Director of Public Prosecutions v Wiggett
[2021] VCC 157
•19 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01740
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH WIGGETT |
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JUDGE: | HIS HONOUR JUDGE McINERNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 January 2021 |
DATE OF SENTENCE: | 19 February 2021 |
CASE MAY BE CITED AS: | DPP v Wiggett |
MEDIUM NEUTRAL CITATION: | [2021] VCC 157 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Trafficking in a drug of dependence – large commercial quantity – MDMA – Relevant prior offence – Serious drug offender– Reckless transporter of the drugs – Reduced culpability – Standard sentence – Imprisonment – Non parole period
Legislation Cited: s.71(1) Drugs, Poisons and Controlled Substances Act 198
Cases Cited:DPP v Al Janabe & Anor [2019] VCC 1313, DPP v Lamberti [2019] VCC 1498, DPP v Kha [2019] VCC 1682, DPP v Nguyen [2019] VCC 1815, DPP v Quah [2019] VCC 1158, DPP v Dong [2020] VCC 298, DPP v Kane [2020] VCC 612 , DPP v Erin Nguyen [2020] VCC 952 – DPP v Dimovski [2020] VCC 1513
Sentence:Total effective sentence of 12 years imprisonment with a non-parole period of 8 years imprisonment. 805 days declared as pre-sentence detention and pursuant to s.6F Sentencing Act offender is sentenced as a serious drug offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Malik | Office of Public Prosecutions |
For the Accused | Ms S. Poulter | Tony Hargreaves and Partners |
HIS HONOUR:
1Mr Wiggett comes before the Court aged 63. He was 61 at the time of this offence, having been born on 27 September 1957. In this matter, Mr Malik appeared on behalf of the Director; and Ms Poulter on behalf of Mr Wiggett.
2I record that these proceedings have been conducted by way of WebEx. I thank everyone involved. Due to the crisis the community has been enduring, there has been no other way to finalise legal proceedings. With the aid of technology and, in particular, the WebEx system, we have been able to finalise this plea. It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place. However, we have all had to cope with that.
3Mr Wiggett pleaded guilty to the charge in Indictment J13186860.
4Upon such plea Summary Charge 3, dealing with property suspected of being proceeds of crime pursuant to s.195 of the Crimes Act was withdrawn.
5The plea took place on the 21st day of January 2021.
6Exhibit A, was accepted by Ms Poulter, on your behalf, as disclosing the facts upon which I am to sentence you.
Charge in Indictment J13186860
7Charge 1 is a breach of s.71(1) of the Drugs, Poisons and Controlled Substances Act, being to traffic a large commercial quantity of 3,4‑methylenedioxy-N-methylamphetamine ('MDMA'). The quantity was 19.8 kilograms, at 79 per cent purity, being 20 times the threshold specified in Schedule 11, Part 3 for a mixed substance of this drug.
8There was one other matter as to purity. The matter was raised by me with the prosecutor that there was no evidence as to value of this large amount of this drug put before the Court which you will note is in contradistinction to Dimovski[1], where values were given, albeit for a larger amount, of not only the wholesale value but the retail value, the purity percentage being 84 and 86. Given that I do not have those figures, all that I am going to say is that I accept that the MDMA at that level is clearly at a commercial level, as against the fact of it being cut down to what might be seen as smaller parcels which would be retail level. Does either counsel want to say anything about that?
[1] [2020] VCC 1513.
9MS POULTER: I would accept that, Your Honour. It is not like I can say it is street level. It is at a commercial value.
10HIS HONOUR: Yes.
11MS POULTER: And that is agreed that is conceded.
12HIS HONOUR: The quantity was 19.8 kilograms, at 79 per cent purity, being nearly 20 times the threshold specified in Schedule 11, Part 3 for a mixed substance of this drug.
13The maximum penalty for this crime is life imprisonment, demonstrating its inherent seriousness, and Parliament's concern as to such serious offending. Pursuant to s.71(2)[2], a standard sentence of 16 years' imprisonment is provided for this offence.
[2]Drugs, Poisons and Controlled Substances Act 1981.
14I must take that standard sentence into account as one of the relevant factors in your sentence, Mr Wiggett. Sections 5A, 5B and 11A of the Sentencing Act also apply to your sentence. As detailed by the Court of Appeal in Brown v The Queen [2019] VSCA 286, [4] and in Lugo v The Queen [2020] VSCA 75, such standard sentence is but one of the factors to be considered under s.5(2)(ab) and does not have primary focus. It is simply one of the factors in the intuitive synthesis which I must bring to the sentence, including the factors put to me by way of mitigation.
