R v Pearce (No 2)
[2022] ACTSC 71
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pearce (No 2) |
Citation: | [2022] ACTSC 71 |
Hearing Date: | 31 January, 30 March 2022 |
DecisionDate: | 8 April 2022 |
Before: | McWilliam AJ |
Decision: | See [63]-[64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – trafficking in a controlled drug other than cannabis, namely heroin – dealing with the proceeds of crime – where substance abuse impacted offending |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 35, 35A, 57, 80W, 80Y, 80Z, 85, Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Cranfield v The Queen [2018] ACTCA 3 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Adam Pearce (Offender) |
Representation: | Counsel S Janackovic (Crown) M Kukulies-Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Numbers: | SCC 238 of 2021 SCC 239 of 2021 |
MCWILLIAM AJ:
On 14 October 2021, the offender, Mr Adam Pearce, pleaded guilty to the following charges:
(a)CAN 2021/1801 (Charge 1): trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code), which carries a maximum penalty of 10 years’ imprisonment, a fine of $160,000, or both; and
(b)CAN 2021/10231 (Charge 2): dealing with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT) (Crimes Act), which carries a maximum penalty of 2 years’ imprisonment, a fine of $32,000, or both.
Pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) the offender requests that a further two offences be taken into account on sentence for the trafficking charge:
(c)CAN 2021/5718: possessing a drug of dependence, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act), which carries a maximum penalty of 2 years imprisonment, a fine of $8,000, or both; and
(d)CAN 2021/5719: possessing a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act), which carries a maximum penalty of 5 years imprisonment, a fine of $80,000, or both.
I will refer to these offences collectively as the “Scheduled Offences”.
The facts
The facts below are drawn from a statement of agreed facts before the Court. They are set out in some detail to assist in understanding the offending if the need arises in the future.
On 4 January 2021, pursuant to warrants issued in relation to an address in Taylor where the offender was living with his partner, a Grey Mazda carrying registration RX8 YKF03U, and the offender himself, police located the following items:
·A Tupperware container tightly wrapped in grey electrical tape, containing a substance which a presumptive test showed to be heroin;
·A roll of grey electrical tape that appeared to match the grey electrical tape wrapped around the Tupperware container;
·A crossbow in a black plastic case;
·Three clip seal bags containing a crystalline substance suspected to be methylamphetamine;
·A clip seal bag containing a substance believed to be heroin;
·Two blister packs of Valium 5 milligram tablets;
·Two Oppo mobile telephones;
·Water balloons, freezer bags, clip seal bags and digital scales; and
·$106,090 cash across various locations.
The contents of the Tupperware container were analysed by the ACT Government Analytic Laboratory. Three separate amounts of powdery substance were found to contain heroin:
(a)ACTGAL identifier FC21-0043-A was found to weigh 115.224g. Heroin was detected at 68.9% as the base of the powdery substance.
(b)ACTGAL identifier FC21-0043-C was found to weigh 15.067g. Heroin was detected at 36% as the base of the powdery substance.
(c)ACTGAL identifier FC21-0043-G was found to weigh 40.001g. Heroin was detected at 17.6% as the base of the powdery substance.
The approximate price ranges for the street value of heroin in the ACT were agreed as follows:
(a) ½ point (0.05g): $50 - $60
(b) Point (0.1g): $70 - $100
(c) ½ weight (0.4g - 0.6g): $100 - $200
(d) 1 gram: $400 - $500
(e) Eight ball (3.5g of 1/8 ounce): $1,000 - $1,300
Depending on the amounts sold (either individually or in bulk), the value of the quantities involved here is as follows:
(a)FC21-0043-A: $23,044 - $138,268;
(b)FC21-0043-C: $3,013 - $18,080; and
(c)FC21-0043-G: $8,000 - $48,001.
The two substances suspected of being methylamphetamine were also analysed by the ACT Government Analytic Laboratory. Methylamphetamine was detected. The total weight of the substance was 1.727g.
During the search warrant, the offender participated in a record of interview and made a number of admissions:
·The balloons, bags and rubber bands were used to “make up deals”, which were made up on the living table;
·The offender conducted his dealings by communicating on the phone, and people seeking drugs from him were “pretty blatant” about what they wanted;
·The offender’s only source of legitimate income was Centrelink benefits, on which he has been receiving approximately $700 per fortnight for two or three years, and on a periodic basis before that;
·The source of the money found concealed in the speaker (approximately $80,000), on the shelf and on the offender’s person (approximately $10,000) was from selling drugs; and
·The offender estimated a profit of $80,000-$90,000 per fortnight from selling drugs.
