R v Massey; R v Ontong; R v Ceissman
[2018] ACTSC 352
•3 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Massey; R v Ontong; R v Ceissman |
Citation: | [2018] ACTSC 352 |
Hearing Date: | 6 September 2018 |
DecisionDate: | 3 October 2018 |
Before: | Burns J |
Decision: | See [37]-[42]; [63]-[64]; [86]-[87] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint indictment – not strictly co-offenders – pleas of guilty – offenders sentenced separately – parity does not strictly arise but consideration given – received stolen property – dishonestly drove a motor vehicle belonging to someone else – additional offences taken into account |
Legislation Cited: | Criminal Code 2002 (ACT) ss 313, 318, 324 Drugs of Dependence Act 1989 (ACT) ss 169, 171 |
Parties: | The Queen (Crown) Gavin Massey (Offender) Nicole Ontong (Offender) Steven Ceissman (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Ms B Morrisroe (Offender – Gavin Massey) Mr A Doig (Offender – Nicole Ontong) Mr J Moffett (Offender – Steven Ceissman) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender – Gavin Massey) Darryl Perkins Solicitors (Offender – Nicole Ontong) Sharman Robertson (Offender – Steven Ceissman) | |
File Numbers: | SCC 198 of 2017; SCC 199 of 2017; SCC 200 of 2017; SCC 219 of 2017; SCC 282 of 2017; SCC 296 of 2017 |
BURNS J
On 25 July 2018, Gavin Massey, Nicole Ontong and Steven Ceissman all entered pleas of guilty with regard to a number of charges. Although they were the subject of a joint indictment and were present together at the time that these offences were uncovered, they are not strictly co‑offenders, as no two offenders are facing precisely the same charge.
While the issue of parity does not strictly arise, I nevertheless will give consideration to the sentence imposed on the other offenders when sentencing each individual offender. I will deal with each offender in turn. I will start with Gavin Massey.
Gavin Massey
Mr Massey, you entered pleas of guilty to the following offences:
(a) a charge that between 14 and 20 July 2016 you received stolen property contrary to s 313 of the Criminal Code 2002 (ACT) (Criminal Code) (XO31207 of 2017). This is Count One on an indictment dated 24 July 2018;
(b) a further charge that between 17 and 20 July 2016 you received stolen property contrary to s 313 of the Criminal Code (XO31206 of 2017). This is Count Three on the indictment;
(c) a further charge that on 19 July 2016 you received stolen property contrary to s 313 of the Criminal Code (CC345 of 2017). This is Count Five on the indictment;
(d) and a further charge that on 19 July 2016 you dishonestly drove a motor vehicle belonging to someone else contrary to s 318(2) of the Criminal Code (CC346 of 2017). This is Count Six on the indictment.
In addition, you ask that an additional offence contained in a list of additional offences be taken into account when sentencing you on Count One. This offence alleges that on 19 July 2016 you had, in premises, property that was reasonably suspected of being stolen or otherwise unlawfully obtained contrary to s 324 of the Criminal Code. This is charge number CC10378 of 2017.
The maximum penalty for the offence of receiving property is 10 years' imprisonment, a fine of $150,000, or both. The maximum penalty for the offence of dishonestly driving a motor vehicle belonging to someone else is five years' imprisonment, a fine of $75,000, or both. The maximum penalty for the offence of unlawful possession of stolen property contrary to s 324 of the Criminal Code is six months' imprisonment, a fine of $7,500, or both.
On 17 March 2017, you appeared before the Magistrates Court with respect to the charge of receiving stolen property, charge CC345 of 2017, and the charge of dishonestly driving a motor vehicle belonging to someone else, charge CC346 of 2017.
On 29 March 2017, you entered pleas of not guilty to each of those charges in the Magistrates Court. You were, after a number of adjournments, committed for trial to this Court on 15 August 2017.
An indictment dated 14 September 2017 was filed including six counts. There was one count of burglary, one count of theft, one count of dishonestly driving a motor vehicle and three counts of dishonestly receiving stolen property. These charges were originally listed for trial on 26 March 2018. However, the trial date was vacated as it was anticipated that you would be charged with offences jointly with Nicole Ontong and Steven Ceissman.
