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R v Pearce (No 2)

R v Pearce (No 2)

Case [2022] ACTSC 71 8 April 2022

Sentencing

Drug and Alcohol Treatment Order

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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, Crimes Act 1900 (ACT) ss 114B 114C Criminal Code 2002 (ACT) s 603 Criminal Code Regulation 2005 (ACT) sch 1 Drugs of Dependence Act 1989 (ACT) s 169 Prohibited Weapons Act 1996 (ACT) s 5
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Cranfield v The Queen [2018] ACTCA 3 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Campbell [2010] ACTCA 20 R v Cichacz [2022] ACTSC 28 R v Cole [2019] ACTSC 228 R v Di Bitonto [2016] ACTSC 280 R v Hyde [2020] ACTSC 301 R v Kilic [2016] HCA 48; 259 CLR 256 R v Pearce [2018] ACTSC 140 R v Pham [2015] HCA 39; 256 CLR 550 R v Zdravkovic [2015] ACTSC 393 The Queen v Pearce (Supreme Court of the ACT, Burns J, 22 September 2011) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pearce (No 2)

Details

AGLC: R v Pearce (No 2) [2022] ACTSC 71
Case: [2022] ACTSC 71
Decision Date

CaseChat Overview and Summary

The case of R v Pearce (No 2) involves the offender, Adam Pearce, who pleaded guilty to trafficking in a controlled drug other than cannabis and dealing with the proceeds of crime. The Supreme Court of the Australian Capital Territory heard the case before McWilliam AJ, who was required to decide on the appropriate sentence for the offender. The court had to consider the objective seriousness of the offences, the subjective circumstances of the offender, and the current sentencing practices in the ACT. The court also had to consider the offender's criminal history, his prospects of rehabilitation, and the potential for a Drug and Alcohol Treatment Order (DATO).

After considering the evidence, the court determined that the offender's conduct fell in the mid-range of seriousness for the category of offence, and that the subjective circumstances, including the offender's history of substance abuse and criminal activity, indicated that a term of imprisonment was necessary. However, the court also found that a DATO was the most appropriate sentence for the offender, as it would target his addiction issues and potentially reduce his risk of re-offending. The court imposed a sentence of 3 years and 4 months' imprisonment for the trafficking offence, reduced from 4 years and 2 months on account of the offender's plea of guilty, to commence on 8 April 2022 and end on 7 August 2025. In respect of the dealing with the proceeds of crime offence, the offender was sentenced to a term of imprisonment of 7 months and 15 days, reduced from 10 months on account of the offender's plea of guilty, to commence on 23 February 2025 and end on 7 October 2025. A DATO was also imposed for 2 years, commencing on 8 April 2022 and ending on 7 April 2024, with the custodial part of the Order suspended from 8 April 2024 to 7 October 2025. The offender was directed to sign an undertaking to comply with Good Behaviour Obligations from the end of the DATO until the end of the total sentence, and to accept supervision by the Commissioner of ACT Corrective Services.

In conclusion, the court found that a DATO was the most appropriate sentence for the offender, taking into account his history of substance abuse, criminal activity, and prospects of rehabilitation. The court imposed a sentence of 3 years and 4 months' imprisonment for the trafficking offence and 7 months and 15 days' imprisonment for the dealing with the proceeds of crime offence, with a DATO of 2 years. The offender was also directed to sign an undertaking to comply with Good Behaviour Obligations and accept supervision by the Commissioner of ACT Corrective Services.

Orders