15The counsel advised the Court that as to s.5B(2)(b) this was the first sentence pronounced for this offence since the introduction of the standard sentencing scheme. I was surprised at this, considering the standard sentences have been in operation since February 2018. Indeed, I subsequently recalled I sentenced for such a crime under such scheme on 21 September 2020 in DPP v Dimovski[3]. As I suspected this morning, following both counsel being sent a query on this regard, I was advised that what was meant is that the Court of Appeal had not, since the introduction of the standard sentencing scheme, given a decision in regard to this particular crime, upon the enquiries made by both counsel.
[3] [2020] VCC 1513.
16I can take account prior sentences, that is prior to the introduction of the standard sentencing scheme, for general principles, as I shall refer to. As I say, in regard to sentences in this Court, apart from Dimovski, I have also taken account of and used as judicial guideposts the following: DPP v Al Janabe & Anor [2019] VCC 1313 (another sentence of mine), DPP v Lamberti [2019] VCC 1498, DPP v Kha [2019] VCC 1682, DPP v Nguyen [2019] VCC 1815, DPP v Quah [2019] VCC 1158, DPP v Dong [2020] VCC 298, DPP v Kane [2020] VCC 612, DPP v Erin Nguyen [2020] VCC 952.
17As to s.5B(5) of the Sentencing Act the sentence imposed for Charge 1 relates not only to the objective criminality, but all my findings in regard to that charge and all the factors put to me in the plea.
18Mr Wiggett has only one prior offence, but a relevant one in that he was convicted on 11 March 2005 in this Court for trafficking in a commercial quantity of a drug of dependence and sentenced to 36 months' imprisonment. Mr Wiggett is therefore classified as a serious drug offender pursuant to s.6B(2) of the Sentencing Act and hence when convicted of Charge 1 in this indictment, a relevant offence, must be sentenced as a serious drug offender pursuant to s.6(D)(a), whereby community protection must be a principal purpose, albeit no submission has been made upon the terms of s.6(D) that a disproportionate sentence is called for. Sections 6E and 6F[4] will also apply to this sentence.
[4]Sentencing Act 1991.
19Mr Wiggett, I want to emphasise to you, as your counsel has pointed out, that prior offence took place on 11 March 2005. However, albeit given your history at that time, you were given a suspended sentence, the fact is you were sentenced to 36 months' imprisonment. Why it is relevant is that here we are, 13 years on, despite having the experience of that conviction and, you might say, leniency in getting a suspended sentence, you have accelerated your offending by committing an even more serious charge. Hence, on the principles set out by the High Court in Veen v The Queen[5], it is appropriate to take such prior offence into account on the following basis:
“The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.”[6]
[5] (No 2) 1988 164 CLR 465, [477]-[478].
[6] Ibid, [477].
20And I might emphasise it is not taken into account on the basis that you are sentenced again for such crime. However, it is taken into account on the basis that it is something that this Court can take into account in assessing the appropriate sentence to pass in this case, and as put by the prosecutor, the principle of specific deterrence obviously becomes important in your case.
21The prosecution has tendered:
a. Exhibit B: Relevant photos in depositions from pages 25 to 46; and
b. Exhibit C: Prosecution outline of submissions relevant to the plea dated 20 January 2021.
Criminality
22Coming then to criminality, the plea was settled on the basis, generously I think, that rather than actual knowledge of the drug and its actual quantity, with which Mr Wiggett was found in possession and transporting, his criminality is on the basis that such trafficking was committed recklessly, in that his mental state was that there was a significant and real chance of the product being the charged drug and of the quantity thereof, see R v Nguyen [2005] VSCA 172.
23The prosecution therefore, given the agreement as to such plea, submitted that the objective seriousness of the crime was reduced, with which obviously Ms Poulter also agreed, albeit acknowledging the principles of R vPidoto and O'Dea [2006] VSCA 185, [38] and [41] and the references to comparison of judgements as to relative seriousness being made easier 'when the quantity is expressed as a percentage, or multiple, of the [large] commercial quantity[7].'
[7]DPP (Cwth) v Omar [2019] VSCA 188, [8].
24I must say that such agreement, which I honour, does bring with it, if I might say, a touch of unreality about the details of this crime. Mr Wiggett lived at the time at Lilydale. He was found in a work safety vehicle at 4:15pm, driving south on the Hume Highway, at or near Barnawatha. I am told from the material on the depositions and indeed the police statement that he was there arrested as a result of police intelligence. The Director, nor the police, have informed the Court anything about that police intelligence or why the vehicle was stopped. The reality is that as a result of such intelligence, two Highway Patrol officers stopped Mr Wiggett and the details of that are illustrated in Exhibit 2, the photographs. However, as I have said, I accept that the plea was made on the basis, and I sentence accordingly.
