R v McConnell-Imbriotis
[2024] ACTSC 319
•18 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McConnell-Imbriotis |
Citation: | [2024] ACTSC 319 |
Hearing Date: | 6 September 2024 |
Decision Date: | 18 October 2024 |
Before: | Berman AJ |
Decision: | See [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – drug trafficking offences – aggravated dangerous driving – driving while disqualified – sentence deferred for 12 months – where offending behaviour informed by drug and alcohol use – significant work undertaken by offender to rehabilitate – time already spent in custody and rehabilitation programs – where custodial sentence presents high risk of relapse – rehabilitation as form of community protection – sentence of imprisonment wholly suspended – good behaviour order – recognizance release order |
Legislation Cited: | Crimes Act 1914 (Cth) s 20 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 |
Parties: | Director of Public Prosecutions (Crown) Daniel McConnell-Imbriotis (Offender) |
Representation: | Counsel C Daly (Crown) N Deakes (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 168 of 2022; SCC 169 of 2022 |
BERMAN AJ:
Introduction
1․Almost exactly one year ago the offender, Daniel McConnell-Imbriotis appeared before me for sentence on drug-trafficking charges as well as offences of dealing with money reasonably suspected of being the proceeds of crime, aggravated dangerous driving, and driving whilst disqualified as a repeat offender. For reasons I gave on that occasion I adjourned the sentence in order to better assess the offender’s prospects of rehabilitation, a clearly important matter in deciding the appropriate sentence to impose.
Background
2․At about 2am on Saturday, 20 November 2021, the offender was driving a motor vehicle in the Australian Capital Territory (ACT). He should not have been driving at all because earlier that year, on 11 January 2021, his license had been disqualified for two years.
3․The way he was driving attracted the attention of police. He wasn’t speeding, to the contrary, he was driving well below the posted speed limit, which aroused the suspicions of police. The police attempted to stop the offender by activating the lights on the police vehicle they were in. The offender did not stop, instead he sped up above the speed limit and began driving recklessly, including over a concrete roundabout and through a red light.
4․He drove into a car park. Police followed, and after the offender stopped the car he was driving, an officer opened the driver’s door demanding that the offender get out. The offender did not do so, and so police attempted to physically remove him. The offender then accelerated further into the car park while police were partially inside the car. Eventually they got him out of the car and handcuffed him.
5․A search of the vehicle revealed incriminating material, including:
(a)$22,293.60 in cash;
(b)a folding knife;
(c)a green bum bag containing two snap lock bags of a white crystalline substance. Later analysis revealed that the substance was methyl amphetamine, with one bag containing 6.988 g, and the other 6.458 g of the drug;
(d)a green Woolworths bag, found in the rear of the car, containing scales, an ice pipe, a large plastic syringe, and a silver briefcase which contained:
(i)a bottle containing 276.9 g of liquid containing gamma-butyrolactone (GBL) at a purity of 87.1 percent; and
(ii)two snap lock bags containing methyl amphetamine, at 6.989 g, and 11.517 g respectively.
(e)When the offender himself was searched, police discovered a glass vial of clear liquid which was later analysed and found to contain 44.209 g of liquid containing GBL at a purity of 88.3 percent.
6․The offender’s fingerprints and DNA were discovered on a number of the items found in the car by police.
7․In the car, police also found a door swipe card key belonging to an apartment at a local hotel. The occupant of that room consented to police searching it and confirmed that the offender had been there that evening. In the room, police found snap lock bags containing methyl amphetamine, another bottle containing GBL, an ice pipe and a substance used for cutting drugs.
Charges
8․As a result of all this the offender was charged with, and later pleaded guilty to:
(a)trafficking in a marketable quantity of GBL, an offence carrying a maximum penalty of 25 years imprisonment;
(b)trafficking in methamphetamine, an offence carrying a maximum penalty of 10 years imprisonment;
(c)dealing with money reasonably suspected of being the proceeds of crime, an offence carrying a maximum penalty of two years imprisonment; (up until shortly before delivering these remarks it was thought that this offence was one for which I would specifically sentence him. However, it was belatedly discovered that, for reasons I need not refer to, this offence was not properly before me. The offence is now on a Schedule under pt 4.4 of the Crimes (Sentencing) Act 2005 so I will take this offence into account when I impose a sentence for the trafficking in methamphetamine offence);
(d)aggravated dangerous driving, an offence carrying a maximum penalty of three years imprisonment as well as licence disqualification; and
(e)driving whilst disqualified, as a repeat offender, an offence carrying a maximum penalty of one year imprisonment together with licence disqualification.
