Director of Public Prosecutions v Wilkins

[2019] VCC 1350

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00841

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA WILKINS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v Wilkins
MEDIUM NEUTRAL CITATION:	[2019] VCC 1350

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Ms S. McGarvie	SPA Lawyers

HER HONOUR:

1Joshua Wilkins, you have pleaded guilty before me to one charge of trafficking in a drug of dependence in a commercial quantity, one charge of trafficking in a drug of dependence, one of charge of possessing a drug of dependence, three charges of being a prohibited person who possessed a firearm, one charge of being a prohibited person in possession of a silencer, one charge of possessing or controlling an explosive substance for unlawful objects, one charge of handling stolen goods and one charge of theft.

2You have also pleaded guilty to the following summary charges which have been uplifted pursuant to the provisions of the Criminal Procedure Act: Summary Charge 11 - possession of cartridge ammunition without a licence, Summary Charge 14 - dealing with the proceeds of crime, being $37,625 in cash, Charge 23 - possessing a prohibited weapon without exemption being the garrotte, Summary Charge 25 - possession of $3,940 suspected of being the proceeds of crime.  Summary Charge 21 - possession of a radio communications jamming device was withdrawn, as it is a Commonwealth summary offence which cannot be heard in this jurisdiction unless the court is also dealing with an indictable charge laid pursuant to the Commonwealth legislation.

3The facts underlying your offending are as follows.  On 29 October 2018, members of the Geelong Divisional Response Unit executed a search warrant at premises at 76 Saffron Street in Newtown where you were then residing.  They searched a number of rooms in that house.  One of the occupants of the premises who was present at the search confirmed that you were living in the front bedroom.

4In that bedroom were located several plastic bags containing 41.7 grams of methylamphetamine, which is part of Charge 1, three rounds of .22 ammunition, which underlies Summary Charge 11, a garotte, which underlies Summary Charge 23, a diagonal stick scanning tool, possession of which underlies Charge 9 on the indictment, a clear resealable bag containing 6.6 grams of methylamphetamine which underlies Charge 3 on the indictment, $6,335 in cash which underlies Summary Charge 14 and a further $31,290 secreted in the lining of a jacket which underlies part of Summary Charge 14, gun powder, fireworks, empty firework cannisters and loose wicks, which underlies Charge 8 on the indictment.  They also located a mirror in your bedroom with several names and amounts written on it in a marker pen, indicating a drug tick list.  Police also found a clear resealable bag containing 1.4 grams of heroin, which underlies Charge 2 on the indictment. 

5Police also located a sawn-off double barrel shotgun which had been hidden under the bonnet of a car in the premises said to be your car, which also contained two shells.  Your possession of that firearm underlies Charge 4 on the indictment.  In the kitchen in a wall cavity, police found an Adler shotgun loaded with two shotgun shells in the chamber, possession of which underlies Charge 5 on the indictment and a .22 calibre rifle loaded with 3.22 rounds in the chamber, which underlies Charge 6.  A firearm silencer was located which underlies Charge 7, two clear resealable bags containing 169.1 grams of methylamphetamine, which also underlies Charge 1 and a Tupperware container with 90.7 grams of a brown coloured crystalized substance analysed to be low purity heroin and this also underlies Charge 2.

6On 8 November 2018, you were arrested at the Community Corrections premises in Little Malop Street, Geelong and taken to the Geelong police station where a record of interview was begun, but suspended in order to allow police to execute a further search warrant on premises at 297 McKillop Street, East Geelong, premises where you, your partner and daughter lived and where you moved after the raid on the premises at Saffron Street.

7There police found a black Ford Sedan parked on the median strip outside the house and further enquiries revealed it was a vehicle which had been stolen from Grovedale on 18 July 2017.  The possession of that car underlies
Charge 10 on the indictment, theft.  Police then found $3,940 hidden under the floor mat of a rear passenger footwell in the car which underlies Summary Charge 25 and some further cash, some Valium tablets and a notebook.  Your black iPhone was located in a jacket pocket on a chair, in a shed at 297 McKillop Street.  They also located a drug tick list in a rubbish bin. 