25The prosecution was at pains to point out that quantity was not the sole determinant of gravity. While the gravity of the crime is informed by the quantity trafficked, as the Court made clear in Dao v R [2014] VSCA 93, quantity is not determinative of the sentence, but of utmost significance and 'that other things being equal, the larger the quantity, the more serious the offending'. The prosecutor stressed the need for both general and specific deterrence, to be effected given Mr Wiggett's prior offending, and relied specifically on the comments in Dawid v DPP [2013] VSCA 64 where the Court in referring to the immense scale and huge profits involved in such offences said:
'It is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived.'[8]
[8]Dawid v DPP [2013] VSCA 64, [35].
26In this regard the prosecutor accepted the defence submission that there is no evidence of specific financial reward. Indeed, Ms Poulter said during the plea that her instructions were that this offending was carried out to meet the cost of the need to panel beat her client's car. I said that I would not accept such instructions without proof, and none was forthcoming.
27I also indicated that I inferred that to undertake the recklessness exposed here, that such crime was done for financial reward, albeit it was not possible on the evidence to quantify the same[9].
[9] See Nguyen & Anor v R [2011] VSCA 32, [34].
28There was no evidence placed before the Court as to the value of the drug, either commercially or if retailed. Given the purity figure, I conclude that it was at a commercial level as to purity, and I note that counsel accept that conclusion.
Principles of Law
29In trafficking matters, the High Court decision of DPP v Dalgleish (a pseudonym) [2017] ALJR 91 has not dissolved the need for an uplift as detailed by the Court of Appeal in Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, and Fernando v R [2017] VSCA 208, albeit that such uplifted sentencing practice is not a 'controlling factor', it cannot be ignored[10].
[10] See DPP v Condo [2019] VSCA 181, [20].
30Trafficking in methamphetamine is a prevalent offence, which means the weight to be afforded general deterrence should be increased, such offence harming the community for the criminal's own profit[11].
[11]Director of Public Prosecutions v Condo [2019] VSCA 181, [22].
31As I have already said, as a result of being a serious offender, the principal purpose in this sentence must be the community protection.
32As said by the Court of Appeal in Gregory and Fernando, any attention to individualised sentencing must necessarily have in sharp focus the maximum penalty, the respondent's role in the drug enterprise, the quantity of the drug actually transacted and the period over which the offending occurred[12].
[12] Ibid, [30].
33Given the accepted role of Mr Wiggett as a 'reckless transporter of the drugs' and the prosecution acceptance thereby of his reduced culpability, I must sentence accordingly.
34The authorities have for some time detailed that persons who participate in these crimes, whatever their role, must expect condign punishment[13].
[13]R v McLiesh (1982) 30 SASR 486, [492].
35I, looking at the circumstances, would have been inclined to proceed on the basis of there being uncertainty as to your role, Mr Wiggett, See Dao v R [2014] VSCA 93, [8] and [38] to [41] and proceed to sentence on the facts known to the Court, given the vast quantity of the drug. However, given the agreement with the prosecution, I sentence Mr Wiggett on the basis that he is a 'reckless transporter of the drugs' and as such his criminal culpability is reduced, as put by the prosecution and defence. That role, however, must be seen as indispensable, as illicit drug networks are only able to prosper because trusted people like Mr Wiggett are prepared to undertake such roles and as I say are trusted to do so, and thereby commit crimes which are inherently grave[14].
[14]DPP (Cwth) v Omar [2019] VSCA 188, [9].
36Further, in contradistinction to many of the cases which I have referred to in earlier paragraphs, which I can take into account since the introduction of the standard sentencing scheme, the carrying out of the crime here is confined to one day, there being no evidence of Mr Wiggett trafficking over a particular period. Again, of course, none of those cases, but for my sentence in Dimovski, approaches the large volume of the drug here. Indeed, as to comparison of such a high volume, one has to go back to cases which pre-date the standard sentencing scheme, being Dao and Nguyen [2019] VSCA 184.
37In Nguyen the Court considered a quantity of 20 times the large commercial threshold for heroin and concluded that such rendered the charge a serious example of a most serious crime, and described a sentence of 14 years as moderate, albeit that Nguyen had gone to trial on the charge, had serious drug priors[15], and considered that given those circumstances the crime might have attracted a noticeably higher sentence.
