R v Joel Westman; R v Flinn Westman

[2021] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:

R v Joel Westman; R v Flinn Westman [2021] NSWDC 234

Hearing dates:

16 April 2021; 27 May 2021

Decision date:

31 May 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Joel Westman: See [166]-[170]

Flinn Westman: See [171]-[175]

Catchwords:

CRIME - Drug offences - Supply prohibited drug –Large commercial quantity – MDA

CRIME - Drug offences - Supply prohibited drug - Commercial quantity - Cocaine

CRIME – Personal violence offences - Aggravated take and drive motor vehicle with assaults

CRIME - Criminal Groups - Direct criminal group - instructing, guiding, counselling, overseeing, commanding and leading their subordinates towards the accomplishment of organisational goals of their supply operation

CRIME - Confiscations - Forfeiture order - Proceeds of crime order

CRIMINAL PROCEDURE - Back up and related offences - Procedures

CRIMINAL PROCEDURE - related offences - determination of guilt

CRIMINAL PROCEDURE - Sentencing - contested facts

SENTENCE - Drug offences - Supply prohibited drug - Large commercial quantity- MDA

SENTENCE - Drug offences - Supply prohibited drug - Commercial quantity - Cocaine

SENTENCE - Criminal Groups- Direct criminal group-

SENTENCING - Relevant factors on sentence -Multiple offences - Forms 1 - Aggregate sentences SENTENCING - Relevant factors on sentence - Factual basis for sentence - Multiple offences - COVID 19 - Drug use - Parity

SENTENCING - Subjective considerations on sentence - Youth and immaturity - Solid prospects for rehabilitation - childhood exposure to domestic violence - strong family support - Special circumstances

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989

Crimes Act1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Drug Misuse and Trafficking Act 1985

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Afu v R [2017] NSWCCA 246

Attorney General’s Application No. 1: (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571

Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159;

DPP v Colakoglu [2015] NSWCCA 301

Green v The Queen (2011) 244CLR 462

Grube [2005] NSWCCA 140

Hamzy v R (1994) 74 A Crim R 341

Henry v R (1999) 46 NSWLR 346

Howard v R [2019] NSWCCA 109

Jadron v R [2015] NSWCCA 217

JM v R [2012] NSWCCA 83

Kristensen v R [2018] NSWCCA 189

KT v R (2008) 182 A Crim R 571

Markarianv The Queen (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Muldrock v The Queen (2011) 244 CLR 120

Paxton v R [2011] NSWCCA 242

Postiglione v The Queen (1997) 189 CLR 295

R v AEM [2002] NSWCCA 58

R v Carter [2003] NSWCCA 243

R v Chan [1999] NSWCCA 103

R v DW [2012] NSWCCA 66

R v Hall [2013] NSWCCA 47

R v Herring (1956) 73 WN (NSW) 203

R v Lulham [2016] NSWCCA 287

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Tuki (No. 4) [2013] NSWSC 1864

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

R v Windle [2012] NSWCCA 222

Ryan v The Queen (2001) 206 CLR 267

Tepania v R [20018] NSWCCA 247

The Queen v Olbrich [1999] HCA 54 at [19]; 199 CLR 270

Texts Cited:

Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011 BOCSAR;

Second Reading Speech, Crimes Legislation Amendment (Gangs) Bill 2006, Hansard, Legislative Assembly, 30 August 2006

Category:

Sentence

Parties:

Joel Westman (1st offender)
Flinn Westman (2nd offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Djemal (for each offender)

Solicitors:
Sayad Sahinovic Legal (for each offender)
Mr R Taylor (for Director of Public Prosecutions)

File Number(s):

2019/00255791 (1st offender)
2019/00255885 (2nd offender)

Publication restriction:

Publication restriction - Suppression order made 14 April 2021 re proceedings held in closed court – portion of judgment redacted

Nonpublication order for [130] to [134] of judgement- which portion is redacted from any published judgment.