8In your record of interview you denied ever living at Saffron Street, or of any knowledge of the black Ford Sedan and made no comment answers in relation to the firearms, drugs items and cash located at Saffron Street.  An examination of your phone revealed an extensive array of drug dealing messaging, consisting of hundreds of text messages both sent and received by you, as well images and videos of you using the Adler firearm which had been found in the cavity of a kitchen wall at Saffron Street.

9The text messages sent by you revealed that you were transferring large sums of cash for large quantities of drugs which you bought either in keys or bricks, meaning you were purchasing in kilogram amounts.  The total quantity of the methylamphetamine in your possession was 183 grams, but the commercial quantity is based on purity and that purity was at 143 grams.  The total quantity of heroin in your possession was 92.1 grams in a mixed substance, but the purity was very low, mainly .5 per cent.

10You were sentenced to 90 days imprisonment on 3 July 2018 for charges including trafficking methylamphetamine, after which you were to be released on a Community Corrections Order for fourteen months, so that you were on a Community Corrections Order at the time of this offending.  You have been held in custody since 8 November 2019. 

11The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years imprisonment.  The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment.  The maximum penalty for possessing a drug of dependence is five years imprisonment.  The maximum penalty for Charges 4, 5 and 6 being a prohibited person in possession of a firearm is 10 years imprisonment.  The maximum penalty for being a prohibited person to possessing a silencer is eight years imprisonment.  The maximum penalty for possessing explosive substances, pursuant to Charge 8, is five years imprisonment.  The maximum penalty for handling stolen goods is 15 years imprisonment, that relates to Charge 9 and the maximum penalty for theft, relating to the theft of the motor vehicle is 10 years imprisonment.

12The maximum penalty for Summary Charge 9, possessing a proceeds of crime is a fine, not exceeding $6,447.60.  The maximum penalty for possessing cartridge ammunition which was Summary Charge 11 is a fine, in the amount I have just outlined.  The maximum penalty for possessing - dealing with property suspected of being proceeds of crime relating to Summary Charges 14 and 25, is two years imprisonment.  The maximum penalty for possessing a prohibited weapon, that being Summary Charge 23 is two years imprisonment.

13I now turn to your personal circumstances.  You are 32 years of age.  You were 31 at the time of this offending.  It is appropriate at this stage to refer to your prior criminal history.  I have already indicated at the time of this offending, you were serving the conditions of a Community Corrections Order which was imposed on 3 July 2018 for trafficking in methamphetamine and possessing heroin and ecstasy and also for possessing cartridge ammunition whilst unlicensed and possessing a prohibited weapon without approval and dealing with the proceeds of crime.

14In other words, much of that previous offending has been reflected in the further offending that I must deal with today.  Going back further, you received a suspended sentence in 2007 for assaulting and injuriously imprisoning a person.  You were fined in 2008 for intentionally damaging property and unlawful assault and possessing a controlled weapon without excuse.  You were fined for failing to answer bail in 2016 and you were fined $500 in June of 2016 for possessing ammunition without a licence, storing ammunition in an insecure manner and driving offences.  So it is to be noted that although the offences for which I must deal with today are extraordinarily serious, you do not in my view have a particularly long prior criminal history and I note that there was a gap of about eight years between offending in 2008 and then again in 2016.

15You were born in New Zealand and your family re-located to Australia when you were three and lived in Queensland.  You have an older sister who was eventually sent to live with your grandmother after it appeared she behaved in a very violent manner towards you.  Your parents separated when you were 11, but you told the psychologist Carla Ferrari, whose report dated 3 August 2019 was tendered on the plea, that your father was physically abusive towards both you and your mother and that she often tried to stop this and protect you from it.