A subsequent trial date of 23 July 2018 was set. The trial commenced before myself and a jury on that date based upon a joint indictment dated 12 July 2018. The trial did not proceed beyond empanelling the jury that day as counsel wished to ventilate arguments about the admissibility of proposed evidence. On the following day, 24 July 2018, the Crown prosecutor was ill and a new prosecutor appeared for the Crown. The Crown sought an adjournment, and the trial was adjourned to 25 July 2018. On the following day, the trial could not proceed as the Crown prosecutor was ill. The trial was further adjourned to 25 July 2018, at which time a new prosecutor appeared for the Crown.
10. After some discussions on 25 July 2018, I was advised that the trial would not be proceeding and you would be entering pleas of guilty to the charges which are now before me. The jury was discharged and you entered pleas of guilty to the charges which are now before this court, which were included on a fresh indictment dated 24 July 2018. In addition, the list of additional offences specifying one charge was tendered.
A lengthy Statement of Facts was tendered at your sentence hearing. I will not now recite those facts in full. It is sufficient to note that on 19 July 2016 members of the Australian Federal Police conducted a consensual search of premises at 9 Sanderson Close, Flynn in the ACT. Present at that time were yourself, Steven Ceissman and Nicole Ontong. This was a property rented to Nicole Ontong where she resided with Steven Ceissman and their two children.
A number of items of property stolen from three burglaries on 15 July 2016, 18 July 2016 and 19 July 2016 were found by police. Also at the premises was a red Mazda 3 sedan, which contained a number of stolen items. That car had been stolen during the burglary on 15 July 2016 and was driven by you earlier on 19 July 2016.
13. Count One on the indictment, a count of receiving stolen property, relates to property that was stolen in a burglary on 15 July 2016. The property the subject of that charge included a set of keys for the red Mazda sedan, a house key and a green garage remote control, the red Mazda motor vehicle bearing ACT registration YJY29Z, an iPhone 3S mobile phone, a collection of coins and various other pieces of property. The value of these items is not made clear in the Statement of Facts except that the collection of coins located was valued at approximately $1,500.
14. Count Three on the indictment, a count of receiving stolen property, relates to property that was stolen in a burglary on 18 July 2016. The property the subject of that charge is a black Toshiba laptop, a gold purse and numerous items of jewellery. The laptop was valued at approximately $4,000, but there is no evidence as to the value of the remaining property. Much of the jewellery is described as being composed of gold or silver, and some items had previous stones such as diamonds and rubies. It may be inferred that these items had not only monetary value, but also sentimental value.
15. Count Five on the indictment, also a count of receiving stolen property, relates to property that had been stolen in a burglary on 19 July 2016. The property the subject of that charge included a jewellery box, a black HP laptop, an iPad, an iPad mini and multiple items of jewellery. It may also be inferred that these items had significant monetary value and sentimental value.
16. Count Six on the indictment is the charge of dishonestly driving a motor vehicle belonging to someone else. This was the red Mazda motor vehicle which was taken as part of the burglary on 15 July 2016. You are not to be sentenced on the basis that you are the person who committed the burglaries and stole this property. You are to be sentenced with regard to the precise offences to which you have entered pleas of guilty.
17. During the course of the search of the premises on 19 July 2016 you participated in a taped record of conversation with police in which you declined to tell them anything about the property found in the house. You subsequently participated in a further taped interview with police on 19 December 2016 in which you effectively either denied involvement in any offence relating to the property or declined to answer questions.
18. It is an aggravating circumstance that at the time you committed these offences you were subject to a parole order relating to a sentence of imprisonment imposed by Acting Justice Nield on 24 October 2013. You had been released on parole on 22 June 2016, only a matter of three or four weeks before you committed these offences.
19. You have an extensive criminal history involving serious offences of dishonesty and violence. You also have a very significant traffic history. You have served multiple terms of imprisonment. Not only does your prior criminal history disentitle you to any leniency in sentencing for the present matters, it speaks of a continuing disregard for the law and a need for personal deterrence.
20. As I said earlier, you were on parole at the time that you committed these offences. On 24 October 2013, you were sentenced to a total of four years and four months' imprisonment, commencing 4 January 2014 and expiring in 2018, for offences of unauthorised possession of firearms and driving a motor vehicle without consent. The imposition of those sentences required the sentencing judge to reset your then non‑parole period such that a parole order was made making you eligible for release on parole on 12 May 2016.
