R v Celeski

[2022] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Celeski
Citation:	[2022] ACTSC 229
Hearing Date:	30 August 2022
Decision Date:	30 August 2022
Before:	Elkaim J
Decision:	The offender is referred to the Drug and Alcohol Sentencing List at 11:15 am on 23 September 2022 for eligibility assessment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – Judgment and Punishment – Sentence – Where
offending occurred while offender was subject to a good
behaviour order – where the offender is a drug addicted person – where prospects of rehabilitation are low – offender referred to
Drug and Alcohol Sentencing List
Legislation Cited:	Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) ss 603 Firearms Act 1996 (ACT) ss 42, 249 Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) ss 26, 36
Cases Cited:	R v Celeski [2020] ACTSC 310
Parties:	The Queen (Crown)
David Celeski (Offender)
Representation:	Counsel
E Wren (Crown)
P Edmonds (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender)
File Number(s):	SCC 174 and 175 of 2022
Elkaim J:

1.       On 13 July 2022, the offended pleaded guilty to the following offences:

(i) CC2022/1384: Unauthorised possession of a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT). The maximum penalty is

10 years’ imprisonment.

(ii) CC2022/1385: Possession of ammunition contrary to s 249(1) of the Firearms Act 1996 (ACT). The maximum penalty is a fine of $1,600.

(iii) CC2022/3327: Trafficking in a controlled drug, namely heroin contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is

$160,000 and/or 10 years’ imprisonment.

(iv) CC2022/1387: Trafficking in a controlled drug, namely methamphetamine contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum

penalty is $160,000 and/or 10 years’ imprisonment.

(v) CC2022/1392: Possession of property suspected of being proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT). The maximum

penalty is $32,000 and/or two years’ imprisonment.

(vi) CC2022/6748: Possessing a declared substance, namely 1,4 butanediol contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act

2008 (ACT). The maximum penalty is $32,000 and/or two years’

imprisonment.

(vii) CC2022/6749: Supplying a declared substance, namely 1,4 butanediol contrary to s 26(1) of the Medicines, Poisons and Therapeutic Goods Act

2008 (ACT). The maximum penalty is $80,000 and/or five years’

imprisonment.

2.       The offender is also in breach of several good behaviour orders with suspended sentences, namely:

(i)       Burglary – CC2016/1268 – 12 months’ imprisonment

(ii)      Damage property – CC2016/1271 – 8 months’ imprisonment

(iii)    Dishonestly ride in motor vehicle – CC2016/1994 – 6 months’

imprisonment

(iv)     Theft – CC2016/1267 – 4 months’ imprisonment

(v)      Obstruct territory official – CC2016/551 – 2 months’ imprisonment

(vi)     Obstruct territory official – CC2016/1270 – 2 months’ imprisonment

(vii)    Two offences of possessing a drug of dependence – CC2016/1997 and CC2016/1998 – 2 months’ imprisonment each

3.       The Local Court in Queanbeyan identified the offender as an habitual offender in 2009. Both before and since that date he has collected a number of convictions for all sorts of offences ranging from driving, firearms, drugs and burglary.

4.       The offences for which he has appeared before me for sentencing occurred while the offender was subject to a good behaviour order.

5.       Notwithstanding his endless misbehaviour the offender has retained the support of his parents, his children and, sometimes, his estranged wife.

6.       The offender was born in Macedonia in 1982. He came to Australia when he was about six years of age. He is one of three children.

7.       After completing Year 12 the offender commenced an architecture degree at Canberra University. He did not go beyond the first year. He left due to anxiety and depression. Nevertheless he has a good work history. He was working for a home building company

before his arrest and has casual employment as a plumber’s assistant on offer upon

his release. He is trying to obtain a builder’s licence.

8.       The offender has a credit card debt of $25,000. He told the authors of the pre-sentence report that he will not have any difficulty repaying the debt when he is released. No doubt he was referring to repayment by legitimate means.

1. The offender’s big problem is drugs. He is a drug addict. He needs about $1500 a day

   to meet his drug requirements. He has tried, but perhaps not very hard, to overcome his addiction but so far has failed. The offender attends church on a regular basis and is very interested and supportive in his four children, aged between 10 and 14 years old.

10.    The pre-sentence report says that the offender is not suitable for an Intensive Correction Order (an ICO) for a number of reasons.

11.     There is an agreed statement of facts in Exhibit A. On 5 February 2022 the offender went to a brothel. While there he became unconscious and an ambulance was called. The paramedics looked in his bag. They found a gun, drugs and a little over $12,000 in cash.

12.     The offender was taken to hospital. He was admitted and remained overnight when he was discharged into police custody. He has remained in custody until now.

13.     The firearm was a Colt 1911. It was loaded, but the safety catch was on.

14.     The offender was sentenced by Burns J on 29 September 2020 (R v Celeski [2020] ACTSC 310). His Honour observed:

20.    You gave evidence before me of your desire to avoid re-offending and your remorse for what you have done. You have obtained steady employment in the building industry and you have a supportive family.

21.   If you maintain abstinence from illicit drugs and undertake appropriate treatment for mental health issues, I am satisfied that you have good prospects for rehabilitation.

22.     It has been rightly considered by your counsel that these were serious offences and, with the exception of those offences which carry only a monetary penalty, deserve the imposition of terms of imprisonment.

15.     The desire to avoid re-offending has obviously waned. Rehabilitation has failed. The Crown now suggests that there are few prospects of rehabilitation. This is what happens to a drug addicted person.

16.     When sentenced by Burns J, the offender had been in custody for about five months. He received continuing sentences of imprisonment (about 14 months) but they were suspended. The benefit arising from having a suspended sentence has been discarded by the offender.

17.     Mr Edmonds, on behalf of the offender, has suggested that the offender be referred to

the Drug and Alcohol Sentencing List because this offender’s future is going to be

dictated by his addiction to drugs. I think Mr Edmonds is absolutely correct. This offender has no chance in life if he remains an addict. The support he has from people like his parents will one day, if not come to an end, at least be diminished if he does not make an effort to get off drugs. I therefore think that every opportunity must be given to him to get off drugs. His efforts so far have failed but the efforts of a controlled program such as that administered in the Drug and Alcohol Court might do better.

18.     In order for the referral to be made the total sentence that will be imposed should not exceed four years. Bearing in mind the likely discount for the plea of guilty, I think I can say that even with the possibility of extra imprisonment because of the offences before Burns J being imposed, that the ultimate term of imprisonment will not exceed four years.

19.     Accordingly and in the hope that the offender will finally do something about his drug addiction because he is obviously an intelligent and capable person, I make the following order:

(i)       I refer the offender for eligibility assessment in the Drug and Alcohol Sentencing List on 23 September 2022 at 11:15 am.

(ii)      I note that no application is made for bail pending that appearance.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: