 10 months imprisonment. While not determinative, the quantity of the drug is generally a good indicator of the likely severity of the sentence.
For example, a 10 month sentence of imprisonment was imposed for trafficking in 13.17 grams: R v Khoder (No 2) [2020] ACTSC 76, whereas a sentence of four years and 10 months imprisonment was imposed for trafficking 425.24 grams: Bui v The Queen. Nevertheless, that is not the primary guide, as shown by the fact the trafficking in 996.072 grams and 990.862 grams of methylamphetamine attracted a sentence of two years and five months: R v French [2020] ACTSC 133.
Perhaps the closest to this case is R v McConnell-Imbriotis, where the offences involve two counts of trafficking 48.517 grams and 31.836 grams of methylamphetamine respectively. The Court found that the “offender's motivation was financial and he was low in the organisation's hierarchy” (at [13]). He was 29 years old and raised in a positive household and had “a limited criminal history” (at [60]). He pleaded guilty after committal and showed considerable remorse. He was on conditional liberty at the time of the offending. He had excellent references. He was sentenced to 13 months and eight days for the first offence and 15 months for the second which, with other offences, were to be served by an Intensive Corrections Order.
As for the offence of possession of property being the proceeds of crime, 23 decisions have been found by the Court. The longest sentence was of 10 months imprisonment for an amount of $44,900 — R v O’Brien [2014] ACTSC 156 (upheld on appeal: O'Brien v The Queen [2015] ACTCA 47) — compared to two months imprisonment for amounts each of $5,205.75, $5,008.70 and $1,477 — Liu and Milner [2019] ACTSC 115. There were anomalies such as R v Papadakis [2017] ACTSC 341, where the possession of $72,300 attracted a sentence of two months imprisonment, R v Pearce [2018] ACTSC 140 where possession of $90,340 attracted a sentence of three months and 21 days, and R v Keir [2017] ACTSC 131 where a sentence of six months imprisonment was imposed for possession of $10,000.
Generally, the sentences imposed range from two to 10 months imprisonment. There were, of course, other relevant factors, including subjective circumstances, that were important.

Childhood disadvantage

[Paragraphs 77 to 80 redacted for legal reasons]

Rehabilitation

As noted above, Ms Green has, after an unsuccessful start, completed the Canberra Recovery Services Bridge Program. This has two implications for the sentence that the Court needs to impose.
In the first place, such rehabilitation involved a restriction on her liberty in a significant way as to justify taking into account on sentence. That has been recognised as an appropriate matter to take into account. For instance, after reviewing the authorities in R v Bessant [2020] ACTSC 365 at [48], the Court took the time during which Mr Bessant had spent in a residential drug rehabilitation facility into account and that will be done here. See also R v Bramley [2015] ACTSC 51 at [24].
In addition, the fact that Ms Green has successfully achieved a degree of rehabilitation is also a matter that can moderate the severity of a sentence: R v Di Bitonto [2016] ACTSC 280. It is, of course, important that, for this aspect of the matter, the rehabilitation be successful: Mazeika v David [2014] ACTSC 95 at [13]. Indeed, that is the point of a Deferred Sentence Order, to allow a person to address the offending behaviour with the knowledge that successful progress in rehabilitation will lead to a less severe sentence: R v Mico [2010] ACTSC 64 at [19]–֪[23]; R v Kelly [2021] ACTSC 143; 16 ACTLR 80 at 87; [33].
Of course, there cannot be a double benefit to this process; that is to say, the restriction of liberty must not be given such an account in the sentence that any account given to the rehabilitation achieved would give the offender credit twice for the same mitigation of punishment.

