R v O'Neil
[2021] ACTSC 345
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v O’Neil |
Citation: | [2021] ACTSC 345 |
Hearing Date: | 6 August 2021 |
DecisionDate: | 13 August 2021 |
Before: | Refshauge AJ |
Decision: | 1. Graham Stephen O’Neil be convicted of possessing for sale or supply and be sentenced to 13 months imprisonment, to commence on 13 August 2021 and expire on 12 September 2022. 2. Graham Stephen O’Neil be convicted of possessing of a prohibited weapon and be sentenced to 2 months imprisonment, to commence on 13 September 2022 and expire on 12 November 2022. 3. Graham Stephen O’Neil be convicted of possessing a drug of dependence and be sentenced to 1 month imprisonment, to commence on 13 November 2022 and expire on 12 December 2022. 4. Graham Stephen O’Neil be convicted of possessing a drug of dependence and be sentenced to 1 month imprisonment, to commence on 13 December 2022 and end on 12 January 2023. 5. Graham Stephen O’Neil be convicted of possessing a drug of dependence and be sentenced to 1 month imprisonment, to commence on 13 January 2023 and end on 12 February 2023. 6. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Graham Stephen O’Neil for 15 months from today, commencing on 13 August 2021 and expiring on 12 November 2022, in respect of the primary offence of possessing for sale or supply. 7. That Order be extended to the offences of possession of a prohibited weapon and the three counts of possessing a drug of dependence, the associated offences of the primary offence. 8. The convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them and be hereby incorporated into the Custodial Part of the Drug and Alcohol Treatment Order. 9. The Custodial Part of the Drug and Alcohol Treatment Order be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 13 August 2021, until 12 February 2023. 10. Under ss 22 and 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Graham Stephen O’Neil be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 13 November 2022 until 12 February 2023, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 11. 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) be hereby imposed; b. Graham Stephen O’Neil be directed to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court, and obey all reasonable directions of any member of that Team or the Court about where he resides, with whom he associates and his attendance from time to time; and c. Graham Stephen O’Neil comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 12. Graham Stephen O’Neil be directed to appear in Court on 20 August 2021 at 11:30 am. 13. Graham Stephen O’Neil be directed to attend the Court Registry before he leaves the Court precincts today to sign a sealed copy of this Order and the Good Behaviour 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. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Possessing for Sale or Supply – Possessing a Prohibited Weapon – Possessing Drug of Dependence – Rehabilitation – Drug and Alcohol Treatment Order |
Legislation Cited: | Criminal Code Regulation 2005 (ACT) Crimes (Sentence Administration) Act2005 (ACT) s 85 Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Boughey v The Queen [2015] ACTCA 5 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen ( Crown) Graham Stephen O’Neil ( Offender) |
Representation: | Counsel C Daly ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tu’ulakitau McGuire ( Offender) | |
File Numbers: | SCC 164 of 2020 SCC 178 of 2020 SCC 286 of 2020 |
REFSHAUGE AJ
Introduction
In R v Vu [2021] ACTSC 347 the Court explained the notion of a dealer in illicit drugs and assessed the seriousness of that criminality in order to impose a sentence to punish and denounce the unacceptable conduct and deter others from behaving in the same way.
Even in that brief description, the complexity of the issue was not fully explored. For example, there are ‘dealers’ who distribute to users as opposed to further distributors. Thus, the notion is a difficult matter that does not necessarily distil itself into easy discrete categories. Some of these people will sell for a quite significant amount of money and some may keep all or part of that for themselves. The precise nature of the operation may be difficult to understand.
As with many crimes, there are a wide range of circumstances in which they are committed and simplistic explanations are not impossible to make or sometimes are even accurate to the necessary degree. It is important, however, not to lapse into stereotypes or simplistic descriptions unless they can be truly said to be accurate.
The Court now has to sentence Graham Stephen O'Neil, who has pleaded guilty to offences of possessing methylamphetamine for the purpose of supply; unauthorised possession of a prohibited weapon; and three counts of possessing a drug of dependence.
Mr O'Neil has asked for a Drug and Alcohol Treatment Order (Treatment Order) to be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT).
The Crown tendered, without objection, its Sentencing Tender Bundle and none of the contents of the documents contained in it were challenged. As well as the prescribed Cover Sheet, the documents included the committal and transfer charges and the Indictment to which Mr O'Neil has pleaded guilty. Also included were: the Agreed Statement of Facts; Mr O'Neil's Criminal History; a Pre-Sentence Report dated 19 March 2021; a Court Alcohol and Drug Service (CADAS) Report dated 23 March 2021; Evidentiary Statements of an expert on weapons, Clive Roberts, and Detective Sergeant David Fleming, whose 24 years in policing has, he says, given him a good knowledge of the purity level, sizes and price of drugs sold in the community and of the language used by those who buy, sell and use illicit drugs; four Evidentiary Certificates of the ACT Government Analytical Laboratory; a Prohibited Weapons Certificate; and another CADAS Report dated 27 May 2021. Further included were two Assessment Reports of the Alcohol and Drug Services and Forensic Mental Health, which were Eligibility Assessments of the kind referred to in R v McHughes [2021] ACTSC 92 at [7].
The Tender Bundle included in addition a Drug and Alcohol List Assessment, dated 19 July 2021, of the ACT Alcohol and Drug Services and a Drug and Alcohol Treatment Assessment, dated 22 July 2021, of ACT Corrective Services, both of which are the Drug and Alcohol Treatment Assessments (Suitability Assessments), under s 46J of the Sentencing Act. A Case Plan for Mr O'Neil was also included with the former Suitability Assessment.
The facts
At approximately 5:30pm on 10 December 2018, police attended Mr O'Neil's residence in Oxley, ACT, to execute a search warrant. Mr O'Neil was home with his 12 year old son. It is not clear what happened to the son, but police recorded Mr O'Neil's conversation when he was given a copy of the search warrant and asked whether there were any of the items listed on it in the house. The items listed were, it appears, illicit drugs and drug related material.
Mr O'Neil told them that what the police were looking for was in the corner of the kitchen. Police then found the following items: 12.079 grams of methylamphetamine contained in 4 clip seal bags inside a cigarette packet on the top of the right cupboard of the kitchen, with a purity of 73.9%; an extendable baton on top of the bread bin in the right corner of the kitchen; 10 oxycodone tablets weighing 0.975 grams in a blister pack on the lower shelf of the kitchen; a clip seal bag containing a morphine pill weighing 0.158 grams on the lower shelf of the area of the kitchen; and a clip seal bag containing 0.253 grams of cocaine inside a black tin.
Police also located two digital sets of scales, one of which had on it a trace of methylamphetamine; a bag and blender smelling of cannabis; nine mobile phones; a bong; and a black box connected to CCTV cameras.
Although Mr O'Neil did not make any particular comments, he did explain that the extendable baton was meant to be plastic and that he had purchased it from wish.com, an online shopping store. He also said that he fixed mobile phones for various people. He further said that the video camera was “just fake, there just to scare people”.
Police took Mr O'Neil's phone and looked at messages. With the assistance of Detective Fleming, it appeared that they were messages by which people arranged to purchase drugs from Mr O'Neil.
The proceedings
Mr O'Neil was not arrested but police proceeded by way of summons. He appeared in the ACT Magistrates Court on 11 December 2018. He was released on bail. The charges proceeded at a leisurely pace, perhaps because of COVID-19 restrictions. In any event, he pleaded not guilty on 14 January 2019.
The next appearance was said to be listed on 23 March 2020, but it was ‘administratively listed’ on 6 July 2020. It appears that, although a plea of guilty was then indicated, no plea was ever entered in the Magistrates Court.
The proceedings were apparently “transferred to the Supreme Court for another matter”, but they remained in the Magistrates Court and were ultimately transferred on 9 December 2020, following which Mr O’Neil appeared in this Court on 26 March 2021. That may have been because the Criminal Case Conference conducted in this Court led to his plea of guilty to the present charges in this Court, which also resulted in a new Indictment being presented.
There was a further delay. On 9 June 2021, Eligibility Assessments were ordered. On those Assessments recommending it, the Court ordered the Suitability Assessments on 11 June 2021 and listed the matter for sentence.
There was further delay because outstanding charges laid against Mr O'Neil had not been resolved, as they could have resulted in sentencing orders that would have prevented consideration of a Treatment Order. Those have been resolved in this last week and the orders made, Good Behaviour Orders, do not risk the making of a Treatment Order.
Mr O'Neil has not spent any time in custody on these charges.
The offences
The facts as found are relied on by the Crown to found the charges preferred against Mr O'Neil. Such charges, however, encompass a wide range of behaviours and acts. It is, therefore, completely unsurprising that the sentencing options are wide ranging.
The legislature sets a maximum penalty, but the courts do not automatically impose that. A maximum penalty is reserved for the worst type of offence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. The maximum penalty, however, is important as it is a yardstick against which to measure the seriousness of an offence, and the sentencing court must have regard to it: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31].
Thus, the facts and the maximum penalty give an important measure of the way in which the sentencing court must approach the task of sentencing for the particular offence. The courts have, however, in current sentencing practice, set out criteria by which the particular seriousness of an offence actually committed is to be judged. This helpfully identifies factors which are aggravating or mitigating for this purpose.