As I have noted, you were, in fact, released on parole on 22 June 2016. You committed the present offences on 19 July 2016. On 20 September 2016, the Sentence Administration Board cancelled your parole and you were liable to serve the remaining sentence of one year, 10 months and 11 days' imprisonment, being the period from 20 September 2016 to 30 July 2018. You were summonsed to appear in the Magistrates Court with regard to the present offences on 8 March 2017. You were released on parole again on 3 May 2017.
22. On 12 May 2017, you were refused bail and remanded in custody until 6 June 2017 with regard to the present charges and other charges which were subsequently finalised on 6 December 2017. On 6 June 2017, you were granted bail with respect to the present charges, but on 8 June 2017 you were again remanded in custody with respect to the present charges and another unrelated charge.
On 6 December 2017, you were sentenced to an aggregate term of imprisonment of one year and eight months in the Magistrates Court for a number of offences. The parole order of 3 May 2017 was cancelled and you were liable to serve the remaining sentence of imprisonment of one year two months and 27 days, being the period from 6 December 2017 to 4 March 2019. The sentencing magistrate set a new non-parole period of 12 months, commencing 6 December 2017 and expiring on 5 December 2018. It has been agreed that you have spent no time in custody solely referable to the present charges prior to sentencing. On the basis of the information before me I would assess the objective seriousness of each of the present offences as in the mid-range of such offences.
24. A Pre‑Sentence Report was prepared for the purposes of sentencing. You are currently 35 years old and you have been known to ACT Corrective Services since 2001. Records of that service indicate your previous compliance with supervision while on community based orders was considered poor, with several breaches initiated against you. Records also indicate that you have been subject to four disciplinary actions within the AMC since June 2017, including 28 days' non-contact visits for failing to provide a urine sample in September 2017 and three days' confinement due to striking another detainee in August 2018.
25. You told the author of the Pre‑Sentence Report that you were in Sydney before moving to Canberra when you were two years old. You are one of four children. You were raised by your maternal grandparents due to your mother being unable to raise you and your siblings. Your counsel advised me that your mother was unable to care for you due to her drug use. The report notes that you were returned to your mother's care during high school, at which time you witnessed domestic violence towards your mother by her partners. You reported a poor relationship with your father, who passed away in 2004. You said that your two brothers have criminal histories and are currently in custody at the AMC. You reported a positive relationship with your younger sister, who you described as prosocial.
26. You have two children from two previous relationships. Your 15 year old daughter currently resides with her mother. You told the author of the report that your daughter's mother has been in contact with you about having more contact with your daughter. Your five year old son was removed from parental care due to drug abuse in the environment in which he was living and is now living with your sister. You reported that you see your son weekly when you are in the community.
27. You reported that you have been with your current partner on and off for a few years. Your partner was apparently recently released from custody. You stated that in the past this relationship has been marred by illicit substance abuse by both of you. You claimed that the relationship is currently good, and you are working together with your partner to get into residential rehabilitation.
28. You left the formal education system in Year 8, but went on to complete your Year 12 certificate while in custody. You reported previous short‑term employment in labouring roles, but you have not been employed since 2009. You have few prosocial associates. You commenced alcohol use during your teenage years, but your use of alcohol has not been problematic since you were 15 years old.
29. You reported a long history of illicit substance use, including heroin, methamphetamine, cannabis, ecstasy, cocaine and prescription medication. You identified heroin, methylamphetamine and cannabis as your drugs of choice. You told the author of the report that you relapsed into illicit substance use shortly after being released from custody on parole and you were under the influence of illicit substance at the time of these offences.
30. You have previously attempted residential rehabilitation on three occasions without success. It is heartening to note that while in custody in 2017 you completed the Solaris Therapeutic Community program during your time at the AMC. You stated that you planned to go directly to a rehabilitation facility upon release from prison. You apparently do not have any physical or mental health issues which require treatment.
31. The author of the Pre‑Sentence Report expressed the opinion that you had accepted responsibility for your current offending. You were nevertheless assessed as a high risk of general reoffending. The author noted that you appear to be entrenched in criminal behaviour and you would need to make significant changes should you wish to lead a prosocial life. You will need to address your drug use, lack of accommodation, lack of prosocial supports and your offending behaviours.