Consideration

Sentencing is always a difficult exercise. The power to interfere with the liberty of a person is a very significant power and must be exercised carefully, justly and for a proper purpose.
The specification of the purposes of punishment has been a great benefit in this jurisdiction and has given context to the imposition of a sentence in a particular case. In this jurisdiction, the specification is to be found in s 7 of the Sentencing Act and the sentencing court must have regard for the purposes there set out.
In this case, the seriousness of the offences and the need to respect the purposes of the provisions require that punishment be reflected in the sentence. This also helps to reinforce the norms of the community, which leads to the protection by ensuring a peaceable society.
Further, to protect the community, it is desirable, as part of the reinforcement of the norms of the community, that the sentence be such as to deter others who might be tempted to behave in the same way.
The sentence should also deter Ms Green from further offending, particularly as she has such a slight criminal record that to cut it short would be much to her benefit and the benefit of her children, as well as to the benefit of the community.
There is, it seems, no need for Ms Green to be incarcerated this time to protect the community, but the rehabilitation that she has begun needs to be supported and developed and that will protect the community best.
A sentence must be imposed that will make Ms Green accountable for her behaviour and denounce her conduct as unacceptable.
While there are no easily identifiable victims, there are always victims of drug use — families who suffer, citizens whose property is taken, among others. That is why efforts need to be made to intercept the trade.
Ms Green pleaded guilty only after the Criminal Case Conference when a count on the indictment was discontinued. In R v Nicholas; R v Palmer [2019] ACTCA 36 at [52], relying on what was said in R v Blundell [2019] ACTCA 34 at [13], the Court of Appeal made it clear that, while it would be limited, a greater than usual discount for a plea should be allowed in these circumstances to ensure that the parties would have motivation to participate positively in the conference. The issue will be approached in this way. The pleas certainly still have utilitarian value as they avoid a trial which requires victims to given evidence, disrupting their lives and taking up their time, and taking up the time and resources of counsel, instructing solicitors and the Court.
At the time of the offending, however, Ms Green was on conditional liberty. This, as pointed out in R v Mathews [2020] ACTSC 364 at [36], has two aspects: the aggravating feature for the sentence of breaching the trust afforded to Ms Green for being in the community and not in custody, as well as the need to deal with the breach of the Order which gave her conditional liberty, in this case a Good Behaviour Order.
That Order was made when she was found guilty of the offence of driving a motor vehicle with a prescribed drug in her oral fluid. The offence, under s 20(1) of the Road Transport (Alcohol and Drugs) Act1977 (ACT) attracts a maximum penalty of a fine of $1,600. The Police Statement of Facts did not show that Ms Green's manner of driving drew her to the attention of police. She was tested for alcohol which proved negative, but the test for drugs proved positive. The drug was later determined to be methylamphetamine which is, of course, the drug that she had been using. There were no unusual or aggravating features of the offence. It seems that also the offending has been taken into account in matters before the Magistrates Court. Accordingly, it is appropriate that no further action be taken.
As well as these matters, account will be taken of the nature and circumstances of the offences as they have already been described and also her personal circumstances as they have been described. It is noted, too, that these offences affect the community, not least by the trouble that they cause so many. Account is further taken that Ms Green was solely responsible for the offences, as well as her childhood disadvantage that she has experienced, that is described above.
All the other matters which have been discussed in these remarks have also been taken into account.
Nevertheless, no sentence other than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, four offences. The Court must impose a sentence on each and has carefully considered the length of each sentence to ensure that it is just and adequate and also to ensure that Ms Green is not punished twice.
The Court has also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This seems to be relevant here, as the property which was the proceeds of crime were the payments made for the drugs she trafficked, leading to a significant degree of concurrency.
The Court has then considered the length of the total term of the sentence arrived at to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Ms Green to take an effective part in the community, reconnect with her children and realise her aims when she is released.
This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Ms Green is an important factor, successful rehabilitation is also important as are the circumstances of her introduction to drug use. Thus, it requires a sentence proportionate to her culpability for the crimes, the effect on the community, but also Ms Green's subjective circumstances and the value of reform to both the community and to herself.

[His Honour then spoke directly to the offender]

Ms Green, please stand.
The orders of the Court are as follows:
You are convicted of the first offence of trafficking in a prescribed drug not being cannabis and sentenced to 13 months imprisonment to commence today, on 17 November 2021. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
You are convicted of the second offence of trafficking in a prescribed drug not being cannabis and sentenced to 15 months imprisonment, to commence on 17 February 2023. That is to be cumulative as to five months on the first offence of trafficking. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
You are convicted of possession of property reasonably suspected of being proceeds of crime and sentenced to three months imprisonment, to commence on 17 March 2023. That is to be cumulative as to one month on the sentence for the second offence of trafficking. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
You are convicted of the possession of property reasonably suspected of being proceeds of crime, the second offence, and sentenced to three months imprisonment, to commence on 17 April 2023. That is to be cumulative as to one month on the sentence for the first offence of possession of property reasonably suspected of being proceeds of crime. Had you not pleaded guilty, you would have been sentenced to four months imprisonment for that offence also.
The breach of the Good Behaviour Order is noted and the Court takes no further action.
You may be seated.

Drug and Alcohol Treatment Order application

As noted above (at [4]), Ms Green has sought that a Treatment Order be made. The Court will therefore consider that. It must first be considered whether she is eligible, as set out in s 12A of the Sentencing Act.
The sentence for the offence of trafficking in a controlled drug not being cannabis is of imprisonment for 13 months and so is greater than the minimum period of 12 months imprisonment to which an offender must be sentenced to be eligible. Neither it nor the total sentence of 20 months is greater than the maximum period of eligibility, namely four years.
Further, Ms Green is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
The Court is also satisfied that she will be a resident in the ACT for at least 20 months. It is clear from the Suitability Assessments that Ms Green has a severe substance use disorder, which means that she is dependent on illicit drugs, specifically methamphetamine, and that her dependence substantially contributed to her offending on this occasion.
The Court is also satisfied that the Treatment Order regime has been explained to her and that she has had an opportunity to ask any questions about it and had such questions answered. The Court is satisfied that she has given informed consent to the making of a Treatment Order.
Accordingly, the Court is satisfied that Ms Green is eligible to be subject to a Treatment Order.
I have carefully read the Suitability Assessments referred to above (at [5]). They are always very competently, helpfully and professionally prepared and are most useful to the Court in making the important decision and of great assistance in that regard.
The both of them recommend that Ms Green is suitable to be subject to a Treatment Order and, having considered them carefully, the Court is satisfied that this is an appropriate way to serve her sentence. Both counsel submitted that this was the appropriate disposition.
Alcohol and Drug Services have prepared a comprehensive Case Plan, which is appropriate and adequate to address the issues that Ms Green must face if subject to a Treatment Order.
The Court is not aware of any indicator of unsuitability, as set out in Table 46K of the Sentencing Act, that would render Ms Green unsuitable for a Treatment Order.
Accordingly, the Court is satisfied that Ms Green is suitable for a Treatment Order and that it is appropriate that one be made.

