R v Kristiansen - [2017] ACTSC 37

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…

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 Kristiansen

Details

AGLC: R v Kristiansen [2017] ACTSC 37
Case: [2017] ACTSC 37
Decision Date: 31 January 2017

CaseChat Overview and Summary

The matter of R v Kristiansen involved the appellant, Kristiansen, who pleaded guilty to conspiring to traffic in a controlled drug other than cannabis. The case was heard in the Supreme Court of Queensland. Kristiansen faced the prospect of imprisonment, but his legal representative argued for an alternative sentencing option that would better serve the community's best interests. Specifically, the defence sought a sentence that would impose restrictions on Kristiansen's liberty while also facilitating his rehabilitation.

The legal issues before the court centred on the appropriate sentence for Kristiansen, considering his plea of guilty, his potential for rehabilitation through residential programs, and the need to balance the community's interests with the aim of reducing reoffending. The court needed to determine whether an Intensive Corrections Order (ICO) would be suitable, given the nature of the offence and Kristiansen's circumstances. The defence argued that an ICO would provide Kristiansen with the necessary support and structure to address the underlying causes of his criminal behaviour, thereby reducing the likelihood of reoffending and better serving the community's interests.

The court acknowledged the seriousness of the offence but recognised Kristiansen's expressed willingness to undergo residential rehabilitation and his potential for successful reintegration into the community. The court found that an ICO was an appropriate sentence, as it would impose restrictions on Kristiansen's liberty while also providing him with the opportunity to address the factors that contributed to his criminal conduct. The court emphasised the importance of considering alternative sentencing options that prioritise rehabilitation and the best interests of the community. Ultimately, the court accepted the defence's argument and imposed an ICO on Kristiansen.

The final orders of the court included the imposition of an Intensive Corrections Order on Kristiansen, which would restrict his liberty and require him to participate in a residential rehabilitation program. This decision demonstrated the court's willingness to explore alternative sentencing options that prioritise rehabilitation and the community's best interests, even in cases involving serious drug-related offences.

Orders