32. I have read the sentencing comments of Acting Justice Nield of 24 October 2013 and those of Special Magistrate Hunter of 6 December 2017, but it is unnecessary to refer to those comments at this time. It is sufficient to note that you had not significantly progressed with regard to addressing your drug addiction and your offending behaviour between appearing before Acting Justice Nield in October 2013 and committing the present offences in July 2016.
33. As I said, it is heartening that you have now taken initial steps to address your drug addiction by completing the Solaris Therapeutic Community program during your time at the AMC. It is also encouraging that you profess a desire to engage in rehabilitation upon your release from prison, although whether you maintain that commitment after your release from prison will have to be determined.
34. Your counsel advised me that you plan on attending a residential rehabilitation program outside the ACT so as to avoid contact with former associates. It is difficult to currently assess your prospects for rehabilitation, although they will certainly improve by any sustained efforts on your part to address drug addiction.
35. I take into account your pleas of guilty with respect to these charges. Your pleas were late, being entered on the third day of your trial, although realistically the trial had not progressed beyond empanelling the jury. I accept that your pleas nevertheless had utilitarian value and I will reduce by five per cent the otherwise appropriate sentences in order to reflect your pleas of guilty.
36. All of these offences occurred around the same time, so a significant degree of concurrency is warranted. I also acknowledge the need to consider the totality of the sentences imposed not only by me but also those which you are currently serving.
Sentence
37. With regard to Count One, I record a conviction and take into account the matter on the list of additional offences. You are sentenced to 17 months' imprisonment, commencing 1 January 2018 and expiring 31 May 2019.
With regard to Count Three, I record a conviction and you are sentenced to 14 months' imprisonment, commencing 1 June 2018 and expiring 31 July 2019.
With regard to Count Five, I record a conviction and you are sentenced to 14 months’ imprisonment, commencing 1 August 2018 and expiring 30 September 2019.
With regard to Count Six, I record a conviction and you are sentenced to six months' imprisonment, commencing 1 June 2019 and expiring 30 November 2019.
41. The aggregate sentence which I have imposed is therefore one of 23 months' imprisonment, commencing 1 January 2018 and expiring 30 November 2019.
42. I set a non-parole period expiring 31 December 2018.
Nicole Ontong
Nicole Ontong, on 25 July 2018 you entered pleas of guilty to the following charges. The first charge is that between 14 and 20 July 2016 you dishonestly received stolen property contrary to s 313 of the Criminal Code (XO31190 of 2017). This was Count Two on an indictment dated 24 July 2018.
44. The second charge is that on or before 19 July 2016 you dishonestly received stolen property contrary to s 313 of the Criminal Code (XO31394 of 2018). This was Count Seven on the indictment. In sentencing you with regard to Count Seven, you ask that I take into account an offence of possession of a drug of dependence, methylamphetamine, on 19 July 2016, contrary to s 169 of the Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act) (CC338 of 2017). You also ask that I take into account an offence of possession of a prohibited substance, namely heroin, on 19 July 2016, contrary to s 171 of the Drugs of Dependence Act (CC339 of 2017).
45. The maximum penalty for the offence of receiving stolen property is 10 years' imprisonment, a fine of $150,000, or both. The maximum penalty for possession of a drug of dependence is two years' imprisonment, a fine of $7,500, or both. The maximum penalty for possession of a prohibited substance is two years' imprisonment, a fine of $7,500, or both.
46. On 8 March 2017, you were summonsed to appear in the ACT Magistrates Court on a charge of dishonestly receiving stolen property. That charge included property which is the subject of the two charges of receiving stolen property now before me. You entered a plea of not guilty to those charges on 29 March 2017.
47. On 20 July 2017, the charges were committed to this Court for trial. A joint trial involving yourself, Steven Ceissman and Gavin Massey commenced on 23 July 2018. The indictment at that time included a number of charges, including a count of dishonestly receiving stolen property relating to a stolen coin collection. On 25 July 2018, following negotiations with the Crown, you entered pleas of guilty to the two charges now before me on a revised indictment filed in Court that day. You had also previously been charged with two summary offences of possession of a drug of dependence and possession of a prohibited substance. Pleas of guilty were entered to both of those charges on 7 June 2017.
