Director of Public Prosecutions v Watkins (a pseudonym)
[2020] VCC 25
•29 January 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAWRENCE WATKINS (A PSEUDONYM) SAM FISHER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 January 2020 | |
CASE MAY BE CITED AS: | DPP v Watkins (a pseudonym) & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 25 | |
REASONS FOR SENTENCE
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Catchwords: engaging in the business of importing and trafficking border controlled drugs in a commercial quantity contrary to the Commonwealth Criminal Code - subordinate but essential members of a criminal syndicate which bought and sold drugs on the dark web - offender 1, limited criminal history - offender 2, 1st offender - early guilty pleas - both genuinely remorseful with good prospects of rehabilitation - offender 1, total effective sentence of 7 years imprisonment with a non-parole period of 4 years – offender 2, total effective sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | A Buckland | |
| For the Accused | Mr C Johnstone SC for Watkins Mr A Wareham for Fisher |
HIS HONOUR:
1.Mr Watkins[1], in relation to the three charges that you face I will impose a total effective sentence of seven years' imprisonment and I will fix a minimum non parole period of four years.
[1] Lawrence Watkins is a pseudonym
2.In your case Mr Fisher[2], on the two charges that you face I will impose a total effective sentence of six years' imprisonment and fix a minimum non parole period of three years and six months. I will now give my reasons.
[2] Sam Fisher is a pseudonym
3.Lawrence Watkins you have pleaded guilty to one charge of engaging in the business of importing a commercial quantity of a border controlled drug, contrary to sub-s.(1) of s.307.1 and sub-s.(1) of 311.4 of the Commonwealth Criminal Code. You have also pleaded guilty to one charge of engaging in the business of trafficking in a commercial quantity of a controlled-drug contrary to sub-ss.302.2(1) and 311.2(1) of the Commonwealth Criminal Code. And you have additionally pleaded guilty to the state offence of trafficking in a commercial quantity of a drug of dependence contrary to s.71AA the Victorian Drugs Poisons and Controlled Substances Act.
4.You, Mr Fisher, have pleaded guilty to one charge of engaging in the business of trafficking in a commercial quantity of a border controlled drug contrary to the Commonwealth criminal Code and one charge of trafficking in a commercial quantity of a drug of dependence, contrary to the Victorian Drugs Poisons and Controlled Substances Act.
5.All The circumstances of the offending of the two of you are set out in the prosecution opening for plea which was Exhibit A. They are agreed facts.
6.In summary, between 6 February 2017 and 9 October 2017 the two of you were members of a criminal syndicate which imported and trafficked border controlled drugs over the dark web. The dark web consists of encrypted websites which use a special browser “Tor”, which disguises the user’s IP address and hides the user's searches and communications. For some time the business was operated from the home of the man, who was the principal of the syndicate. He became risk averse and, in March 2017, the business operations were moved to a safe house. The tenancy agreement for the premises was in your name, Mr Fisher.
7.The principal directed the importing and trafficking operations. He owned the controlling share, 60 per cent of the business. He used Bitcoin accounts to buy substantial quantities of drugs over a three year period. He sold the drugs in Australia using cryptocurrency which was traded and sold and converted into Australian dollars paid into bank accounts, including an account in your name, Mr Fisher.
8.You, Mr Watkins, assisted with the drug importation and trafficking operations and you, Mr Fisher, assisted with the drug trafficking operations. Police who had the 2 of you under surveillance observed you both regularly attending the safe house between July and October 2017.
9.You, Mr Watkins, collected the parcels of drugs which were imported into Australia. You assisted with the trafficking of those drugs here and you provided cryptocurrency knowhow. You managed 25 post office box and postal locker facilities for receipt of the imported drugs. You collected the imported drugs and unpacked them and then you repacked them and posted them to customers in Australia.
10.You, Mr Fisher, also assisted with the drug trafficking operations. You packed the drugs and posted them to customers in Australia.
11.In relation to Charge 1, which concerns you Mr Watkins, engaging in the business of importing border controlled drugs between 6 February 2017 and 27 October 2017, you were involved in the collection of drugs which the principal ordered on the dark web. Between March and September 2017 police seized 137 international mail packages which were addressed to 23 different post office boxes and parcel lockers which you managed for the principal. The seized packages contained 1.8697 kilograms of cocaine, 5.413 kilograms of MDMA and 886.6 grams of ketamine. The total quantity of border controlled drugs contained in the packages was 12.64 times a prescribed commercial quantity.
12.Between 6 February and 27 October 2017, the two of you were engaged in the business of trafficking a commercial quantity of border controlled drugs. That is Charge 2 for you Mr Watkins, Charge 3 for you Mr Fisher.