Objective seriousness
When considering the seriousness of the offender’s conduct, the sentencing court assesses where the facts of the particular offence and offender lie on the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. That task is objective and is undertaken without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
Charge 1: the trafficking offence
Factors relevant to an assessment of objective seriousness in offences such as this were discussed by the Court of Appeal in Buiv The Queen [2015] ACTCA 5 at [41] and R v Zdravkovic [2015] ACTSC 393 at [24], endorsed on appeal in Zdravkovic v The Queen [2016] ACTCA 53 (Zdravkovic) at [39]-[42]. Without repeating the authorities from which the factors are drawn, they include the following:
(a) The role of the accused is an important consideration; those whose level in the operation is at a higher level of the hierarchy being more culpable.
(b) While the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects.
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter.
In relation to the first of those factors, in Zdravkovic at [40] the Court of Appeal stated that it may be more accurate to say that an offender’s role is to be determined by examining what is known about the offender’s conduct.
Applying these to the present offender’s conduct, he engaged in a lucrative drug dealing business in which he had an ability to turn a profit of $80,000-$90,000 within a fortnight. This is supported by the quantity of heroin and cash in his possession. If a label were to be attached, the role he played appears to have been as a mid-level dealer.
The quantity of heroin the subject of the offence is significant. It was approximately 170g which was thirty-four times the trafficable quantity, being 5g: see schedule 1 of the Criminal Code Regulation 2005 (ACT) (Regulation). The heroin was worth between $34,057 and $204,349 (depending on the weight sold), the equivalent of 1702 individual deals (if sold at a point). The offender’s legal representative sought to put that into perspective, by pointing to the commercial quantity in the Regulation as being 2.5 kg. I took that submission to be simply that although significant, the amount involved was far from a “commercial” quantity. I consider that argument to be of limited assistance because trafficking in a commercial quantity is a separate offence under s 603 of the Criminal Code, with a heavier penalty.
The offender’s motivation to sell the heroin was accepted as being to fund his own drug habit. However, in light of the conceded profit per fortnight, the conduct goes beyond solely sustaining a personal drug habit. The parties agreed there was a profit element to the trafficking conduct.
These factors indicate that across the spectrum of conduct for this category of offence, from the least serious instances of the offence to the most serious, the offender’s conduct falls somewhere in the mid-range.
Charge 2: Dealing with the proceeds of crime
In R v Cole [2019] ACTSC 228 (Cole), Murrell CJ was considering factors relevant to the commission of a money laundering offence pursuant to s 114B of the Crimes Act, which includes an additional mental element (and heavier penalty) not present in an offence under s 114C. However, some of the factors relevant to assessing the objective seriousness of conduct for offences under ss 114B and 114C clearly overlap and to that extent, I accept the Crown’s submission that it is appropriate to have regard to what was said there.
The factors that I consider to be relevant in assessing the offender’s conduct in dealing with the proceeds of crime are the purpose of the dealing, the duration of the conduct, and the nature and value of the proceeds.
The offender’s conduct here involved possession of money, the money was derived directly from the commission of a serious offence, namely, heroin trafficking, and further, the amount, purpose, and source of the cash lead to the inescapable conclusion that, in context, the conduct (or “dealing”) was not an isolated or transitory instance. The amount involved ($106,090 in cash) was, on any view, substantial.
In Cole, the Chief Justice noted (at [18]) that unlike provisions in some other jurisdictions, the ACT legislation does not reference penalties to the value of proceeds of crime. In light of the very broad range of conduct and unlimited value of proceeds that is covered for conduct falling within the offence under s 114C, while the above factors plainly mean that the offender’s conduct here was not at the minimum end of the spectrum, I have not found it useful to attempt to label the conduct or make any specific finding by reference to a particular “range”.
The Scheduled Offences: possession of a drug of dependence and possession of a prohibited weapon
The Court is to take these offences into account in making a sentence-related order for the principal offence (namely, trafficking heroin) pursuant to s 57 of the Sentencing Act.
In R v Campbell [2010] ACTCA 20, the Court of Appeal considered how scheduled offences are to be “taken into account” at [46]-[50]:
[46] Section 57(3) of the Sentencing Act further provides that any penalty imposed for the offence for which Ms Campbell appeared for sentence cannot exceed the maximum penalty for that offence, notwithstanding that the additional offences are taken into account.