Count Two relates to a collection of coins that was found in a motor vehicle belonging to you and your partner, Mr Ceissman, and which was parked in front of your premises in Flynn. The coin collection was found on 19 July 2016 during a search of your premises, which occurred with your consent. The coin collection had been stolen in a burglary on 15 July 2016 and was valued at approximately $1,500. The coin collection is an item of property which is also the subject of a charge, Count One, against Gavin Massey, although that charge also refers to a significant quantity of other property.
49. Count Seven relates to a driver's licence, a Medicare card and a MasterCard which were found in your bedroom in a handbag belonging to you. These cards were in the name of people other than yourself and your partner, and police were able to confirm that they had been stolen. There was no evidence as to the value of these items, and I would infer that their intrinsic value was minimal.
50. Inside your purse police found a clipseal bag containing a crystalline substance and a white powdery substance in a plastic wrap. These substances were analysed and found to contain 0.229 grams of methylamphetamine and 0.589 grams of heroin. During the course of the search you participated in a taped record of conversation with police in which you denied knowing anything about the cards found in your handbag and declined to say anything to police about the drugs also found in your handbag. You have not spent any time in custody prior to sentencing with regard to these charges.
51. You have a criminal history, but it is much more limited than that of Mr Massey and Steven Ceissman. In 2004, you were convicted of an offence of theft and placed on a recognisance for a period of 12 months. Conditions were imposed clearly designed to assist you rehabilitate from drug addiction.
52. In 2017, after the commission of the present offences, you were convicted in the Magistrates Court of an offence of driving with a prescribed drug in your oral fluid. The prescribed drug was, I am told, methamphetamine. You were convicted and placed on a good behaviour order for a period of 12 months. Conditions were again imposed designed to address drug addiction.
In February 2018, again after the commission of the present offences, you were convicted in the Magistrates Court of an offence of driving whilst disqualified. You were placed on a good behaviour order for a period of eight months. The present offences are the only offences of dishonesty which appear on your criminal record after that one offence of theft in 2004.
54. You are now 35 years old and have been known to ACT Corrective Services since 2004. Corrective Services' records indicate a history of mixed compliance with community based orders. Your engagement with supervision in the months prior to the preparation of the Pre‑Sentence Report was described as inconsistent.
55. You are one of three children and reported a stable upbringing. You believed that your parents were too strict, and at 13 years of age you commenced a pattern of running away from home for a couple of days at a time. At age 15 years you moved to Melbourne with a boyfriend. You moved back to your family home nine months later after issues with illicit substances. You reported positive relationships with all family members, but acknowledged that in the past these relationships were strained due to your drug use and antisocial lifestyle. Your mother confirmed that she is willing to provide you with ongoing support.
56. You told the author of the Pre‑Sentence Report that you have two previous significant relationships, which you described as co‑dependent and involving illicit substance use. You reported being in a relationship with Steven Ceissman for 14 years and that you have two children together. You reside in a Housing ACT property with your partner and your children.
57. You completed formal education to Year Nine and stated that you are currently undertaking a certificate in Community Services online through the Canberra Institute of Technology. You have a limited employment history, consisting of casual employment in the hospitality industry in Victoria when you were approximately 16 years old.
58. You reported a history of alcohol and drug abuse which commenced pre‑adolescence and included cannabis, heroin and methylamphetamine use. You rarely consume alcohol. You provided a history to the author of the Pre‑Sentence Report consistent with a reduction in your use of illicit substance in the past few years. You have a history of compliance with pharmacotherapy program, with regular dosing at a community pharmacy.
59. On 6 August 2018, you completed an assessment for the Arcadia House program, but it is unclear whether you have followed up with regard to placement in that institution. The author of the report noted that you had been subject to treatment or counselling for unspecified mental health conditions when you were younger, but you are not currently engaged in any treatment or counselling.
60. You acknowledged to the author of the report that the stolen property the subject of these charges was at your home, but you claimed to be unaware that it had been stolen. The author of the report stated that to reduce the likelihood of recidivism it would be prudent for you to continue to engage with a program such as that offered by Arcadia House, and to complete targeted interventions specific to drug use, mental health, education and employment.