13.On 31 August 2017, at Plenty Valley Shopping Centre, you, Mr Watkins, purchased toys, pillows and cushions which were used as a cover load to conceal drugs which were to be posted to customers. Later on the same day, you made two trips to a mailbox where you posted a number of envelopes.
14.On 25 October 2017, you Mr Fisher, took 161 mail items from the safe house and posted them at an express post facility at Thomastown. Police seized those items. They contained quantities of cocaine, ketamine, MDMA, methamphetamine, MDA and heroin which in aggregate weighed 197.6 grams.
15.Next day, on 26 October, You, Mr Fisher, took 146 mail items from the safe house and posted them at the same express post facility at Thomastown and police seized those items as well. They contained quantities of cocaine, ketamine, MDMA, methamphetamine and MDA which totalled 267.9 grams.
16.On 27 October 2017, police executed a search warrant at the safe house and seized quantities of cocaine, heroin, ketamine, MDA, MDMA and methamphetamine totalling 4.9322 kilograms.
17.The combined weight of the drugs seized on 25, 26 and 27 October was 8.729 times the prescribed commercial quantity.
18.They also seized from the safe house 16.4425 grams of
1,4-Butanediol which, by your joint possession of it for sale on 27 October 2017, constitutes Charge 4 charged against you both, trafficking in a commercial quantity of a drug of dependence. The 1,4-Butanediol seized was 8.221 times the prescribed commercial quantity.19.From the safe house police also seized clip seal bags, a drug testing kit, scales, a calculator, a labelling machine and a heat sealers, toys, bottles and bags capable of being used to conceal drugs in post packs, express post and padded envelopes and various post office box keys.
20.The safe house where the two of you had worked was used to unpack and store the imported drugs and to prepare them for sale.
21.Mr Watkins, when police searched your home they found express post envelopes, a labelling machine, $56,000 in cash and a cash counting machine. They also seized from your home a mobile phone, a computer tower and a laptop computer. Your digital devices contained Surespot communications, photographs of powder, crystals, tablets and liquids and data relating to customers and drug orders. The “Tor” Browser was also installed on your computer.
22.Mr Fisher, at your home police found handwritten notes of prices and quantities of drugs and $103,300 in cash. They also seized your mobile phone and the laptop computer. Your phone and computer also contained text messages and other data including photographs of powder, crystals, tablets, liquids and vegetable matter and data relating to customers and drug orders. The “Tor” Browser was also installed on your computer.
23.Police arrested each of you at your respective homes and you were remanded in custody. The two of you subsequently made full admissions of your involvement in these crimes.
24.Mr Watkins, you have one prior court appearance. In October 2015 in South Australia you were fined $5,600, without conviction, for possess a drug for supply.
25.Your former employer, described you as well skilled and a trusted employee. He knew you as a normal easy going young man. A close family friend, wrote, when you were in school, your teachers regarded you highly for your worth ethic and your excellent manners.
26.A close friend was saddened to hear of your offending. Recently she has spoken to you by telephone. She wrote you are very remorseful for your actions and have involved yourself in prison activities to advance your rehabilitation.
27.She also stated your parents are extremely supportive and are planning how they will help you to return to life outside prison when you are released.
She is confident you have learned a lesson and will not reoffend. You have kept regular contact by phone and mail with your grandmother. You have told her you are remorseful for your offending and sorry for the shame and hurt you have caused your family.28.Another friend, who has known you for more than 10 years described you as a very motivated and smart individual who cares greatly about family and friends. He found your offending out of character and difficult to understand. He has kept contact with you whilst you have been in prison. He said you have a strong moral compass and are extremely remorseful for your actions. With a strong support network of family and friends he is confident you will not reoffend.
29.Your parents also wrote a letter to the court. They are both retired.
30.You were brought up in a loving and caring family. Your arrest, as they described it, absolutely blindsided your parents. Your imprisonment has also caused them stress and anxiety which has tested the strength of their long marriage.
31.You have had no visitors in prison, however you have regular phone contact with family and friends. Your parents agree you use your time in remand to become a better person, although they worry your rehabilitation may be impaired by your likely exposure to corrupting influences in gaol.
32.You were using drugs yourself when you offended.
33.I received drug results which show you have not been using illicit substances in prison and I also received certificates for educational and behavioural programs you have completed in gaol. I received a letter from a prison counsellor who confirmed you have attended a number of therapeutic counselling sessions. She wrote you are choosing to use your time in prison to improve your outlook and increase your skills.
34.The consultant psychologist, Tim Watson-Munro, assessed you on
1 October 2019. You told him to deal with depression and anxiety you started using MDMA and at the age of 17 you moved onto crystal methamphetamine. You drifted back into drug use, using cocaine, ketamine and MDMA until you were unable to work because of your escalating drug use and spiralling mood.35.In Mr Watson-Munro's opinion when you offended you were suffering a substance use disorder, depressive disorder and features of an anxiety disorder which will have adversely affected your judgment. In his view, as you have been drug free for two years while on remand, you can now be considered to be in full remission. He noted you have earned trusted positions in prison and have positive aspirations to return to work when you are released from prison. In his opinion, with continuing treatment your prognosis will remain on a positive trajectory.