16After six months you resumed contact with your father who had re-partnered and you saw him on weekends.  Your father now resides in Queensland and you do not see him very often, but you reported a good relationship with your step-mother.  Soon after your parents' separation, your mother had a relationship with another man whom you did not get along with because he was verbally abusive towards you and your mother and then there was another relationship after that, where your younger half-sister was born.

17It would seem that you started showing behavioural problems from about the age of about 12 or 13.  Unbeknownst to everyone, this was as a result of you being sexually abused whilst your mother was living in a caravan park with you.  You were sexually abused by a man when you went to the showers and it was apparently a very distressing incident, as the perpetrator climbed into a cubicle and molested you.  You told Ms Ferrari that since that time, you had slept with a knife under your pillow.  You otherwise told no one what had happened.

18You reported having attention problems throughout school and rarely completed work as you were unable to focus, but you said you had made friends relatively easily.  You said that you were expelled from three public schools for misbehaviour and left school after you were expelled from Grade 10 only two weeks into the first term, for starting a fight.  You completed the Year 10 equivalent at TAFE.

19You then went onto work for a concreter and while working as a concreter you completed a number of trade tickets in thermal cutting, MIG, TIG and welding.  When you were in your early twenties, you began a relationship with your partner Serina and she remains supportive of you.  You told Ms Ferrari that she visits you every week in prison and you have a seven year old daughter, with whom you maintain a good relationship.

20You told Ms Ferrari that you are aware that your daughter has been struggling significantly with school recently because of you being in custody, which makes you feel extremely guilty and depressed. 

21You were diagnosed with attention deficit hyperactivity disorder, ADHD, when you were 13 and commenced on a course of Dexamphetamine.  You said this did help you with your behaviour.  You were also apparently diagnosed with manic depression at this time and prescribed two types of antidepressants which impacted badly upon you so you ceased using them.  You left home when you were 15 and ceased all medication, including medication for ADHD.  Apparently along the way, at Newcastle Mental Health you were diagnosed as suffering from bipolar and post-traumatic stress disorder.  You have been prescribed Lithium and Seroquel in the past.  You felt that it did not make much difference.

22When you were about 14 you began using cannabis, using it everyday for a couple of years.  It was around this time that you also became non-compliant with your ADHD medication.  You suffered a hand injury which required surgery and began abusing Endone which is an opiate based painkiller.  You then started using heroin when you were 16 and this apparently has been the most problematic drug for you.  Indeed at the time of your offending, you were using heroin at alarmingly high rates of about 3 grams a day, although you were smoking it rather than injecting it.  You have never injected heroin, which explains the amount of your use.

23By age 18 you were using one to one and a half grams of methamphetamines every day, as like many persons suffering from ADHD, it mimics the effects of Ritalin, which is also amphetamine based.  You said you found it made you feel calmer, less agitated and more focused.  You denied ever having alcohol problems. 

24In 2010 to 2011, following the birth of your daughter, you became abstinent from substances for the first time, lasting for about twelve months.  But your underlying problems with anxiety and trauma which appear to have arisen from the sexual abuse that you suffered, which you had told no one about and for which you had never been treated, resurfaced.  You began using Valium at fairly grandiose levels it would appear because you were then admitted to Newcastle Mental Health for several days.  You have never attended rehabilitation.

25In relation to the offending that has brought you before this court, this appears to have its genesis in your mother suffering breast cancer in 2016.  She underwent a double vasectomy and appears to have recovered and remains in remission.  Apparently her illness sparked off your anxiety again.  You began using drugs at a greater rate and it would seem turned to selling them to support your habit and for that you were dealt with in the way I have described by way of a combination of a gaol sentence and then release on a Community Corrections Order.  Once your partner discovered you were using, again she told you to leave.

26When you were released from gaol, you believed you would be immediately accepted into Odyssey Residential Rehabilitation Services.  The paperwork had been completed, you confidently expected this to be the case.  This did not eventuate, however.  In addition, when you were arrested for the charges for which you were placed on the Community Corrections Order, police investigations also resulted in a raid on your mother's home, where a large amount of money was located.  You pleaded to being in possession of the proceeds of crime, but this was in fact money being held by you on behalf of another drug associate. 