You were assessed as a medium risk of reoffending. Your charges and circumstances differ from those against Gavin Massey in a number of significant ways. First, you only face two charges of receiving stolen property. Secondly, the amount of property received by you was significantly less than that received by Mr Massey and of significantly less value. Thirdly, you were not subject to a parole order at the time that you committed these offences. Finally, on a subjective level, your criminal history is not as lengthy as that of Mr Massey. In my opinion, I am justified in taking a more lenient course with regard to your charges than that which I have taken with regard to Mr Massey.
62. Your pleas of guilty were late pleas, being entered on the third day of your trial, although realistically the trial had not progressed beyond empanelling the jury. I accept that your pleas nevertheless had utilitarian value and I will reduce by approximately five per cent the otherwise appropriate sentences in order to reflect your pleas of guilty.
Sentence
63. With regard to Count Two, I record a conviction and you are sentenced to 10 months' imprisonment, commencing today, 3 October 2018, and expiring on 2 August 2019. That sentence will be wholly suspended and there will be a good behaviour order for a period of 15 months from today with conditions:
(a)that you accept the supervision of the Director General, or that person's delegate, for a period of 15 months or such lesser period as deemed appropriate by your supervising officer; and
(b)that you are to obey all reasonable directions of the Director General, or that person's delegate, including engaging in appropriate counselling or treatment in relation to drug use, mental health and employment or education.
With regard to Count Seven, I record a conviction, and taking into account the two charges on the list of additional offences you are sentenced to five months' imprisonment, commencing today and expiring on 2 March 2019. That sentence will be wholly suspended and there will be a good behaviour order for a period of five months. Taking in consideration the conditions which I have imposed with regard to the good behaviour order on Count Two, I will impose nothing but the core conditions with respect to the good behaviour order on Count Seven.
Steven Ceissman
Steven Ceissman, on 25 July 2018 you entered a plea of guilty to one charge alleging that between 17 and 20 July 2016 you dishonestly received stolen property contrary to s 313 of the Criminal Code (XO31194 of 2017). This was Count Four on an indictment dated 24 July 2018. The maximum penalty for this offence is 10 years' imprisonment, a fine of $150,000, or both.
66. On 19 July 2016, members of the Australian Federal Police conducted a consensual search of premises at 9 Sanderson Close, Flynn. These were premises where you and your partner, Nicole Ontong, usually reside. Also present at that time was Gavin Massey.
67. During the course of that search police located in the living room a black Toshiba laptop which had been stolen in the course of a burglary on 18 July 2018. The laptop was worth approximately $4,000. During the course of the search you participated in a taped record of conversation with police in which you declined to tell them anything about the property found at your house.
68. On 8 March 2017, you were summonsed to appear in the Magistrates Court on a charge of dishonestly receiving stolen property, which included a black Toshiba laptop, the subject of Count Four. On 7 June 2017, you entered a plea of not guilty to the charge and subsequently you were committed to this Court for trial. Your trial commenced on 23 July 2018.
On 25 July 2018, following negotiations with the Crown, you entered a plea of guilty to Count Four on a revised indictment filed in Court that day. The black Toshiba laptop is an item of property which is also the subject of Count Three against Gavin Massey, but Count Three against Mr Massey also refers to a large amount of jewellery and a purse.
70. At the time of committing this offence you were subject to a number of good behaviour orders imposed by the ACT Magistrates Court. Among those good behaviour orders there were suspended sentence orders, for three months for an offence of driving a motor vehicle whilst disqualified, and six months for an offence of possession of a drug of dependence. Both suspended sentence orders were imposed on 27 April 2016.
71. You have subsequently been dealt with for breaching those orders, and indeed a number of other good behaviour orders which did not form part of suspended sentence orders. Therefore, in sentencing you today I am not required to take any action with respect to those good behaviour orders. It is nevertheless an aggravating circumstance that you were subject to these orders at the time that you committed the present offence.
72. You are currently subject to good behaviour orders imposed in the Magistrates Court on 20 April 2018, including a two month suspended sentence order for the offence of driving whilst disqualified and a four month suspended sentence order for an offence of possession of a drug of dependence. You have not spent any time in custody in respect of the present charge prior to sentencing.