[15]Nguyen [2019] VSCA 184, [56].
38In Dao the Court described a volume of 30 times the large commercial quantity as being 'within the worst category of offending'[16] but also, appropriate to the facts of this plea, Nettle JA noted that: 'limited knowledge as to what he was involved in' may render the prisoner 'less culpable than would otherwise necessarily be implied by being found in possession of vast quantities of illicit drugs and cash'[17]. In conformity with s.5B[18], I disregard the sentences passed in those cases and adopt only the commentary as to such crimes with volumes of this degree.
[16]Dao v R [2014] VSCA 93, [16].
[17] Ibid, [17].
[18]Sentencing Act 1991.
39In considering the cases which I am entitled to consider by way of sentencing, I accept the submission of both counsel that the most similar case is Dimovski, which was my sentence last August. In that case, the drugs found were 33 times the large commercial quantity threshold and the purity was in fact higher, between 84% and 86%. Unlike this case, values were given of such amounts and Mr Dimovski was sentenced on his agreed role as a courier, which is very similar to this.
40As submitted this morning by Ms Poulter, there were differences of course between Dimovski and Mr Wiggett. The first is the agreed mental element, as I have referred to upon which the plea was based in this case. The second was that it was a more sophisticated situation on its face in Dimovski. However, my reference to the sophistication there indicated - the only indication was that the truck had been modified in a sophisticated manner, indicating the types of steps taken by the organisation behind him as he was sentenced as courier and indeed, we had photos of those matters. The final matter put as different to Dimovski was the issue as to Mr Wiggett's health.
41As against that, I raised with Ms Poulter the fact that her client had a relevant prior for a serious drug offence, as against Mr Dimovski who had no such prior, although he did have a proceeds prior amongst other priors. I take all of those differences into account in considering all of the cases that I have referred to, in particular that case, as guideposts to this sentence.
42I must of course, Mr Wiggett, sentence you upon the facts of your criminality as have been agreed. You are entitled, as said by the High Court, to a just and individualised sentence upon those facts, and that is what I intend to do[19].
[19] See Dalgliesh [2017] 91 ALJR 1063 at 1075.
43Ms Poulter conceded there is no other appropriate sentence but for imprisonment, see Exhibit 1, [1].
44Ms Poulter tendered written submissions and spoke to them.
45The first matter raised was your early plea being utilitarian, demonstrating remorse, and assisting the attainment of justice. In addition the utilitarian value of the plea must be considered in our current COVID-19 times and the effects that has on the capacity of the Court to list matters and your cooperation therefore. I take that into account by way of mitigation in the manner as set out by the Supreme Court in Re Bourke [2020] VSC, [32].
46The second issue was the COVID-19 risk in prison, which I accept, in regard to lockdowns, limited visitors, reduced access to courses and of course living with the risk of contraction. Let us hope for the whole community such is now only in the short term. However, I note that Mr Wiggett has been on remand for the whole of the period of such COVID-19 crisis to date and I accept that certainly in the short term, hopefully, such conditions will render imprisonment more burdensome and I take same into account.
47The next issue was the medical concerns of Mr Wiggett.
48Mr Wiggett appears to have been appropriately treated for same on numerous occasions, which has been meet with varied degrees of satisfaction by Mr Wiggett, while on remand to date, which the Court presumes will continue, Corrections being responsible for his care.
49No doubt in totality Mr Wiggett's medical conditions will make his gaol sentence more burdensome which I take into account in the sentencing discretion.
50Exhibit 2 demonstrates that treatment while on remand which relates to:
a.a possible detached retina, no final conclusion has been made in this regard;
b.ongoing excisions for pigmented lesions/cancerous spots, upon a history of diagnosed melanoma; and
c.osteoarthritis in both shoulders, which was reported on by the specialist Mr Li in 2015, see Exhibit 3, with a long-term diagnosis of replacement need, dependent on progress.
51Mr Wiggett is a man of 63, and while I acknowledge those conditions, I do not see them as amounting to anything exceptional in the sense that they would be taken into account in any more higher manner than I have indicated as being more burdensome for him while he is serving his sentence and I take them into account in that regard.
52As to Mr Wiggett’s personal background, I note the circumstances as detailed in the written plea, in particular from [27] to [37].
53Ms Poulter submits the sentence should not be crushing, and that the objective seriousness of the crime, taking into account objective factors only, should be classified as well below the middle range of seriousness.
54I find that such submission should not be accepted, and that the seriousness of the offending, that is objectively, places the crime at the middle of the range of seriousness, despite the concession as to the prisoner's criminal culpability owing to his state of knowledge.