Drug and Alcohol Treatment Order

Ms Green, please stand again.
The orders of the Court are as follows:
A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Janice Lee Green for 20 months from today, 17 November 2021, and ending on 16 July 2023 in respect of the primary offence of trafficking in a controlled drug other than cannabis (CC 2020/3988) of which she has been convicted and for which she has been sentenced to 13 months imprisonment.
That Order be extended to the offences of trafficking in a controlled drug other than cannabis (SCAN 2020/156), possession of property reasonably suspected of being the proceeds of crime (CC 2020/4405) and possession of property reasonably suspected of being the proceeds of crime (CC 2020/9922) of which Janice Lee Green has been convicted and for which she has been sentenced, and which are associated offences of the primary offence.
It be noted that convictions for the primary offence and associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 17 November 2021, until 16 July 2023.
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 hereby imposed;
b.Janice Lee Green is to 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 she resides, with whom she associates and her attendance from time to time; and
c.Janice Lee Green comply with any directions of the Court from time to time about attendance in Court in person or by electronic means.
Janice Lee Green be directed to appear in person in Court on Friday 19 November 2021 at 11:00 am.
Janice Lee Green be directed to attend the Court Registry before she 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 that this Order is in force.
The sections in the published sentencing remarks on “Subjective circumstances” and “Childhood disadvantage” not be published outside the Courtroom by any person other than:
a.Janice Lee Green; or
b.the Court to any member of the Treatment Order Team
without the consent of a Judge of the Court.
Ms Green, that is the sentence and the Order, and you may have understood most of it. It is about you, after all, but some of it probably went over your head and I am obliged to explain it to you.
Basically, what I have said is this was a serious matter but, having regard to all the factors involved, I have determined that a 20 month sentence of imprisonment is appropriate. However, because of your circumstances and, in particular, your commitment to rehabilitation, I have made a Drug and Alcohol Treatment Order.
That has been explained to you, but basically you will have to undergo programs and treatment and counselling for a period of time. The Order is for the whole of the sentence, 20 months, but the courses will vary over the phases of the term. One of the important things for you is that you will come back and you will see me or another Judge, but mostly me at this stage, initially for some months once a week and the first one is on Friday. There will not be much conversation perhaps on Friday because you will not have done much in the meantime, but we will start the process of getting to know each other so that this process can work.

There are some things that you need to understand. The first is, and no doubt you got used to this in CRS, but honesty is critical to your rehabilitation. That is not just honesty to your counsellors and to me and to others, but honesty to yourself. It is very easy, when judging yourself, not to be honest. To be honest is not to judge yourself as unworthy when things are going wrong. It is to recognise what has gone wrong and commit yourself to put it right. If you pretend nothing has gone wrong, then there is nothing to put right and that will get in the way of your rehabilitation.
The second thing is to commit to your rehabilitation and to this program. It is really important that you make this a priority. You have got a challenging priority and that is having your children with you, but at the end of the day, while you cannot neglect them, obviously, you must put this program as a priority. You cannot miss classes or courses, you cannot change your phone number without telling everyone, you cannot change your address without telling everyone and not come to the Court.
If there are problems, then come and discuss them with me, or discuss them with your Case Managers. They are very experienced people who often can assist you and have access to other people who might be able to assist you as well.
If it is difficult, come and talk to me about it. I will talk to the Treatment Order Team. I am a Judge. That makes me very powerful in lots of ways. I am not all-powerful and I cannot solve everything, but it is amazing how I can help to point you in directions, help to solve problems and help to direct other people in the Team to help solving those problems.
Thirdly, do not run away. Do not use. Do not do all the things that would be a breach of the Order.
At the end of the day, hopefully you will graduate and you will be able to be the mother to your children that you have not been able to be, and you will be able to live in the community. You have got some talents obviously. You have got certificates. You can get employment hopefully, although that is challenging in this climate. But you can have a fulfilling life and you can be the person you want to be — be strong, be able to make the choices you need to make and, ultimately, be a good member of the community.
These are important things and if you are going on this journey with us, then they are things that you need to understand. Because of your circumstances and because of your commitment, you are not going to jail. Ordinarily, someone who had committed these offences would go to jail.
So, this process is important because it keeps you out of jail. If you want to go to jail, we can do it. I am sure you do not want to. We do not want it and we try to avoid it, but if it is all too hard, then that is the real alternative.
If you can commit to this process, hopefully you will be the person that you ought to be and you will have the life that you ought to have which, critically, will be drug and crime free and with all the good things that you want for yourself.
You may be seated.

I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge

Associate:

Date: 16 November 2022

[2021] ACTSC 356

17 November 2021