73. You have a substantial prior criminal history, much of it for traffic‑related offences and for offences involving illicit drugs. You do, however, have prior convictions for offences of dishonesty. On 17 May 2007, you were sentenced to lengthy terms of imprisonment for offences of burglary and theft in this Court, although those sentences were suspended.
74. In 1991, you were convicted of an offence of possession of stolen property and placed on a recognisance for a period of 12 months. On 14 January 2014, you were convicted at the Albury Local Court of an offence of receiving property stolen outside New South Wales and you were fined $400.
75. You are currently 45 years old and you have been known to ACT Corrective Services since 30 August 1996. A Pre‑Sentence Report prepared for the present proceedings states that on 2 February 2017 you were placed on a good behaviour order in the Magistrates Court as part of a suspended sentence order. The report states that your response to supervision was considered very poor and breach proceedings were submitted to the Magistrates Court on 31 July 2017.
76. On 20 April 2018, a good behaviour order was imposed on you in the Magistrates Court and your response to the current supervision in the period from 20 April 2018 was described as inconsistent at times, but otherwise considered to be satisfactory.
A bail condition imposed on you in the Magistrates Court on 10 July 2018 requires you to abstain from the use of illicit drugs, and laboratory results of urinalysis on 7 August 2018 indicated the presence of amphetamine and methamphetamine.
78. You were born and raised in Canberra as the eldest of three children. Your parents separated when you were four years old, resulting in a level of instability. You lived with your father for two years and then with your mother for the remainder of your childhood. You have four half siblings from your mother's subsequent relationship. You reported maintaining supportive relationships with your father, mother, stepfather and siblings.
You identify as an Aboriginal man and you maintain a connection to your culture and heritage. You attend the Winnunga Aboriginal Health Service. You have recently become involved in a program of personal development at that service. You live in ACT government housing with your partner, Ms Ontong, and your two children, aged 14 and seven years.
80. You were educated to and completed Year Eight. You reported an employment history as a stonemason, saw miller and in the hospitality industry. You have, however, been continuously in receipt of government benefits since 2012.
81. You told the author of the report that you regularly smoked cannabis between the ages of 16 and 43 years. You said that you have not used cannabis for the past two years. You consumed heroin for 10 years, but you have been abstinent from that substance for over 12 years. You stated that you regularly consumed methamphetamine from the age of 27 years, and it is clear that you continue to abuse that substance.
82. You were diagnosed with a serious medical condition in April 2012, which I understand required surgery. You require ongoing medical assistance with regard to that condition. You have also received treatment and medication for an unspecified mental health condition from a psychiatrist through Winnunga.
83. The author of the report stated that you agreed with the prosecution case statement to the extent that it related to you and that you appeared to take responsibility for your criminal conduct. You were assessed as at medium to high risk of reoffending. That risk could be reduced by addressing your illicit drug abuse, employment training and skills, mental health and antisocial attitudes.
84. Your plea of guilty came at a late stage. I accept, however, that it had a utilitarian value and also evidences a degree of remorse. Your prospects for rehabilitation at the present time must remain guarded, principally due to your continued abuse of methamphetamine.
Your criminal history is not as extensive as that of Mr Massey. In addition, you face only one charge as opposed to the multiple charges to which Mr Massey entered pleas of guilty. That one charge, that is, the charge to which you have entered your plea of guilty, related to an item of not insignificant value. In common with Mr Massey you were on conditional liberty at the time of this offence. Taking all matters into consideration, a sentence of imprisonment partially suspended is appropriate.
Sentence
I record a conviction and you are sentenced to 10 months' imprisonment, commencing today, 3 October 2018, and expiring on 2 August 2019. That sentence will be served by way of full‑time imprisonment for three months, commencing today and expiring on 2 January 2019 with the balance suspended.
87. There will be a good behaviour order for a period of 15 months from 2 January 2019 with a condition that you are to accept the supervision of the Director General, or that person's delegate, for that period of 15 months or such lesser period as deemed appropriate by your supervising officer, and you are to undertake such counselling or treatment as directed, particularly in relation to illicit drug abuse, employment training and skills, mental health and antisocial attitudes.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 8 February 2019 |
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