Possession of drugs, namely methylamphetamine, for sale or supply is contrary to s 164(2) of the Drugs of Dependence Act 1989 (ACT) which imposes a maximum penalty of 5 years imprisonment or a fine of $80,000 or both. Thus, it is not a very serious offence, but a serious one nevertheless.
The offence has a serious effect on the community. Distribution of illicit drugs is a means by which the social distress that drug use, especially drug dependency, causes is spread throughout the community: R v Kilicaslan [2015] ACTSC 39 at [24]. Such an offence is committed, as in this case, in having possession of such drugs for the purpose of supply. This was shown from the messages recorded on Mr O'Neil's phone.
The particular matters that the courts have considered relevant to the seriousness of offences of supplying or trafficking drugs are helpfully summarised in Boughey v The Queen [2015] ACTCA 5 at [41], namely, the role that the offender plays in the distribution, the weight, purity and value of the drugs and the motivation of the offender.
While the level of purity of drugs possessed by Mr O'Neil was relatively high, (see R v Vu) it was a relatively small quantity of drug. It is relevant that the trafficable quantity of methylamphetamine is six grams: see Criminal Code Regulation 2005 (ACT), Schedule 1, Item 44.
Some academic writers have categorised distributors into groups, some three groups of professional, medium, and end-of-the-line dealers: see, for example, R v Di Bitonto [2016] ACTSC 280 at [24]-[25]. As noted (at [25]), Mr O'Neil had a quite pure form of the drug, but had a relatively small quantity, though he did seem to have a reasonably significant customer base. The trace of drug on the digital scales is another relevant factor.
The examination of his phone showed at least six apparent customers. It seems that, as submitted by the Crown in their comprehensive and thoughtful written submissions, that he was probably a low-level to mid-level dealer. He was clearly actively selling methylamphetamine. He did have nine phones, but no implications can be drawn from this. He said that they were broken and he fixes them. There was no contrary evidence to this. The possession of the weapon and CCTV, however, does suggest more than merely low-level dealer.
The evidence as to the likely proceeds from the sale of the drugs found, in particular the methylamphetamine, was understandably unclear. A range was suggested both in the quantities in which it would be sold - a point of a gram, a gram, or an eight-ball - and in the amount likely to be paid - ranging from $50 to $100 for a point, through $200 to $400 a gram, and $600 to $900 per eight-ball.
The amounts of drugs recovered would, if sold in this way, range between $1,530 at one end, to $8,926 at the other end. The lower amounts were for the sale by the eight-ball. Since most of the messages referred to a half ball, it seems likely to me that the amount Mr O'Neil would earn from the sales would be significantly less than the $8,926, but not necessarily at the lowest end estimated by Detective Fleming.
Mr O'Neil was, the evidence showed, not a current user of methylamphetamine, but was a current user of cannabis. The evidence suggested that he was not paid for his work. He regarded himself as “the middle man”. He was described as having “a heavy illicit substance misuse” at the time of the offence and this was a significant factor in the offending behaviour. Greed does not seem to have been a major or significant motivation in this offence.
The unauthorised possession of a prohibited weapon is made an offence by s 5 of the Prohibited Weapons Act1996 (ACT), which provides for a maximum penalty of 5 years imprisonment or a fine of $80,000 or both.
Weapons are clearly dangerous items that are used for violence, conduct that is undesirable in a civilised community. It is, therefore, completely understandable that weapons should be prohibited unless there is a valid reason for the possession of them. An extendable baton has been held to be a less serious weapon amongst those that the legislature prohibits: R v McConnell-Imbriotis [2019] ACTSC 267 at [15].
Further, the section also prohibits use of such weapons and this would make it a more serious version of the offence: R v Papadakis [2017] ACTSC 341 at [37]. It did have the capacity to inflict serious injury and was accessible in the residence. Nevertheless, there was no evidence that it had, or was intended, to be actually used.
Finally, the last offences were the possession of drugs of dependence, in this case one offence of possession of each of oxycodone, morphine, and cocaine. Such conduct is made an offence under s 169(1) of the Drugs of Dependence Act which prescribes a maximum penalty of 2 years imprisonment or a fine of $8,000, or both.
The amounts found were all quite small, the most being 10 pills. The quantities possessed were well below the trafficable quantities for the relevant drugs shown in the Criminal Code Regulation.
Subjective circumstances
Mr O'Neil, born in Canberra 34 years ago, is the youngest of his parents' 4 children. He has lived in Canberra his whole life. He had a positive upbringing, he says, but he also described himself as ‘a naughty boy’ [redacted for legal reasons].
His father drank alcohol heavily but did not use drugs. His mother, unable to cope with her husband's drinking, threatened to leave the family since Mr O'Neil was about 15 years old and finally left home when he was 18. His father went to Queensland, with which Mr O'Neil did not cope well, feeling deserted by his main support.
