R v Kristiansen
[2017] ACTSC 37
•31 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kristiansen |
Citation: | [2017] ACTSC 37 |
Hearing Date(s): | 26 October 2016 and 31 January 2017 |
DecisionDate: | 31 January 2017 |
Before: | Burns J |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – Extensions of Criminal Responsibility - conspiracy – conspiring to traffic in controlled drug other than cannabis – plea of guilty – residential rehabilitation – restricted liberty – community’s best interests – Intensive Corrections Order. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 48, 603 Crimes (Sentencing) Act 2005 (ACT) ss 11 |
Parties: | The Queen (Crown) Thor Kristiansen (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr R Thomas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 61 of 2015; SCC 62 of 2015 |
Burns J:
Mr Kristiansen, you have pleaded guilty to conspiring with others between 1 June 2013 and 14 May 2014 to traffic in methylamphetamine contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 48 of the Criminal Code.
A comprehensive Statement of Facts was tendered on 26 October last year. I will not now recite the facts. It is sufficient to note that you and a number of co‑offenders conspired together with a Mr Adley Tsang and a Mr Adnan Hamdoun to traffic in a controlled drug, namely, methylamphetamine. It is clear that the circumstances of the offence make this offence a particularly serious one. The maximum penalty for the offence of conspiring to traffic in methylamphetamine is 10 years imprisonment, a fine of $150,000, or both.
You initially pleaded not guilty to this charge together with other charges and you were committed for trial on 2 April 2015. At the time of this offence, you were incarcerated at the Alexander Maconochie Centre (AMC). By communicating with co‑offenders outside of the prison you were, together with Anthony Hagen, at least initially, the main offenders with respect to this offence. You effectively controlled the importation of methylamphetamine for supply into the Australian Capital Territory (ACT) through intermediaries and you were also involved in having some of that substance imported into the AMC. As I said before, it is clear from the facts that this is a particularly serious offence.
Ultimately you entered a plea of guilty to the present charge just before the date when you were to take your trial with respect to the charge. In June 2015, you were subsequently granted bail by Refshauge J. As I indicated in discussion with counsel, you are indeed fortunate that you were granted bail by Refshauge J that day because I suspect I would not have granted you bail based upon the nature of the offence and also your criminal history.
You have, however, repaid the faith that was shown in you by Refshauge J by taking the opportunity to demonstrate that you are capable of rehabilitating yourself from drug addiction. I accept that drug addiction, to a great extent, is at the heart of your criminal offending over the years. I also accept that you had a particularly disturbed childhood, and that in itself was a factor in you commencing your use of illicit substances at an early age. The fact that you commenced the use of illicit substances at an early age allows the court to show some degree of leniency towards you which would not otherwise be warranted. Where a person commences drug and alcohol abuse at an early age which then leads to addiction, the court is entitled to demonstrate leniency because as a juvenile you should not be held as responsible for the consequences of your actions as you would be if you had commenced substance abuse when you were an adult.
I take into account the contents of the Pre‑Sentence Report and the other material that has been put before me. I note that you have been participating in residential drug rehabilitation programs now for approximately 18 months and I am satisfied that this has provided a very significant restriction upon your liberty. I am entitled to take that into account in determining an appropriate sentence.
The Crown has quite correctly pointed out that rehabilitation is, whilst an important sentencing consideration, not the only sentencing consideration which I must consider in passing sentence. I must also bear in mind the need to pass a sentence which will deter others from committing offences of this nature and which also demonstrates the community's disapproval with respect to this type of offending.
In my opinion, nothing less than a substantial period of imprisonment would be appropriate in order to meet those requirements of sentencing. On the other hand, as I have said, you have taken the opportunity that was given to you by Refshauge J to demonstrate a willingness to deal with substance abuse. As such, I am satisfied that there has been, since you entered into drug rehabilitation, a significant reduction in the need for personal deterrence with respect to sentencing.
In my view, the community's best interests at the present time are found in encouraging you to maintain the course of rehabilitation which you have already embarked upon. You need, of course, to understand that this is only the beginning of the process and that you must maintain your commitment to address drug abuse and also to avoid further offending because inevitably, if you commit further offences, you will go to gaol, and with your criminal history it is likely that it will be for a significant period of time.
My starting point with respect to sentencing, bearing in mind the sentences that I imposed on your co‑offenders, is one of five years and six months imprisonment. I would reduce that by nine months in order to reflect your plea of guilty. I would reduce that for a further period of 9 months in order to recognise the period of 18 months when you were subject to restricted liberty by reason of being bailed to attend residential rehabilitation. This leaves a sentence of four years imprisonment, which is within the period which is under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) a sentence which permits the making of an Intensive Corrections Order.
Sentence
I therefore impose a conviction with respect to the offence and you will be sentenced to four years imprisonment, and I will order that the sentence is to be served by intensive correction in the community. In making that order I am satisfied, as required by s 11(3) of the Crimes (Sentencing) Act, that it is appropriate to do so having regard to the matters that are set out therein.
I note that the Intensive Correction Order will target alcohol and other drug use, attitudes, education and employment, relationship counselling and companions, and I will make the conditions that are recommended by the authors of the report, that you are:
a) to engage with ongoing alcohol and drug counselling and undergo regular drug screening;
b) to engage with cognitive based treatment to address antisocial beliefs and attitudes;
c) to engage in one‑to‑one relationship counselling with CatholicCare, or some other approved agency;
d) not knowingly or recklessly to communicate by any means whatsoever, whether directly or indirectly, with any member of an outlaw motorcycle gang;
e) not to contact, directly or indirectly, any of the victims of your offences; and
f) not to assault, threaten, intimidate or harass any of the victims of your offences.
[speaks directly to offender]
Mr Kristiansen, you have heard what I have said. You also heard what I said earlier, that this means that you have that sentence of four years imprisonment hanging over your head for as long as the Intensive Correction Order is in place, effectively for the next four years. If you fail to maintain your commitment towards rehabilitation, then you face the very real prospect of having to serve that period of imprisonment.
I must say I have been impressed by the way in which you have demonstrated a commitment this time to dealing with drug abuse, and you have proved me wrong in the sense that I did not think that you were capable of making this achievement. But you really do now need to maintain your commitment over that period of four years.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 6 March 2017 |
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