27On your release from gaol, you were contacted by this associate and pressure was put upon you to replace the money that had been taken in the police investigation.  You began your Community Corrections Order and it appears your attendance was good, but you very soon reconnected with old drug associates and fell back into drug use, which appeared then to have skyrocketed in terms of amounts.  Your partner found out, told you to leave and you ended up in the house at Saffron Street.

28It was noted by police that there was something in excess of ten security cameras at these premises.  You have described those premises to your counsel as basically a drug house.  In summary you set up accommodation where you continued with your use, in particular of heroin, and encouraged by the person to whom you owed money and by the skyrocketing costs of your own addiction, thereafter began engaging in trafficking enterprises to a very large degree.

29The possession by you of three firearms I regard as extremely serious and indicative of the level of criminality that was in your life at that time.  In particular, I note the photograph of the sawn-off shotgun shows a relatively new, very powerful weapon.  Sawn-off shotguns are always regarded as indicative of highly criminal behaviour Mr Wilkins.  There is only one reason why a shotgun is cut down and that is in order to shoot people.

30It is always an indication in my view of the level of criminality surrounding the life of a person who owns that shotgun and the sort of people that they are knocking around with.  In addition, you had two further firearms, both of them loaded.  I understand that as a result of your experiences when you were young, at the hands of the molester, you have felt insecure and paranoid about being attacked, but that in no way goes to explain your possession of these three highly dangerous weapons.

31There is no doubt, and it was not submitted otherwise by your counsel, that the only way I can deal with this very serious offending is by way of a term of imprisonment to be immediately served.  There is a bright side to this story however.  It appears that you have used your time in custody extremely well.  You have been held at the Melbourne Remand Centre since you were taken into custody.  Whilst there, you have undertaken a number of impressive courses.  They have included undertaking certificates in metal art welding and gas metal art welding, a certificate in information digital media and technology and in spray painting.  There is a second certificate for gas metal art welding and that is in addition to the usual courses that are undertaken in workplace safety, kitchen operations, barista operations and the like.

32You have undertaken a 24-Hour Drug and Alcohol Program and I received a letter from Ms Reen Porotto who is a clinician with Caraniche which delivers this program.  She described your participation in this program generally as excellent.  She said that you were very active in discussions, you shared your own experiences, you expressed a desire to remain drug free in prison and on release.  She said:

'He demonstrated insight towards the function and resulting consequences of his substance use and completed a personalised model of his substance use cycle, which indicated the function of substances was to cope with negative emotional states in response to past events'.

33She said towards the end of the program you began independently developing a self-management plan which required you to identify potential high risk situations and triggers for his substance abuse in the future.  You maintained goals for abstinence.  Essentially you were fully engaged in this program and that is very much to your credit.  You have undertaken a course in Tuning into Respectful Relationships which I regard is a serious course, which involves two modules of three hour programs.

34You undertook a program called Connecting Dads with Children, Family and Community.  Again, I regard that as a serious program.  You have also been subjected to urinalysis in March and April, which all proved negative for the presence of drugs.  Whilst in gaol, you have been placed on Methadone for the first time.  You told Ms Ferrari and your counsel you regard this as lifechanging and you intend to remain on this for the foreseeable future.

35Of particular importance is that for the first time you have on a weekly basis being undertaking counselling, as a result of which you revealed to your mother recently for the first time that you had been sexually abused.  In her very impressive letter to this court, your mother said that once that revelation was made, a number of things fell into place for her, in particular why your behaviour had become problematic at around that stage in life.

36She said that around that time in your life you began engaging in extremely dangerous behaviours, for example jumping from a house roof and riding in fast cars.  She said:

'It got worse as he got older, fast cars or motorbikes.  Everything Joshua did was on the edge.  I have always been terrified of the late night phone call, or police coming to my door to say he is dead'.