Mr O'Neill spent some time in school in a behavioural unit from age 9 or 10 for 2 or 3 years. He returned to school but finally left during Year 9.
He has been employed. He was a full time handyman until he was injured in a motor vehicle accident in 2005. He suffered significant frontal lobe damage which resulted in an inflammation disorder and long and short-term memory deficits. Mr O'Neil then continued working on a part time basis, as a casual handyman, and then as a traffic controller since about 2018.
He has a good relationship with his family. A sister, his father and a nephew live in Queensland and he has regular contact with them, as he does with his mother, who lives in Wagga Wagga. He has strong support from his eldest sister who lives in Canberra.
Mr O'Neil has had a long term relationship and had a son with his then partner. His son is now 12 years old and lives with his ex-partner, but has been involved with Child and Youth Protection Services. Mr O'Neil is now in a new relationship and his current partner is a positive support for him.
In addition to the head injury caused by the motor vehicle accident, and the subsequent memory loss from this, he has suffered from depression. He was also shot in his thigh and suffered from Post-Traumatic Stress Disorder relating to this. As a child, he was diagnosed with Attention Deficit Hyperactivity Disorder.
Mr O'Neil has a long and significant alcohol and other drug usage over a long period. He began drinking alcohol at age 16 or earlier and by age 32 was a regular drinker, drinking 4 to 10 standard drinks on each occasion. He continues to drink alcohol.
His major drug use has been of cannabis, which he started using at 8 or 9 years old when he smoked with his siblings. He used cannabis with a bong from about 13 years old and has continued to consume it. He estimates that he spent $10,000 a year on cannabis. He has expressed a reluctance to stop using cannabis, especially were he to be subject to a Treatment Order.
He has briefly used a number of other drugs including speed, MDMA/ecstasy, and cocaine, but has not continued to consume these.
When he was 24 years old, he used methylamphetamine and started to use it regularly for a period of 6 months. He has continued to smoke it for some time but says he last used about six months ago.
Mr O'Neil has had a serious gambling problem, but says that he now has it under control.
He has also smoked tobacco since he was 13 years old, though he has considered giving it up.
Mr O'Neil has had no alcohol and other drug treatment. He did, however, engage with a counsellor or case manager in 2019 for eight telephone sessions, though the details are somewhat vague. He did also have access to counselling from a psychologist for 12 sessions over 3 months in 2020 through Victim Support ACT, apparently following his gunshot injury.
Mr O'Neil has a long and depressing criminal record. [Redacted for legal reasons]. He has a total of 55 offences on his record. These include some serious offences, such as burglary, and he has been sentenced from time to time terms of imprisonment. Many of the offences have been traffic offences, including regulatory offences, though crimes nevertheless. There have, however, been 11 offences of dishonesty on his record. Worryingly for the present situation, he has eight offences of possessing weapons on his record and also one of possessing ammunition. He has a limited number of offences directly related to drugs, such as possessing or cultivating them.
In addition, Mr O'Neil has breached court orders, including as recently as 2019. Indeed, the matters for which Mr O'Neil was sentenced in the Magistrates Court earlier this week, as mentioned above (at [17]), included matters that also breached a Good Behaviour Order for which he was re-sentenced.
Mr O'Neil was also required in respect of these recent matters to attend at the Court Alcohol and Drug Assessment Service for assessment but failed to do so initially. He was, however, subsequently assessed and the Service, in April 2021, found him to be a consumer of cannabis at the relatively high level of two to four cones daily.
It was noted that one of the protective factors for him addressing his drug use was the wish to provide a suitable environment for his son. He has already taken some steps to achieve this wish including disconnecting from old associates.
He did, however, have some difficulty in connection with the preparation of the Suitability Assessment. Initially he was reported as stating repeatedly that he did not want to be on a Treatment Order and was resentful that he needed to cease his cannabis use. Further, he had some initial difficulties in attending appointments. It appears that some of these problems were associated with his memory issues and a degree of disorganisation, much of which is usual for persons leaving custody. He did, however, complete the assessment, but was not always punctual in his appointments. He subsequently used a diary and this seems to have addressed the difficulties.
Mr O'Neil currently lives in a government property in Canberra. An inspection of the property did not disclose any concerns about the property.
Despite seeking a Treatment Order, Mr O'Neil was initially reluctant, as noted earlier (at [44]; [54]), especially to accept the obligations that come with such an Order.
Current sentencing practice
Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to consider current sentencing practice. Part of this has already been addressed in the consideration above of how the courts have assessed the seriousness of the offences to which he has pleaded guilty, especially by identifying relevant matters as aggravating and mitigating (at [19]-[35]).