[47] Spigelman CJ has explained how a court is to take such offences into account in R v Barton (2001) 121 A Crim R 185 where (at 195 [64]) his Honour said:
The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
[48] This is, obviously, constrained by s 57(3) of the Sentencing Act and by other relevant principles of sentencing, such as the principle of totality set out in Mill v The Queen (1988) 166 CLR 59.
[49] When taking these offences into account, it is not necessary for the court to indicate precisely what effect the taking of them into account has on the sentence that is imposed.
[50] When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which he gives to additional offences taken into account in that way, but it is not obligatory for him to do so.
Here, the offender possessed 1.727g of methylamphetamine. The trafficable quantity of methylamphetamine is 6g: see schedule 1 of the Regulation. While a crossbow is an objectively dangerous weapon, possession is a less serious breach of s 5 of the Prohibited Weapons Act than use: see R v Pearce [2018] ACTSC 140 (R v Pearce) at [14]. It is also necessary to take into account the nature of the weapon, having regard to the other weapons covered by the same offence: see R v Cichacz [2022] ACTSC 28 at [10]. Having regard to the range of prohibited weapons, this is a weapon which is more serious than some (such as such as batons and slingshots) and less serious than others (such as bombs and grenades). The weapon was located within the offender’s private residence (rather than being carried in a public place).
I have taken these offences into account in the sentencing process and ultimate penalty imposed, including the factors to which I have referred as relevant to their level of objective seriousness above.
Subjective circumstances
The subjective circumstances are largely contained in a Pre-Sentence Report (PSR) that was before the Court. Some aspects of the offender’s subjective circumstances are also described in the published reasons for sentences made in relation to this offender on occasions he was previously before the Court: see R v Pearce at [15]-[23], and The Queen v Pearce (Supreme Court of the ACT, Burns J, 22 September 2011) (The Queen v Pearce). Facts included in earlier sentences are not taken as established facts here, but the offender’s history and subjective matters are drawn upon by the PSR author and to that extent, the historical subjective features in those cases have some bearing on the present considerations.
The offender has also put before the Court a number of letters, including letters written by the offender and his partner.
Family circumstances and relationships
The offender is 39 years old. He is the eldest of three children and recalled a positive upbringing, stating he maintains a close relationship with his family (noting his parents reside in the United Kingdom).
He has been in a de facto relationship with his current partner for three years, they plan to marry, and are expecting their first child imminently. The offender’s partner confirmed their relationship as supportive, and they are looking forward to their future as parents. To this end, the offender and his partner have undertaken a birth and newborn parenting and first aid course.
Notwithstanding these subjective features, the offender has not to date surrounded himself with people who will raise him up. He informed the author of the PSR that most of his companions were involved in criminal behaviour. However, the offender has “remained aloof” from these companions since leaving rehabilitation and has re-focussed his energy onto the needs of his pregnant partner and put his efforts into developing his business, through which he is creating pro-social relationships.
Education, employment, and financial circumstances
The offender completed Year 12 at school and has completed further education in hospitality. He has worked primarily in hospitality positions. More recently, the offender has become self-employed as an appliance repairer, working in tandem with an existing repairer with 25 years of experience. The offender’s letter to the Court detailed the support offered by both his employer and his parents in taking steps to establish a “sister business” to his employer’s. The offender reported that his current wages were sufficient for his lifestyle, and he has no financial difficulties.
Living circumstances
At the time the PSR was prepared, the offender lived with his partner in an emergency rental unit in the ACT. Although the area is high density and known for problematic drug use and offending behaviour, the offender maintained that he and his partner were able to keep to themselves and had not experienced any issues. Looking into the future, the offender believed he would source new accommodation as his business developed into a more secure financial footing (which I understand to mean the offender is concerned to ensure continuity of an ability to pay rent).
Alcohol and drug use
The offender has a significant history of alcohol and drug use. He commenced using heroin at age 13, primarily smoking on an irregular basis, before increasing to weekly use by the age of 15, when he started to inject the drug. By the age of 19, he was consuming one half a gram of heroin daily. The offender also admitted to methamphetamine use in the past, but only when heroin was unavailable.