SENTENCE

Introduction

1. Joel Westman and his twin brother Flinn Westman are to be sentenced today for three serious offences;

1. Supply commercial quantity of prohibited drug (557.2 grams cocaine); s25(2) Drug Misuse and Trafficking Act 1985 (DMTA 1985) : maximum penalty 20 years imprisonment and/or a large fine; standard non-parole period 10 years.

2. Supply large commercial quantity of prohibited drug (1.218 kilograms of Methylenedioxyamphetamine (MDA): s25(2) DMTA 1985 maximum penalty life imprisonment and/or a large fine; standard non-parole period 15 years.

3. Aggravated (in company) take and drive motor vehicle with assault: s154C(2) Crimes Act1900: maximum penalty 14 years imprisonment; standard non-parole period 5 years.

2. They have also admitted their guilt to other charges. Three other charges have been placed on a Form 1 attaching to the supply cocaine count for Joel Westman:

1. Supply commercial quantity of prohibited drug (307.78 grams MDMA) – s25(2) DMTA 1985.

2. Deal with property reasonably suspected of being proceeds of crime ($24,360) – s193C(2) Crimes Act 1900.

3. Supply prohibited drug (143 grams of butyrolatone);s25(1) DMTA 1985

3. Two other charges have been placed on a Form 1 attaching to the supply cocaine count for Flinn Westman:

1. Supply commercial quantity of prohibited drug (307.78 grams MDMA) – s25(2) DMTA 1985.

2. Deal with property reasonably suspected of being proceeds of crime ($24,360) – s193C(2) Crimes Act 1900.

4. The guilty pleas were indicated in the Local Court. Ordinarily each sentence would be reduced by 25% to reflect the utilitarian value of those pleas. However, here while all but one the pleas were entered earlier it was foreshadowed that there would be a dispute about a number of facts said to be critical to this sentencing exercise and my fact finding. As the factual dispute related primarily to a contested summary matter the Director of Public Prosecutions (DPP) did not ask the discount be reduced: s25 F(4) Crimes (Sentencing Procedure) Act 1999 (C (SP) Act 1999).

5. I will take care when I aggregate the indicated sentences not to erode any benefit given for the early guilty pleas. Despite the challenge to the aggravated form of one summary related matter advanced by the DPP the guilty pleas and early acceptance of responsibility do enable me to have some confidence in accepting other evidence that the offender’s criminal behaviour should not chart the course of the rest of their lives; and in concluding that with assistance, psychological treatment and the family support offered they may not offend again.

6. A plea of not guilty was entered to another related offence of “knowingly direct activities of criminal group:” s93T(4A) Crimes Act 1900. That charge was sent to this court pursuant to a s 166 Criminal Procedure Act 1986 certificate. I was asked to determine that matter. It was accepted that if I found the offenders not guilty of that charge the facts disclosed the statutory alternative count of participating in a criminal group: s 93T(1)(a).

7. Other supply charges are to be withdrawn and dismissed as the quantity of cocaine and MDMA supplied is now a single charge with a “rolled up” quantity of the drug. This accumulation was accepted by the defence. In each case this was entirely appropriate: Hamzy v R (1994) 74 A Crim R 341: Jadron v R [2015] NSWCCA 217.

The Prosecution seek Drug Proceeds Orders and Forfeiture Orders.

8. The Forfeiture Orders relates to cash seized the offender on arrest on 16 August 2019 - $23,960 at the home and $900 in a room belonging to Flinn Westman: revised statement Detective Senior Constable Piggot, 16/4/2021. The total amount of both forfeiture orders is not disputed, as long as the individual orders did not exceed to total amount of cash seized. An order against each offender for their share of the amount seized will be made: For Joel Westman- $11,980 and for Flinn Westman- $12,880.

9. The Drug Proceeds Order relates primarily to $57,150 pre-recorded “buy money” paid by an undercover operative (UCO) for cocaine and MDMA supplied by the Westmans. That buy money was not the same cash found on arrest. The amount of each offender’s Drug Proceeds order was put in dispute: see below [157] – [156].