The current sentencing practice required to be considered can additionally be addressed by reviewing two other matters: the current sentencing statistics, such as recorded in the ACT Sentencing Database, and by reviewing recent comparable cases.
Statistics are informative but have quite limited value because the relevant factors that are measured are quite limited and, hence, do not necessarily give a sentencing court all the relevant factors that are needed to understand why a sentence has been imposed. For example, most of the particular matters of aggravation such as, in this case, the role and motivation of the offender convicted of possessing drugs for supply, or the amount or purity of the drugs present will not be recorded in the Database. That does not, however, mean the limited and broad information is of no value.
In this case, the offence of possessing drugs for supply is recorded in the database. A total of 13 sentences for the offence of possessing drugs for supply have been recorded, of which 11 are sentences of imprisonment; 4 fully suspended; 3 partly suspended; and 4 to be served fully in custody. The periods of imprisonment were for: 12 months in 6 cases; 18 months in 3 cases; and, in the remaining 2 cases, for periods of less than 12 months.
As to possession of drugs, 14 sentences are recorded, 10 of which were sentences of full time imprisonment, each of less than 6 months imprisonment, ranging from 7 days to 6 months, mainly around 1 or 2 months.
A total of 26 sentences were recorded for the offence of possession of a prohibited weapon, which included 16 sentences of full time imprisonment of up to 12 months imprisonment, though 10 were of 6 months or less, and the others were not much more.
Unfortunately, the links to the sentencing remarks in the Database were regrettably absent so it is not possible to consider them. Access to the sentencing remarks is very helpful. Where the cases are comparable, these remarks can give an important insight into the collective wisdom of judges who are required in their remarks to articulate the reasons for sentencing, so that others can identify the principles and relevant factors that lead to the sentence.
Referring to the decisions of R v McConnell-Imbriotis and R v Papadakis concerning the possession of the prohibited weapons has been helpful in this regard. Mr O'Neil has an unfortunate history of committing this offence before. He must not be punished twice for that offence, but factors of specific deterrence and punishment loom larger in that situation and reduces the leniency able to be afforded to him in said in sentencing for that offence.
Consideration
The sentence that a Court must impose on an offender is an instinctive synthesis of the various elements, many conflicting and contradictory, which bear upon the sentence that should be imposed: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611–12; [74]–[78].
In this jurisdiction, that task is assisted by the legislature, which has set out in ss 6 and 7 of the Sentencing Act the objects and purposes of sentencing so that the Court can craft a just and adequate sentence. In this case, the seriousness of drug distribution requires a level of punishment in the sentence which must also denounce the conduct. It will also thereby deter others from committing such offences and thereby keep the community safer.
As noted above (at [64]), the prior commission of the weapons offence requires a degree of deterrence to prevent repetition, which past sentences of some leniency have clearly not previously achieved.
While drug use is by no means victim free offending, it is not easy to identify in this case any clear victims, so vindication and recognising the harm done to victims does not play a large role, although, of course, there is the harm generally to the community.
Given that drug dependency is a pernicious habit which pure punishment rarely deters, opportunity for rehabilitation, if rationally available, should be taken too. This will also assist in keeping the community safe.
Mr O'Neil pleaded guilty to the offences in this Court, so not at an especially early time. The matter resolved, however, at the Criminal Case Conference. It did save time and effort of the Crown and the Court and of witnesses. This justifies recognition: s 33(1)(j) and 35 of the Sentencing Act. The Court of Appeal in R v Nicholas; R v Palmer [2019] ACTCA 38 at [49]–[53], has given some guidance as to the approach to be taken in this case and this shall be followed. It is further accepted that the plea is some evidence, albeit late in the day, of remorse and Mr O'Neil has acknowledged his responsibility for the offending, though it is suggested he has rather minimised his culpability.
When Mr O'Neil committed these offences, however, he had been sentenced on 4 July 2017 for certain traffic offences and the ACT Magistrates Court had sentenced him to a term of imprisonment which was suspended and a Good Behaviour Order made. He was, thus, permitted to be in the community on conditional liberty and the offending breached the trust that this reposed in him. That requires the sentence to be imposed to be somewhat more severe. Mr O’Neil does not, however, have to be re-sentenced for the breach of the Good Behaviour Order as it has already been cancelled.
The nature and circumstances of the offence will also be taken into account. These have been described above in setting out the facts and in considering the offences. Regard has been had to Mr O'Neil's personal circumstances, as described, and his plea of guilty is taken into account, as is that he was on conditional liberty at the time of offending, and all the other matters to which the Court has referred.
In all the circumstances, however, no other sentence than a sentence of imprisonment is appropriate and just: s 10 of the Sentencing Act.