Criminal history, attitude to offences and prospects of rehabilitation
The offender has an extensive criminal history in the ACT, relevantly including:
(a)Two entries for trafficking a controlled drug: the first in 2009 (for which he received periodic detention and a suspended sentence) and the second in 2017 (for which he received a full-time custodial sentence);
(b)Two entries for proceeds of crime occurring in 2003 (for which he received a GBO) and in 2017 (for which he received a full-time custodial sentence);
(c)Thirteen entries for possessing a prohibited weapon, firearm or knife occurring between 2002 and 2017; and
(d)Eleven entries for possessing a prohibited substance or drug of dependence occurring between 2003 and 2017.
It is clear that the offender’s relevant and recent criminal antecedents deprive him of opportunities for leniency, as they do suggest that his previous custodial sentences have not had any personal deterrent effect. I do bear in mind, however, the likelihood of the offender’s drug addiction being such that he is unable to break away from criminal conduct and escape history repeating.
As to remorse for his offending, the PSR author reported a lack of an ability to articulate remorse, other than to point out his present efforts in providing his partner and unborn child with a stable and legitimate lifestyle. According to the PSR author, the offender was unable to identify any potential victims to his offences. Subsequently in the offender’s letter to the Court, the offender has written about his guilt for his actions, stating that he keeps his empathy for victims in the back of his mind all the time, as that helps him stay on track. It also helps him to remember where using drugs leads him.
The offender has attempted rehabilitation on multiple occasions. He completed a residential rehabilitation program with Karralika in 2018, after which he reports “staying clean” for approximately nine months. He has completed a number of community-based and residential rehabilitation programs, including while incarcerated, but it is clear he has not had long-term success in remaining drug-free. After his most recent engagement with rehabilitation between June and August in 2021, he is reported not to have consumed any illicit substances. It is encouraging that he continues to engage in drug and alcohol support and counselling.
The PSR author assessed the offender as a medium-low risk of general reoffending.
Plea of guilty and time in custody
The offender pleaded guilty to the two primary offences on 14 October 2021 in the ACT Magistrates Court. The plea was entered at the seventh mention, following negotiations between the parties. The offender has not spent any time in custody in relation to these offences.
The applicable discount is a question of discretion, and the Court’s primary policy consideration is the utilitarian value of the plea: see Cranfield v The Queen [2018] ACTCA 3 at [37]-[38].
In relation to the proceeds of crime offence (Charge 2), the Crown accepted that the circumstances entitled the offender to a 25% discount for the plea. I am satisfied that a 25% discount is appropriate under s 35 of the Sentencing Act.
In relation to the trafficking offence (Charge 1) it was initially contested. The offender subsequently pleaded guilty before the matter was committed. As such, the Crown accepts that the offender is entitled to a discount, albeit of a lesser quantum than had he pleaded guilty at an earlier opportunity. The prosecution’s case was strong, and I think I would have to say overwhelmingly strong, which has consequences for what discount may be applied under s 35 of the Sentencing Act, but there was still utilitarian value. In part the strength of the case was due to the offender’s cooperation and admissions during the search. No one submitted that this meant s 35A of the Sentencing Act had a role to play but I consider that whether the circumstances of the case fit within s 35 or s 35A, or both, a 20% discount on sentence for the trafficking offence is appropriate.
Current sentencing practice
The Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced (see s 33(1)(za) of the Sentencing Act), though the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520.
The parties have assisted the Court by providing numerous comparative cases. Although I have had regard to them, I do not consider it useful to set out any detailed comparison here for two reasons. The first is this particular offender’s history and the second is that the majority of the cases predate the availability of a Drug and Alcohol Treatment Order (DATO). What options are available to a sentencing court plainly affect what decisions are made in order to properly take account of the criminality while at the same time promoting rehabilitation if possible.
A recent decision is that of Murrell CJ in R v Hyde [2020] ACTSC 301, where the offender was sentenced to 13 months and 14 days’ imprisonment for trafficking methamphetamine, contrary to s 603(7) of the Criminal Code, and four months and 14 days’ for an offence against s 114C of the Crimes Act, to be served by way of a suspended sentence. The offender was 40 years old, and had a criminal history, including a previous conviction for both offences, and had a lengthy history of substance abuse. The offender had also been assessed as suitable for a DATO, however, at the time of sentence, was part-way through a residential rehabilitation program and it was considered appropriate to proceed by way of a suspended sentence so as not to disrupt the offender’s rehabilitation path and preserve the resources of the Drug and Alcohol Sentencing List.