37She described you as a very loving son, a loving partner.  She describes your own partner as being quite saintly in putting up with you over this period of time and I certainly accept that and as an extremely loving father to your own daughter.  But she said that growing up you were very average, you were a typical brother and son and then she said:

'Only in hindsight do I truly see the signs as someone who is in desperate need of help, different help than I knew how to give.  Around 10 or 11 years old, things changed.  This is when all the extreme activity really started'. 

38She said that you also suffered when she finally got you to a counsellor who you really liked and that counsellor, after two years of counselling, tragically committed suicide.  This was an enormous blow to you.  In any event, it is clear that you have an intelligent prosocial law abiding mother who continues to love and support you.  I say the same of your partner Serena Berryman who has written a letter acknowledging the seriousness of your offending, but described you as a 'loving, compassionate, caring partner and father to [y]our beautiful daughter Kiana-Lee'.  She also spoke about you opening up for the first time about the sexual abuse that you had endured.

39Your progress in gaol had been so impressive that you are now being considered for the very privileged role as a peer-support.  It is well known to this court that you have to jump through a lot of hoops to be trusted to that level.  I am satisfied the progress you have made in gaol has been extremely impressive and augers well for your future.  It means that I am able to say that rather than being pessimistic about your prospects of rehabilitation, I can have a guarded positivity about it.

40It was Ms Ferrari's view after administering a number of tests to you that you are still suffering from the effects of post-traumatic stress disorder, as well as a polysubstance abuse disorder for which you have never received treatment.  It was her view that you present with significant mental health issues, including post-traumatic stress disorder, ADHD and underlying anxiety and she believed that those mental health difficulties have led to you self-medicating with illicit substances since your teenage years.

41She stated:

'This has also contributed to his offending behaviour, as it increases risk of impulsive behaviour, recklessness, impaired insight in judgement and increases the likelihood of engagement antisocial acquaintances and in illegitimate behaviour to manage one's habits'.

42She said positively that you do not display any symptoms of mania, psychosis and that is very important for someone who has been using a lot of drugs, or personality disorder.  It means that the intervention that she recommends is more likely to be effective.  Ultimately as I have said from the outset, there is no way that I can deal with you in any other way than a term of imprisonment to be immediately served. 

43However, it was acknowledged by the prosecution that your plea was made at a very early stage and it was accepted that the materials presented on your behalf, as to your rehabilitation in gaol, were impressive and improved the prospects for rehabilitation which are really important.  That is because a person without prospects of rehabilitation is then assumed to be a danger to the community.  If a Judge is sentencing only with an eye to keeping the community safe, then the gaol sentence is going to be much longer.  I acknowledge the progress that you have made and that you have managed to maintain the support of a loving and prosocial family, (indeed your partner is prepared to have you live with her again when you leave gaol). 

44I am not obliged only to have regard to community safety in sentencing you.  Principles of general deterrence, that is a term of imprisonment which is designed to send a message to those in the community who behave as you do, that if they are going to offend that way, they can only expect this sort of treatment at the court, as well as specific deterrence do apply.  I am satisfied you are remorseful for your offending, but you still have got a way to go.  As well there must be some denunciation for your conduct in being involved in the delivery of such a large amount of ice, which is such a damaging drug to the streets and forms a significant part of the sentencing exercise I must undertake.  Having taken into account all the matters that I have outlined, I therefore sentence you as follows, and I need you to stand up sir as I go through each charge.

45Charge 1, you are sentenced to three years imprisonment.  Charge 2, you are sentenced to twelve months imprisonment.  Charge 3, you are sentenced to four months imprisonment.  On each of Charges 4, 5 and 6, which are the firearm offences, you are sentenced to two years.  Charge 7, you are sentenced to six months imprisonment.  Charge 8, you are sentenced to six months imprisonment.  Charge 9, you are sentenced to four months imprisonment.  Charge 10, you are sentenced to eight months imprisonment.

46Summary Charge 11, you are fined $200.  Summary Charge 14, you are sentenced to six months imprisonment.  Summary Charge 23, you are sentenced to six months imprisonment and Summary Charge 25, you are sentenced to six months imprisonment.  I order that the base sentence for the sentence imposed on Charge 1, I order six months of the sentences imposed on charges 2, 4, 5 and 6, and two months of the sentences imposed on Charges 7, 8, 10, 14, 23 and 25 be served cumulatively to the sentence imposed on Charge 1 and all other sentences.  This gives a total effective head sentence of six years.  I order you serve a minimum term of three years and six months.  I have already declared the pre-sentence detention of 297 days. 

47Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of eight years with a minimum of six years.  Have a seat sir, I just need to sign the ancillary orders.  Now that $200 you are probably going to be unable to come up with.  It will probably end up being the whole of the money you will earn whilst you are in gaol actually.  That can be done by way of an extra day or so in gaol or something like that, I understand, all right.  You just need to enquire about that.

48I also note that you have made enquiries to link up with Narcotics Anonymous.  Importantly, I make the comment that in my view, it is very necessary that you continue to be dealt with in a prison environment which contains as many rehabilitative programs as possible.  It is because for the first time in gaol, you have received appropriate psychological counselling and drug treatment, that you have made the progress that you have and that progress has been extremely impressive.

49To quote Ms Ferrari whose report will be sent to the gaol authorities, she stated that you are considered a moderate risk of reoffending if you continue to use drugs, but this could be mitigated to low. 

'On the condition he is provided with intensive psychological intervention related to his mental health which he has never had consistently in the past.  Addressing his mental health is paramount to reducing his reliance on substance abuse', that is because you self-medicate, 'and thus his risks of reoffending.  He has demonstrated emotional maturity, ability to reflect on his actions, has accepted responsibility for his behaviour, demonstrates understanding and remorse into the gravity of his behaviour at the time of the offending, instructing that his actions were heavily influenced by his mental state at the time and being drug affected'.

50She makes the obvious comment Mr Wilkins that you need to keep yourself away from your former drug associates.  All right, thank you.  Is there anything else that I need to attend to?

51MR BATTEN:  There's one matter I overlooked to point out, Your Honour, and that is that the theft of the motor vehicle charge, Charge 10. 

52HER HONOUR:  Yes, you have got to lose your licence.

53MR BATTEN:  That carries a mandatory licence cancellation.

54HER HONOUR:  Twelve months, yes.  All licences are cancelled.  You are disqualified from obtaining any further licence for a period of twelve months.  Can that operate when he is in gaol or does it have to operate when he gets out?

55MR BATTEN:  It can operate whilst he's in custody, Your Honour.  Well that's how I understand it.

56HER HONOUR:  It is my preference that it does.

57MR BATTEN:  Yes.

58HER HONOUR:  The sort of work he does, he is going to need his licence and I would rather he is back at work when he gets out ‑ ‑ ‑

59MR BATTEN:  Yes.

60HER HONOUR:  ‑ ‑ ‑ rather than - yes all right then, thank you.  Is everyone clear on everything?  Have I attended to everything?

61MR BATTEN:  And there was the ancillary orders, will Your Honour sign those?

62HER HONOUR:  I have just signed them.

63MR BATTEN:  Yes.  Thank you, Your Honour, I think that's all.

64HER HONOUR:  That is done.  Thank you.  Good luck Mr Wilkins.

65MS McGARVIE:  As Your Honour pleases.

66HER HONOUR:  I thank counsel for their assistance in this matter.  Thank you for your terrific paperwork Ms McGarvie, in particular.

67MS McGARVIE:  Thank you, Your Honour.

68HER HONOUR:  Yes thank you, we will adjourn to 9.30 tomorrow morning.  I might just give you back - Ms McGarvie I have got copies of them, the originals of your certificates.  I would hate to lose them, there is every chance I will.

69MS McGARVIE:  As Your Honour pleases.

70HER HONOUR:  Thank you sir.  He can be taken down now.

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