There is, of course, more than one offence. A sentence must be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr O'Neil is not punished twice.
Consideration also must be given to 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 does not feature prominently in this case.
The length of the total term of sentence arrived at has been considered 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 Mr O'Neil to take an effective part in the community and realise his aims and his family relationship when he is released.
This may result in what is seen as a degree of leniency, in that some sentences are made concurrent, but, while the total criminality of Mr O'Neil is an important factor, his growing awareness of the need for rehabilitation is also important, as is the circumstance of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr O'Neil's subjective circumstances and the value of reform to both the community and to himself.
Sentence
[His Honour then spoke directly to the offender]
Mr O'Neil, please stand.
The orders of the Court are as follows:
(1) You are convicted of possessing methylamphetamine with the intention of supplying it and sentenced to 13 months imprisonment, to commence today, 13 August 2021. Had you not pleaded guilty, you would have been sentenced you to 15 months imprisonment.
(2) You are convicted of possessing a prohibited weapon and sentenced to 2 months imprisonment, to commence on 13 September 2022. That is to be wholly cumulative on the sentence for possessing methylamphetamine with the intention of supplying it. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
(3) You are convicted of possessing oxycodone and sentenced to one month imprisonment, to commence on 13 November 2022. That is to be wholly cumulative on the sentence for possessing the prohibited weapon. Had you not pleaded guilty, you would have been sentenced to 35 days imprisonment.
(4) You are convicted of possessing morphine and sentenced to one month imprisonment to commence on 13 December 2022. That is to be wholly cumulative on the sentence for possessing oxycodone. Had you not pleaded guilty, you would have been sentenced to 35 days imprisonment.
(5) You are convicted of possessing cocaine and sentenced to one month imprisonment, to commence on 13 January 2023. That is to be wholly cumulative on the sentence for possessing morphine. Had you not pleaded guilty, you would have been sentenced you to 35 days imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Despite some initial reluctance, Mr O'Neil has requested that a Treatment Order be made. It is necessary, therefore, that this be considered.
It is first necessary to consider whether he is eligible to be subject of a Treatment Order. The relevant considerations are set out in s 12A of the Sentencing Act.
Mr O'Neil has been sentenced to a term of 13 months imprisonment for the offence of possessing methylamphetamine for the purposes of supply. That is more than the minimum period of imprisonment to which an offender must be sentenced in order to be eligible, namely 12 months. The total sentence of 18 months imprisonment is less than the 4 years imprisonment, which is the maximum period for which a sentenced offender remains eligible.
As noted above (at [17]; [51]), the outstanding offences have now been dealt with in the ACT Magistrates Court where Mr O'Neil has been sentenced to a series of Good Behaviour Orders. As these are not sentencing orders for the purpose of s 12A(9) of the Sentencing Act and he is not subject to any other sentencing orders, this provides no bar to his eligibility.
The Court can be satisfied that Mr O'Neil will be resident in the ACT for at least the next 18 months.
It is also clear from the Pre-Sentence Report and the Suitability Assessments that Mr O'Neil has a severe substance use disorder which means that he has a dependency on illicit drugs, specifically cannabis and methylamphetamine, and that this dependency substantially contributed to his offending on this occasion.
The Court is also satisfied that the Treatment Order Regime has been explained to him and that he has had an opportunity to ask any questions about it and has had any such questions answered. As such, the Court can be satisfied that he has given informed consent to the making of a Treatment Order.
Accordingly, Mr O'Neil is eligible to be subject to a Treatment Order.
The Court has carefully read and considered the Pre-Sentence Report and the Suitability Assessments referred to above (at [7]; [54]; [86]). They have been carefully and, as always, professionally and comprehensively prepared. They are most valuable in enabling the Court to make this important decision as to whether a Treatment Order should be made.
Each of the Suitability Assessments recommend that Mr O'Neil is suitable to be subject to a Treatment Order. The Crown, however, in its thoughtful written submissions, has raised concerns about whether such an Order is ultimately appropriate.
Reliance is placed on Mr O'Neil's reluctance to engage with such an Order and the concerns expressed about his ability to comply. Reference is also made to Mr O'Neil's background of engaging in further offences while on conditional liberty. The terms of a Treatment Order include a period of conditional liberty. The Crown has also pointed to his prior unsatisfactory responses to supervision and to his expressed resentment for the requirement in such an Order to be abstinent from alcohol and cannabis for the currency of the Order. He has, the Crown submitted, been dishonest in relation to his drug used and returned positive urinalysis in February and March 2021 and engaged poorly with the Court Alcohol and Drug Assessment Service by failing to attend appointments and at Karralika Therapeutic Community.