36.In comprehensive written and oral submissions your counsel,
Mr Johnstone SC, produced the Watson-Munro report, the five character references to which I have referred, prison programs certificates and drug screens to which I have also referred and the La Trobe Community Health letter. He accepted, because of the serious nature of your offending, the imposition of prison term is inevitable. He acknowledged your role as an active syndicate member was critical but he submitted it was limited insofar as the syndicate principal was in charge of the business. He was the boss and your financial gain was modest compared to his. He structured his business to expose Fisher and you, and not himself, to the risk of detection.37.In addition to your limited role Mr Johnstone also relied on the following factors in mitigation of penalty, firstly, your guilty plea for its utilitarian value and acceptance of responsibility for your actions and also as evidence of contrition and remorse. Secondly, your limited criminal history. Fourthly, your mental health all related to the trauma of your sister's long and fatal illness. Fifthly, your good prospects of rehabilitation evidence by your remorse, by your positive response to your time in custody which includes enforced abstinence from drugs, and your strong support of family and friends. Sixthly, the delay in sentencing which has caused you a lengthy period of uncertainty as to your sentencing outcome. Seventhly, the additional burden of imprisonment for you, as it is your first time in custody and because of the uncertainty caused by the risk of deportation, and your isolation from family and friends.
38.1,4-Butanediol is not scheduled as a controlled drug under the Federal Criminal Code. It is a prescribed drug of dependence under the Victorian Drug Legislation, hence your trafficking of that drug, Charge 4, while part of the trafficking business the subject of Charge 2, has been charged separately. Mr Johnston submitted possession of that drug was part of the course of conduct charged in Count 2 and, accordingly, I should order your sentence on Count 4 be served concurrently with the sentence I impose on Count 2. He also submitted, as there is significant overlap in the timing, conduct and criminality of the three charges against you, in accordance with the totality principle, I should order a high degree of concurrency in respect of the sentences I impose on Charge 1, importing, and Charge 2, trafficking, border controlled drugs.
39.Mr Fisher, you have no criminal record.
40.Mr Wareham, who appeared on your behalf, relied on the following documents: prison drug screens, prison program certificates, a report of Dr Ehsan Rahimikia, psychiatrist, and a letter from Arrow Health.
41.You said when you were 15 years old you started using benzodiazepines and, when you were 19, you started using cocaine and MDMA. You successfully rehabilitated during your twenties.
42.Your counsel told me when you committed these crimes you had relapsed into substance abuse. You have been in remission, evidenced by clean drug screens, during your time in custody. Like Mr Watkins, you have also undertaken all prison vocational and treatment programs offered to you, evidenced by certificates tendered in evidence.
43.Mr Wareham likened your role to Mr Watkins’. He submitted it was important but limited in the ways Mr Watkins’ also was. He also relied on the following factors in mitigation of penalty, your guilty plea for its high utilitarian value acceptance of responsibility for your actions and as evidence of remorse.
44.He relied on your absence of any criminal record, the social disadvantage of your upbringing and your mental health is mitigating factors. He also relied, in mitigation, on the delay in prosecution of you, and your good prospects of rehabilitation, evidenced by your positive response to your time in custody and your good work and education history.
45.Mr Buckland, who appeared for the Crown, in written and oral submissions, submitted the offending of both of you is objectively serious because of the significant quantities of drugs imported in your case, Mr Watkins, and trafficked, in the case of both of you, over a period of 8 months.
46.He described your roles as essential, and, in his words, mid-range. He described your guilty pleas as early and accepted they have high utilitarian value and are evidence of remorse. He accepted you both have good prospects of rehabilitation and delay, through no fault attributable to either of you, is relevant to your sentencing. You have both consented to orders for forfeiture of the cash found at your respective homes. He agreed with Mr Johnstone's submission regarding orders for concurrency in respect of Charge 4, acknowledging the trafficking of the 1,4-Butanediol is part of the course of conduct charge in the federal trafficking charge, Charge 2 for you, Mr Watkins, and Charge 3 for you, Mr Fisher. He also agreed with Mr Johnstone's submission that there is significant overlap in your case, Mr Watkins, in relation to the conduct which constitutes your importation offending and the conduct which constitutes the drug trafficking. He acknowledged your roles were significantly less than and subordinate to the syndicate principal who founded the business.
47.He submitted that, as between you, your respective roles were substantially the same although you, Mr Watkins, are to be sentenced for the additional count of importing a commercial quantity of border controlled drugs. I accept the force of Mr Buckland's submissions and have taken them into account to determine the individual sentences, the total effective sentence and the non-parole periods I should impose.