Assessment
9․I must assess the objective seriousness of the offences. In doing so I have been assisted by decisions which helpfully set out some matters which should be taken into account in making that assessment. Those decisions are: R v McKenna [2022] ACTSC 346; Bui v The Queen [2015] ACTCA 5; R v Pearce (No 2) [2022] ACTSC 71; R v Rosewarne [2021] ACTSC 217; R v Law [2021] ACTSC 351; and Cotter v Corvisy [2008] ACTSC 64.
10․As is clear from the maximum penalty, the offence of trafficking in a marketable quantity of GBL is of course the most serious. After taking into account the purity of the admixtures, the offender had a total of 281.8 g of the drug in his possession. A marketable quantity of that drug is 250 g, while the commercial quantity is 1 kg.
11․As far as the methyl amphetamine traffic offence is concerned, the offender possessed, for the purposes of supply, a total of 31.952 g of that drug. A trafficable quantity of methyl amphetamine is 6 g, while the commercial quantity is 3 kg.
12․As far as both drugs are concerned, the offender clearly had well short of the commercial quantities in his possession for the purposes of supplying them.
13․The offender told police that he was supplying drugs in order to fund his own drug habit. There is nothing to contradict this. There is no evidence that he was living a champagne lifestyle off the proceeds of large-scale drug dealing. He appears to have been a street level dealer.
14․The harm that drug trafficking offences cause to the community is difficult to quantify precisely. Burns J in R v Baker (No 3) [2019] ACTSC 365 described it as immeasurable. Those who traffic in drugs ruin lives, prey on the vulnerable, and usually think nothing of the consequences of their activities. Ironically, addicts such as this offender are best placed to know about the misery they cause because they themselves experience the awful effects of drug addiction.
15․The harm caused by drug trafficking extends beyond the effects on individual addicts though. Drugs are expensive and so addicts can rarely fund their addictions through legitimate means. Instead, they rob, steal, burgle, and defraud entirely innocent members of the community to get the money they need to buy the drugs they crave.
16․The money which is the subject of the proceeds of crime offence (now on the pt 4.4 Schedule) is clearly money the offender obtained through his drug dealing activities. There is no evidence as to how long those activities were carried on by the offender, but clearly they were not limited to an intention to supply only those drugs discovered by police on 20 November 2021. The drug paraphernalia found in the car, and the things found in the hotel, suggest more than a transitory operation.
17․The dangerousness of his driving is obvious. It is the aggravated form of the offence because the offender failed to stop when signalled to by police. He was keen to get away because of what he was up to and what he had in his possession. He ran a red light, exceeded the speed limits, and drove over a roundabout. On the other hand, it was the early hours of the morning, there were no vehicles other than police vehicles in the area, and the chase did not exceed five minutes.
18․As I mentioned early on, the offender should not have been driving because he was disqualified from doing so. It is relevant that he drove in connection with his drug dealing activities, this is his second conviction for this type of offence, and he had a further 14 months disqualification still to be served.
19․The offender’s criminal history is nothing to be proud of. There are many driving offences, drug offences, and weapons offences including firearms.
20․Somewhat remarkably, the offences for which I must sentence the offender were committed whilst he was subject to an intensive corrections order imposed for an offence of drug-trafficking committed in April 2019.
21․In such circumstances, one could ordinarily expect that the appropriate sentence to impose upon the offender is one containing significant measures of both general and specific deterrence.
22․However, there are some cases where it is appropriate to focus on an offender’s rehabilitation rather than punishment. After all, the ultimate purpose of sentencing an offender is to protect the community. Ordinarily, this is done by imposing significant, sometimes even harsh sentences, which demonstrate to both the offender and the community generally that criminal behaviour will be met with sentences of such seriousness that people will be deterred from behaving that way by the prospect of significant punishment.
23․But the community can be protected in other ways too. If an offender who would otherwise go on to commit more crimes, involving more harm to the community, can be encouraged to rehabilitate themselves, and to put their criminal ways behind them, the community obviously benefits. Focusing on an offender’s rehabilitation, rather than punishing him is not done as a favour to the offender. It is done because, in the particular circumstances of that case, it is the best way of reducing the harm to the community which is caused by the commission of criminal offences.
24․The offender spent seven months in custody after his arrest. He was granted bail on the condition that he attend a drug rehabilitation program. He spent six months there but was discharged as a result of using Valium. An application that his bail be revoked was rejected by Mossop J who varied his conditions of bail in such a way that the offender was required to live with his family in New South Wales, to abstain from drug use, and to accept monitoring by the Court Alcohol and Drug Assessment Service (DPP v McConnell-Imbriotis [2022] ACTSC 372). There were other conditions too, including a curfew requirement.
25․The offender was admitted into the WHOS Gunyah program (WHOS program) on 8 February 2023. When he appeared before me in September 2023, he was in the exit stage of that program. The evidence was that that indicated that the offender had met the expectations of previous stages. He had not committed any further offences either.
26․It is notorious that there are many people who are successfully able to give up drug use in a residential rehabilitation program, but who relapse after leaving the program and its high level of support. That is one of the reasons that I adjourned the offender’s sentencing proceedings for 12 months. I wished to see how the offender would fare after leaving the WHOS program.
27․The offender returned to court to continue the sentence proceedings on 6 September 2024. He had completed the WHOS program and was now living with his mother and younger brother in Sydney. He started a TAFE course in February and, once that is completed, plans to do another one.
28․One of the reasons that he left Canberra was because he had few prosocial contacts. In particular, his work as a chef put him in regular contact with a cohort of people and a lifestyle which encouraged his drug use.
29․Whilst in Sydney, he did work as a chef in one particular venue but stopped because of the drinking culture to which he was exposed. He now works as a chef in a café which is not open in the evenings and where he is not exposed to a similar culture. The TAFE courses he is doing are as part of a plan to change careers.
30․The offender explained how drug-use affected him, and how it was that he ended up committing the offences for which I must sentence him. As is almost universally the case, his drug addiction led to him having no thought of the consequences of his actions. During the COVID lockdown, he became isolated and depressed and turned back to using drugs. Many people he had been trying to avoid came back into his life, he was in debt, and people were chasing him for money.
31․Since entering the WHOS program, the offender has been abstinent from drugs, and the longer this period of abstinence has gone on, the more his early life has repulsed him. On the first occasion the offender appeared before me, urinalysis certificates were tendered which showed no evidence of drug use. Further certificates were tendered today which confirmed what all the other evidence has pointed to—an absence of drug use.
32․Two significant events have occurred in his life in the last 12 months. The first is that his father died suddenly, but fortunately not before the offender’s actions gave him hope that he was taking his rehabilitation seriously and was not going to go back to his old life.
33․The other event is a happy one. He has discovered that he is a father to a five-year old girl. She and her mother, who live on the Gold Coast, came down to Sydney for Father’s Day recently.
34․In summary, the offender has done all that could have been expected of him since I last saw him. He has completed the residential rehabilitation program, he has not used drugs, he is studying and working, he is mixing with prosocial friends and there is no one in his life who uses drugs.
35․I am satisfied that if he can avoid slipping back into his former lifestyle, then he has excellent prospects of putting his drug use, and more importantly drug dealing, days behind him. Here we come to a dilemma. Whilst conceding that a custodial sentence of some form is required, Mr Deakes, who appeared for the offender on both occasions, sought an alternative to full-time imprisonment. The problem is that he is only eligible to serve his sentence of imprisonment by way of an intensive corrections order if he lives in the ACT. But living here would run the real risk of exposing him to the culture he has just escaped. I am satisfied that any sentence of imprisonment which required him to return to the ACT would present a very high risk of relapse.
36․If that were to occur, then the community would suffer. Drugs are expensive things to be addicted to, and if the offender’s addiction returns, then there is a real risk that the citizens of the ACT would be harmed. In order to fund his addiction the offender might easily resort to various forms of criminal behaviour.
37․On the other hand, the offender can serve his sentence of imprisonment whilst living in Sydney by means of a suspended sentence. Many might think that that is insufficient punishment to reflect the objective gravity of his offending.
38․In assessing whether to impose a sentence of full-time imprisonment on the offender, or to suspend the sentence of imprisonment, I take into account not only the approximately seven months or so that the offender spent in custody until released on bail, but also the fact that the offender has spent a significant period of time in quasi-custody; about one year and six months. Although suggestions to the contrary have been made from time to time, there is no magical mathematical formula which enables a comparison between on the one hand, the various forms of quasi-custody experienced in a residential rehabilitation program, and on the other, the experience of being a full-time prisoner. That said, one year and six months in residential rehabilitation programs reflects a significant period of time in which the offender’s liberty was constrained and his life was closely monitored.