These matters have been carefully considered. It can be accepted that, until a person who is drug dependent has satisfactorily addressed that dependency, he or she is likely to reoffend. That is the nature of the unaddressed dependency. It is not so clear that, in the circumstances, this is a contraindication to the making of a Treatment Order. A failure while he is subject to the Order and provided with therapeutic assistance and professional support will result in sanctions or even cancellation.
While Mr O'Neil has expressed dissatisfaction with the conditions of a Treatment Order and, in particular, the abstinence requirements, he can withdraw from the process at any time. Again, a failure to comply with those conditions will result in sanctions or cancellation and he may prefer to serve the term of imprisonment instead.
The regime proposed is one in the community. That is both riskier than a residential drug rehabilitation, but also less restrictive. It is possible, subject to availability, for the order to be varied to provide for residential drug rehabilitation if that proves necessary.
Ultimately, Mr O'Neil did seek that a Treatment Order be made and there is no reason not to make one because of his expressed reluctance. He has, after all, been a regular user of cannabis for about 26 years, a long time for a habit to become ingrained and unsurprising that it would be an easy way of life. It would not be an easy way of life to give up. In neither Suitability Assessment was the opinion recorded that his reluctance would render him unsuitable.
Alcohol and Drug Services has prepared a comprehensive Case Plan which appropriately and satisfactorily addresses the challenge that Mr O'Neil would need to confront if he is to seek to come to terms with the current criminal and drug lifestyle. A wish to be able to re-establish a proper relationship with his son, especially in the light of the Child and Youth Protection Services concerns, is likely to be a relevant motivator, as is his expressed concern about imprisonment. There are, of course, no guarantees, and the process will have to play out.
Finally, there are no apparent indicators of unsuitability as set out in Table 46K of the Sentencing Act that would make Mr O'Neil unsuitable for a Treatment Order.
Accordingly, Mr O'Neil is suitable for a Treatment Order and that it is appropriate that one be made.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
Mr O'Neil, please stand.
The Court further orders the following:
(6) A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for 15 months from today, 13 August 2021, to 12 November 2022 in respect of the primary offence of possessing methylamphetamine for the purpose of supply, of which you have been convicted and for which you have been sentenced to 13 months imprisonment.
(7) That Order is extended to the offences of possession of a prohibited weapon, possession of oxycodone, possession of morphine and possession of cocaine, of which you have also been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(8) I note that the convictions for the primary offence and each of the 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, 13 August 2021, to 12 February 2023.
(10) Under ss 22 and 80Z(a) of the Crimes (Sentencing) Act 2005, you are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 13 November 2022 to 12 February 2023, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you including as to urinalysis, counselling and treatment.
(11) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, as the Court orders:
(a) The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
(b) You are directed to undertake any program, treatment, or counselling, urinalysis, or case management that may be required by any member of the Treatment and Supervision Team, or the Court, and obey all reasonable directions of any member of that team or of the Court about where you reside, with whom you associate, and attendance on them from time to time;
(c) That you comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(12) You are directed to appear in Court on 20 August 2021 at 11:30 am.
(13) You are directed to attend the Court Registry before you leave the Court precincts today and sign a sealed copy of this Order, the Good Behaviour 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.
Mr O'Neil, that is a lot of words, a lot of legalese, and, although you have been around the courts now long enough to probably understand most of what has happened, I am obliged to explain to you what I have done.
I have decided that, although these are not the most serious offences in the world, they are, particularly given your history, nevertheless serious offences and altogether justify a term of imprisonment of 18 months.
I do not, however, require you to serve any of that because the sentence is now completely suspended upon you undertaking to comply with the obligations of the Treatment Order.
The one that you are most worried about is having to be abstinent from cannabis and alcohol for the period of that Order, which is 15 months from today. If you cannot hack that, come back and see me and we will see what can be done. Basically, however, if you want the privilege of not going to gaol and you actually want to get your life in order, you must commit to abstinence.
We realise that you are a human being and that is going to be difficult. We do not smack you down every time that happens but there are no leniencies there. You have got to commit to this and work hard at it.
If you do, then the benefits are very substantial. The benefits are substantial to you because you will find your life and future will be better, for you, your son, your partner - if that continues and she remains your partner – and, of course, the community. The benefits will be substantial.
These are the significant advantages of you going down this path, but it will take effort. It is not easy. 26 years of using cannabis day in, day out is something that has become a deeply ingrained habit and it will be difficult to manage. It can be done – this Court has seen it.
If you really want it, you have come to the right place. This Court will support you strongly in that desire. There are a range of people who are experts in this field who will also support you along the way, but you have got to cooperate with them. You have got to work with them and make sure that this works out. You will talk to your case manager and counsellors as to how to go forward with this.