55All of the cases that I have referred to and analysed were post introduction of the standard sentencing scheme for this case, as I have said, are used as guideposts in the individual process of instinctive synthesis required in Mr Wiggett's sentence.
Sentence
56I therefore come to your sentence, Mr Wiggett. As I have said, in the circumstances you need not move from where you are.
57Mr Wiggett, taking account of all of the factors put to me as detailed above, you will be convicted on this charge.
58On the charge, that is Charge 1, I sentence you to imprisonment of 12 years.
59I order that the non-parole period, that you must serve before being eligible for parole is eight years.
60Pursuant to s.18, insofar as the sentence imposed upon you I declare that the 805 days you have served by way of pre-sentence detention be deemed as service of this sentence and a declaration to that effect be recorded in the records of this Court.
61I declare pursuant to s.6F(1) that Mr Wiggett is sentenced as a serious drug offender, and order that that fact be entered in the records of this Court.
62In regard to s.6AAA of the Sentencing Act, Mr Wiggett, can I tell you, and probably having heard the sentence I have just passed on you, it is nothing that is dramatically significant. But I am required to tell you the benefit of you making your plea. Insofar as the sentence passed upon you, you know that I have given you a total effective sentence of 12 years with a minimum of eight. Can I indicate to you, as required by Parliament, what you would have received had you not pleaded guilty. Can I also indicate how difficult this is, because your plea of guilty is only one of the multitude of factors I have had to take into account; however, doing as best I can to comply with the wishes of Parliament, can I indicate to you that had you not pleaded guilty, the sentence that would have been imposed upon you is not one of 12 years with a minimum of eight years, but one of 15 years with a minimum of 11 years.
63So you are not confused, your sentence is one of 12 years with a minimum to serve before parole of eight years, less the period that you have served by way of pre-sentence detention which has been agreed today at 805 days.
64Can I thank all counsel for their assistance in this matter. Is there any matters of clarity that I need to explain or any questions from either Mr Malik or Ms Poulter at this stage?
65MS POULTER: Your Honour, the only thing I would seek to raise is a custody management issue. There is nothing I want to say in regards to the sentence.
66HIS HONOUR: Well, he appears to be very well managed in custody from what I can read from Exhibit 2, is it? As I said, he has had numerous attendances from the medical material while on remand, Exhibit 2. It seems that he is being very well managed by Corrections. Obviously, like I suppose all patients, he is not necessarily happy all the time but I would have thought he has had excellent treatment and attention and none of those issues are not already known, are they?
67MS POULTER: Your Honour, there is a significant issue in regards to since the plea, his earliest opportunity with an optometrist is in late April, and as Your Honour indicated, he has been diagnosed with symptoms consistent with a detached retina which all the medical material seems to say needs to be urgently assessed by an eye doctor or medical practitioner. And I would be asking Your Honour to note that as a custody management issue to enable him to see an optometrist.
68HIS HONOUR: Well, I think, Ms Poulter, as you know I have got no role on - I cannot tell Corrections what to do. I can just note that there are health issues and perhaps not that there is an optometrist, it is an eye specialist?
69MS POULTER: It is either an eye specialist or a medical practitioner that generally deals with a detached retina, Your Honour.
70HIS HONOUR: A detached retina has to be, in my experience, has to be dealt with by an eye specialist. You do not go and see an optometrist for that, I do not think. But anyway, the best I can do for your client is to say that we note that there is to be an appointment in regard to his detached retina. And I do not know, I do not think I can say much more than that, can I?
71MS POULTER: Well, would Your Honour consider saying something along the lines of 'All steps to be taken to ensure issues regarding his (indistinct) be addressed in a timely manner'?
72HIS HONOUR: Well, I cannot really direct Corrections but all we can note is that - well, we note the medical attention and assessment required as set out in the custody management issues, in particular, in regard to the possibility of him having a detached retina.
73MS POULTER: Yes, thank you, Your Honour.
74HIS HONOUR: Yes. All right. So Ms Poulter, if you are happy to do that, can I just say to you I am told that there is no recording as you would expect of your discussion you are about to have with your client. I cannot guarantee that of course, but I am told that there is no such recording.
75MS POULTER: Thank you, Your Honour. If I can just speak to him briefly. I would appreciate that.
76HIS HONOUR: I am sorry. Put everyone else in the lobby. Mr Wiggett, I understand you probably do not want to hear too much from me, but it is very important for you to understand, when you finally come out, no more criminality because the next sentence, I would not like to think about. Yes.
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