48.I accept you had trusted and essential but subordinate roles in a substantial drug importation and trafficking business.
49.I accept the quantity of drugs imported and trafficked were significant but not at the higher end of the commercial range. The aggregate commercial quantities are below the mid-range of cases discussed in De La Rosa which I will refer to later.
50.I accept as strong mitigating factors your early plea of guilty which has high utilitarian value. I accept you are both genuinely and profoundly remorseful.
51.I accept you both have good prospects of rehabilitation and there is less need for specific deterrence in your cases, that you have faced uncertainty of your outcome for more than two years and you face uncertainty of your future due to the risk of deportation are mitigating factors in your favour and also will suffer the additional burden of incarceration for the first time.
52.I accept there is a risk lengthy exposure to corruptive influences in prison will compromise your rehabilitation and it is also a mitigating factor in your case, Mr Watkins, that you have a limited criminal history and in yours, Mr Fisher, that you have no criminal record at all.
53.In determining the sentences I will impose I have taken guidance from the principles stated in the Victorian and New South Wales appellate courts in De La Rosa [2010] NSWCCA 194, Nguyen and Pham [2010] NSWCCA 238, Nguyen and Phommalysack [2011] VSCA 32 and The Queen v Brian Gregory [2017] VSCA 151.
54.I have also had regard to Fatho, Van and Nguyen [2019] VSCA 311, a recent decision concerning trafficking of a commercial quantity of 1,4-Butanediol.
55.I have moderated your individual sentences and the non-parole periods I have imposed to take account of the strong mitigating factors in your favour. As you are to be sentenced for more than one offence I have moderated the individual sentences to achieve a sentence which properly reflects your total criminality and because Charge 4, trafficking in a commercial quantity of 1,4-Butanediol represents modest additional criminality to the charge of engaging in an organised commercial trafficking activity, and again to take into account the principle of totality, I will order the sentence I impose on that charge to be served concurrently with the other sentences.
56.Please stand, both of you. The sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
57.Taking into account the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to both of you:
58.Mr Watkins:
59.On Charge 2, engaging in the business of trafficking in a commercial quantity of a border controlled drug, you are sentenced to six years imprisonment which sentence is to commence today.
60.On Charge 1, engaging in the business of importing a commercial quantity of a border controlled drug, you are sentenced to five years' imprisonment which sentence is to commence on 31 January 2022 and
61.On Charge 4, trafficking in a commercial quantity of a drug of dependence, you are sentenced to three years' imprisonment which is to be served concurrently with the sentences I have imposed on Charges 1 and 2.
62.So your total effective is seven years' imprisonment and to allow for your continued rehabilitation under supervision in the community I fix a minimum non parole period of four years' imprisonment.
63.Mr Fisher:
64.On Charge 3, engaging in the business of trafficking in a commercial quantity of a controlled drug you are sentenced to six years' imprisonment which is to commence today and
65.On Charge 4, trafficking in a commercial quantity of a drug of dependence, you are sentenced to three years' imprisonment which is to be served concurrently with the sentence I have imposed on Charge 3.
66.Your total effective sentence is six years' imprisonment and to allow for your continued rehabilitation under supervision in the community I fix a minimum non parole period of three years and six months imprisonment.
67.You may be seated.
68.I declare each of you has already served 824 days of your sentence by way of pre-sentence detention.
69.By consent I make orders for forfeiture of $113,950 in cash, found at your premises, Mr Fisher, and $56,000 in cash, found at your premises, Mr Watkins.
70.While there is an intrinsic artificiality in the requirement which s.6AAA of the Victorian Sentencing Act imposes on sentencing judges, doing the best I can, Mr Watkins, but for your plea of guilty I would have imposed a total effective sentence of 10 years' imprisonment with a minimum non parole period of six years and Mr Fisher, but for your plea of guilty I would have imposed a total effective sentence of nine years' imprisonment with a minimum non parole period of five years and three months.
HIS HONOUR: Ms Skoblar, have I made orders which give effect to my intention that Mr Watkins’ sentence total effective sentence should be seven years' imprisonment?
MS SKOBLAR: Yes, Your Honour.
HIS HONOUR: With a minimum non parole release period of four years?
MS SKOBLAR: Yes, Your Honour.
HIS HONOUR: Thank you. And in the case of Mr Fisher, have I made orders which give effect to the intention that his total effective sentence is six years' imprisonment and his minimum non parole release period be three years and six months?
MS SKOBLAR: Yes, Your Honour.
HIS HONOUR: Thank you. Are there any other matters you would wish to raise?
MS SKOBLAR: No, Your Honour.
HIS HONOUR: Thank you. Please remove Mr Watkins and Mr Fisher and adjourn the court.
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