You will be required, from next Monday, to attend Court and provide urine for analysis on Monday, Wednesday and Friday. Next Friday, you will come back to me and we will have a chat about how it is going, any challenges that you have got that you need addressing, any difficulties that you are meeting, and any lapses that you have had where I might need to sanction you.
The sanctions are various. Usually, we give you what we call a point, which represents a day in custody, but you do not have to spend that time in custody until usually we get to seven days. Then, if you just have not engaged well enough, if you have lapsed, if you keep using, then you might have to spend 7 to 14 days in prison.
Beyond that, if you really just give up, either because you do not want to do it anymore or because you are just not hacking it, I can cancel the Order and send you to gaol for all or part of the 18 months.
If you are committed, keen, and willing, then work with the Treatment Order team and they will tell you what work you need to do. They will aim to bring you into not just a drug free lifestyle but also a crime free lifestyle - one which reintegrates you back into the community. That will be good for you. It will make you feel good about yourself and also contribute to the community. That is important.
At this stage, it was proposed that your rehabilitation could begin in Arcadia House. There are difficulties at the moment because of the lockdown. At the moment, you will be involved in planning your case management, talking with case managers about what your plan is, how you are going to achieve it and how things are going. You will also be required to attend some groups, mostly through audio-visual means, like SMART Recovery and other groups, perhaps Narcotics Anonymous and others which are suitable for you.
At the moment, the proposal is for a 15 month Treatment Order. There are then three months at the end which you are subject to a Good Behaviour Order with supervision to help you reintegrate back into the community. That will give you time, but if you wish, you can graduate from this and if you graduate, that is a good sign that you have really made it.
It is really important for you to understand at least two important things.
The first is that it is critical to your rehabilitation that you be honest. You have got to be honest with yourself and you have got to be honest with your counsellors. It is hard to be honest with yourself, because our self-esteem means that often we make excuses for ourselves, and you have obviously done that in the past. You have hidden some of your drug use I suspect some of it is based on the thought that, “I can give up any time. I just do not want to.” This Court has seen it is much more difficult than that - you need actually to confront those challenges to then be honest with your counsellors and your case managers. If you do that, then we can actually move forward and help you.
The second is that, initially, you will be coming back to see me every week. That is an opportunity for me to see how you are going, to adjust the way in which you are going if we need to, to ensure that we are all working towards your rehabilitation and your ability to return to the community without stepping inside the Alexander McConachie Centre at all, if that is really what you want to do, and to reintegrate with your son and to provide a role model for him which, at the moment, you are not doing and you need to work on it and improve.
If things get tough, then raise issues with me. Judges are pretty powerful people in lots of ways. I cannot solve everything. I do not promise to do that. It is amazing, however, what I can either assist in solving or alternatively know where there is someone who can help you to solve a problem. Sometimes they just cannot be solved and we have got to suck them up. If we do that, if you do it sensibly and properly, that process will make you stronger and will give you the strength that will enable you to remain drug and crime free and reintegrate back into the community.
One of the worst things you could do is to run away and to say, “No, I give it all up”. Although you are in the community, rather than custody, I can tell you no one who has run away from the program has not been caught either to resume the program or end up back in the AMC. The likelihood of you being the first to disappear forever is very, very remote. Of course, you are never going to do that if you are committed to your son anyway.
If there are problems, come back and let us have a talk about it. You will get close to your case manager and they will understand what is going on. They cannot necessarily agree with everything you say and sometimes they will think that you need to be sanctioned or need a different approach than you think, but they are always there to help you try and make it work. Talk with them.
If it is getting difficult, come and talk with me. One of the options may be, if it is really not working in the community, that we can find you a place in a residential drug rehabilitation agency. Lots of people have gone through there. Lots of people have done very well, some have done disastrously. I cannot say it is all perfect but sometimes they do very well and sometimes that is just the impetus and the environment and the circumstances that you need in order to make it.
So that is what the future holds for you now. I understand that you were reluctant, I understand you think, “why do I have to stop smoking cannabis? Why do I have to stop drinking alcohol?” The answer is, if you want a future away from crime and gaol, then you have to start committing to that and complying with the conditions that the Court imposes.
I genuinely wish you luck. I hope this works. The lives of a number of people who have worked through Drug Courts all over the world have been transformed – making a big difference to themselves, their families and their communities.
That is the journey on which you are now embarking and, if you are committed to it, then it will work very well for your benefit. If you are not, we will give this opportunity away and you will spend your time serving out your sentence.
I hope it works out. I wish you every luck. I look forward to seeing you on Friday and thereafter every week to see how you are going and ensure that you have every opportunity to succeed in this, as long as you put that effort in yourself.
You may be seated.
| I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Associate: Date: 27 September 2022 |
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