It is appreciated that sentencing statistics may be of limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. With that caution, the statistics taken from the ACT Sentencing Database indicate that:
(a)In relation to an offence of trafficking a controlled drug other than cannabis, 50% of offenders received a sentence of full-time imprisonment; the bulk of the remaining sentences involved a fully or partially suspended sentence. For those sentenced to full-time imprisonment, 50% of those sentences fell in the range of 18 months to 2.5 years’ imprisonment. In relation to offenders with a criminal history for the same type of offence when a custodial sentence had been imposed, 68.8% of those offenders were sentenced to a term of full-time imprisonment, and 72.8% of those sentences fell in the range of 18 months to 2.5 years’ imprisonment.
(b)In relation to the offence of dealing with the proceeds of crime, 42.9% of offenders received a sentence of full-time imprisonment; the bulk of the remaining sentences involved a fully suspended sentence or ICO. For those sentenced to full-time imprisonment, all sentences imposed were 6 months’ imprisonment.
Previous relevant cases specifically dealing with the offender
I have read the sentences imposed on the offender when he was previously before this Court: see The Queen v Pearce and R v Pearce.
When the offender was before Burns J for one count of trafficking 2.718g of heroin, he was sentenced to 9 months’ imprisonment, with 3 months to be served as periodic detention and 6 months to be suspended.
When the offender was before Mossop J, he was sentenced to 22 months and 15 days’ imprisonment for trafficking 279.272g of heroin and 3 months and 21 days’ imprisonment for dealing with the proceeds of crime, both to be served by way of full-time custody. Mossop J declined to impose an intensive corrections order, considered it was more appropriate to take into account the period of pre-sentence custody and imposed a shorter non-parole period so as to permit a longer period of supervision on parole (at [32]):
… because, it appears to me that the principal criminogenic factor is drug use and that, if that has been successfully addressed in prison or through residential rehabilitation on release, then there is a benefit in shortening the time to be served and lengthening the period on parole.
Counsel for both parties considered the offender’s criminal history disentitles the offender to the degree of leniency which may have otherwise been afforded to him. It is evident that the offender is a recidivist when it comes to the type of offending which brings him before the Court today. It is also evident that the offender has been afforded a degree of leniency in the past, largely in light of his motivation to rehabilitate himself and the clear link between his offending and his longstanding issues with addiction: see R v Pearce at [27] and [32], and The Queen v Pearce.
The Crown submits, and counsel for the offender concedes, that the Court should be guarded about the offender’s prospects of rehabilitation, noting he has been given opportunities by the Court to address his substance abuse issues in the past, and has nevertheless relapsed and reoffended. As noted by Mossop J in R v Pearce at [27], when the offender was sentenced for similar offending in 2018:
He has, in the past, attempted rehabilitation with some success for periods of time. However, his heroin use is very long-standing. He has been the subject of criminal penalties designed to deter him from drug use in the past and those criminal penalties have not been successful.
When the offender was before Burns J for sentence in The Queen v Pearce, again for this kind of offending, his Honour commented:
I note that… the prisoner has undertaken programs to deal with the issue of drug addiction with varying degrees of success. He is now on a methadone program and urinalysis over the last month at least indicates that he is not taking any drugs other than methadone.
I accept… that [the offender] was involved in dealing in the substance in order to supply his own habit. That, of course, is not an excuse for his behaviour but it may provide some explanation such that the Court could have some satisfaction that if the prisoner’s heroin addiction is appropriately treated there would be a corresponding reduction in the likelihood of offending…
His Honour went on to state that, were it not for the offender’s progress and attitude towards rehabilitation, he would have imposed a term of full-time imprisonment, rather than a sentence to be served by way of periodic detention. He informed the offender that “this will be [his] very final chance to get [his] act together.”
Coalescence of the above considerations
Both parties agreed that the offences before the Court are serious, and ordinarily carry a period of imprisonment: R v Di Bitonto [2016] ACTSC 280 at [88]. It was not disputed here that a sentence of imprisonment is the only appropriate sentence with respect to the offences and I agree with the parties’ position. The question becomes how long, and how such a term should be served.
The maximum penalty for offences provides a yardstick for the sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].
In light of the above and the seriousness of this kind of offending, the Crown submits that the primary sentencing purposes in the present matter would be general deterrence, denunciation, punishment, protection of the community and specific deterrence. Although the Crown concedes rehabilitation is a relevant sentencing factor, it considers the only appropriate sentence is a term of full-time imprisonment and not the imposition of a DATO.
Counsel for the offender submits that disposition by way of a DATO is the appropriate outcome, having regard to the correlation between the offender’s drug use and his offending, and his current prosocial supports which are significant. While the offender has been in a similar position facing sentencing for similar offences before, on both occasions the offender was last before this Court for sentence, a DATO was not available as a sentencing option.
In the case of this offender, I accept that his motivation to engage in rehabilitation is genuine and has been on all previous occasions when he has been before this Court for sentence. I also accept the submission that, although he has been offered leniency on this basis before, he has never been through the program imposed on an offender when sentenced to a DATO.
It is important to understand that a DATO is not a “soft option” on a sentence. It obviously does not involve the deprivation of liberty necessitated by a full-time custodial sentence. However, it is intensive, requires commitment and hard work to succeed, and often participants find the process more difficult than a term of imprisonment. Such an order is only made after a careful assessment process and it is highly relevant here that terms of imprisonment in the past have not resulted in the offender successfully refraining from criminal behaviour, due to his addiction issues. A DATO targets this type of offender (among others). That is, a recidivist who is likely to be in and out of prison for the rest of his life without serious, intensive, Court supervised, intervention. The successful rehabilitation of this offender is fundamental to reducing his risk of re-offending and that is how I consider ultimately the community would be best protected.
Accordingly, I consider the imposition of a DATO to be the appropriate course.
Structure of the sentence
I accept the Crown’s submissions that there should be a substantial degree of concurrency between the sentences for the two offences, given that the proceeds of crime wholly arose from the trafficking enterprise.
In relation to the making of a DATO, I note that the requirements of s 12A are satisfied. I have read the Suitability and Eligibility assessments prepared for the Court, which recommend that the offender is suitable to be subject to a DATO, on the condition that his accommodation is assessed as suitable. I note that a case plan has been prepared.
Having regard to the restrictive terms of s 12A(2) of the Crimes (Sentencing) Act 2005 (ACT), which refer to the need to “fully suspend” a sentence of imprisonment when a drug and alcohol treatment order is made, I impose the following sentences:
1. In respect of charge 1, trafficking in a controlled drug other than cannabis (CAN 2021/1801), the offender is sentenced to 3 years and 4 months’ imprisonment (reduced from 4 years and 2 months on account of his plea of guilty), to commence on 8 April 2022 and end on 7 August 2025.
2. In respect of charge 2, dealing with the proceeds of crime, (CAN 2021/10231), the offender is sentenced to a term of imprisonment of 7 months and 15 days (reduced from a term of 10 months on account of his plea of guilty), to commence on 23 February 2025 and end on 7 October 2025.
3. The total sentence is 3 years and 6 months.
Drug and Alcohol Treatment Order
I make the following orders:
1. A Drug and Alcohol Treatment Order (Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for the offender for 2 years, commencing on 8 April 2022 and ending on 7 April 2024, in respect of the primary offence, for which he has been sentenced to 3 years and 4 months’ imprisonment.
2. The Order is extended to the offence of dealing with the proceeds of crime, which is an associated offence of the primary offence.
3. The convictions and sentences for the primary offence and associated offence are incorporated into the Order in the custodial part of the Order.
4. The custodial part of the Order for the primary and associated offences is suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 8 April 2024 to 7 October 2025.
5. Pursuant to s 80ZA, the offender is directed to sign an undertaking to comply with the Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 8 April 2024, until the end of the total sentence, 7 October 2025, 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.
6.For the treatment and supervision part of the Drug and Alcohol Treatment Order:
a. The core conditions of the Order set out in ss 80Y and 80Z(2)(f)-(g) of the Crimes (Sentencing) Act 2005 (ACT) are imposed;
b. The offender is directed to reside at the nominated residence for the duration of the Drug and Alcohol Treatment Order and to remain at that place of residence from 7:00pm each day until 7:00am the next day except in the case of a medical emergency and to present at the door of the residence to a police officer who requests it between those hours;
c. The offender is to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and
d. The offender is to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
7.The offender is directed to appear in Court on Thursday 14 April 2022.
8.The offender is directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this 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.
9.I direct that written notice of the order, together with a copy of the order, is to be given to the offender.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Zoe Sanders Date: 8 April 2022 |
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