Plea of guilty
39․The offender pleaded guilty after being committed for trial, but before a Criminal Case Conference. There were no pre-trial applications heard by the court, nor were any witnesses called or cross-examined. Mr Deakes concedes that the evidence against his client was “generally strong”. In such circumstances I propose to impose a sentence on the offender which is about 15 percent shorter than it would otherwise have been.
General and specific deterrence
40․Usually, in drug offences, general deterrence is of prime importance. A suspended sentence of imprisonment does much less to deter others than a sentence of full-time custody. But that is not to say there would be little general deterrent effect, were a suspended sentence of imprisonment to be imposed. The offender’s time in prison, and the quasi-custody associated with his residential rehabilitation programs will operate, to some extent, to deter others who may be tempted to become drug traffickers.
41․Similarly, in deciding whether the offender has been adequately punished and the harm he has caused has been recognised, the offender’s time in prison and in residential rehabilitation must be kept in mind.
Current sentencing practice
42․The parties have helpfully provided me with references to a number of decisions of this Court, and other courts, where offenders have been sentenced for offences like the ones I must deal with today.
43․Whilst no two cases are alike, I have found those cases helpful, making allowances for the differences between them and the case before me.
44․I do not consider it necessary to go through the cases one by one pointing out those differences.
Disposition
45․Given that Mr Deakes concedes that sentences of imprisonment are necessary, the choice as to how those sentences should be served is a stark one. I have decided to impose a sentence which focuses on the offender’s rehabilitation. I consider that were the offender required to serve a sentence of full-time imprisonment, there is a significant risk that upon release from custody his drug addiction would flare up and, for reasons I’ve already explained, the community would thus be harmed. The offender is on the path to becoming a well-respected, law-abiding, and productive citizen. He has been punished significantly through periods of actual custody and quasi-custody. In such circumstances suspended sentences of imprisonment are appropriate.
Concurrency or Accumulation
46․All of these offences arose out of the same circumstances; the one episode of drug trafficking and an associated attempt to avoid detection.
47․Notwithstanding that each offence represented a separate act of criminality, I have decided to impose concurrent sentences of imprisonment.
Sentence
48․I make the following orders:
(1)For the offence of trafficking in a marketable quantity of GBL (CAN 6573/2022), the offender is convicted and sentenced to imprisonment for 2 years and 2 months to commence today, 18 October 2024 and to expire 17 December 2026, with a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth) permitting his release immediately with security of $1,000, without surety, and on the condition that he be of good behaviour for a period of 2 years and 2 months from the date of his release, the recognizance release order thus expiring on 17 December 2026. Were it not for his plea of guilty, the sentence of imprisonment would have been for 2 years and 6 months.
(2)For the offence of trafficking in methamphetamine (CAN 11299/2021), taking into account the offence of dealing with the proceeds of a crime (CAN 11300/21), the offender is convicted and sentenced to imprisonment for 1 year and 8 months to commence today, 18 October 2024 and to expire 17 June 2026. Were it not for his plea of guilty, the sentence of imprisonment would have been for 2 years.
(3)For the offence of aggravated dangerous driving as a first offender (CAN 11296/2021), the offender is convicted and sentenced to imprisonment for 10 months to commence today, 18 October 2024 and to expire 17 August 2025. Were it not for his plea of guilty, the sentence of imprisonment would have been for 12 months. He is disqualified from driving for the automatic period of 12 months from today, ending on 17 October 2025.
(4)For the offence of driving whilst disqualified as a repeat offender (CAN 11298/2021), the offender is convicted and sentenced to imprisonment for 3 months to commence today 18 October 2024 and to expire 17 January 2025. Were it not for his plea of guilty, the sentence of imprisonment would have been for 4 months. He is disqualified from driving for the automatic period of 2 years from today, ending 17 October 2026.
(5)The entirety of the sentences, other than for the Commonwealth offence of trafficking in a marketable quantity of GBL are wholly suspended from today upon the offender giving an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years and two months.
(6)In case it is not obvious, the periods of disqualification I have ordered are to be served concurrently.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Berman. Associate: Date: 22 October 2024 |
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