Agreed facts

10. The agreed facts are extensive; what follows is a summary.

11. In June 2019 Joel Westman and Flinn Westman (the offenders) came under notice of Police during their investigation into the supply of prohibited drugs in the South Coast Region. The offenders engaged in the business of sourcing prohibited drugs and supplying prohibited drugs for profit.

12. Between June and August 2019, police lawfully monitored the activities of the offenders. Numerous covert investigation techniques were used, including a controlled operation, telephone intercepts, physical and covert surveillance. Optical surveillance devices (OSD) were lawfully installed inside and outside rented apartment in Coniston, where the offenders resided.

13. The offender’s associates included Shaun Lane, Hunter Harrison, Colby Campbell, Nikita Campbell, Luke Westman, Scott Crowther, David Ognenovski and Alex Watson. I have sentenced Lane, Colby Campbell and Ognenovski: R v Lane [2020] NSWDC 643; R v Campbell [2021] NSWDC 122; R v Ognenovski (2020) NSWDC 884. Harrison, Daniel Westman, Crowther and Nikita Campbell were dealt with in the Local Court. On 20 August 2020 I heard Colby Campbell’s sentence appeal. On 28 August 2020 I heard Nikita Campbell’s sentence appeal.

14. The offenders and their associates, were captured on the OSD discussing with the offenders; requests for and the collection of drugs, reporting back following supplies and returning large sums of cash to the offenders. It is alleged that throughout the course of the investigation, a number of these people worked under the offender’s instructions.

OSD Evidence

15. The offenders were captured on the OSD discussing their supply operation. The OSD captured a number of important conversations which were set out in the agreed facts. While, with a few minor exceptions, what was said is not in dispute, there are differences between the parties about how what was said can and should be interpreted. Some conversations appeared be more boastful than accurate and some referred matters that could not be factually correct and may have been misheard or mis-transcribed but the essence of what was said and done is reasonably clear.

16. In their conversions they speak about; debts as being on ‘tic,’ ounces as “occas”; heroin as “rack” and MDMA as “M”. As is often the case despite Imperial measure having been out of general use since before the offenders were born, they are used interchangeably with metric measures.

17. The offenders are recorded having conversations regarding current supply levels and the prices they previously bought and sold drugs for. They speak about taking over the business of other dealers. Joel Westman boasts, “I said to him, bro, me and my brother are pushing at least 120 occas a week…” They also discuss their debt to their up-line supplier which on July 10 was $54,000. At that time the pair had $28,000, although Joel Westman responded “I thought it was 40?”

18. The two are caught jointly and individually speaking to associates who purchased from them topics such as:

1. Bashing people.

2. Pushing heroin.

3. How much Harrison should charge for heroin: to which Joel responds “seven five”.

4. Cutting heroin to allow for greater profit.

5. Describing down-line customers as “runners.”

6. The debts owed to them by down-line customers, including a substantial debt owed by Lane.

7. Down-line customers “selling for them.

8. How they had been “doing this for years.”

9. How Lane worked for them.

10. How they would supply both for cash up-front and on “tic.”

11. That Joel Westman had a separate Snapchat for his runners. It appears

12. Both brothers had separate down-line customers or runners. And if they took the others runners they also took their on “tic” debt.

13. The two discuss the amount on each of their “tic lists.”

14. Their suspicion that another same level dealer Dave OGNENOVSKI is “ripping them off” and how they’re losing money. Flinn Westman says “he sells three occas a week and all for 9k each… we charge him $7,400 – $7,500 he’s making 9k a week to himself”.

15. Their predicament when there is not enough drugs left to sell to meet their debt to their up-line supplier.

16. Arguing about Flinn Westman’s girlfriend and the impact of her on their relationship and drug supply activities.

17. How their business is “50/50.”

18. How much Colby Campbell owes for drug purchased by him.

19. The purchase price of “A grade” or “B Grade” cocaine.

Aggravated take motor vehicle with assault in company (s154C(2) Crimes Act 1900)

19. On 14 July 2019, lawful telephone interceptions recorded the offenders discussing their intention to attend the home of Brent Rabbitte. He owed an associate of the offenders, Crowther money from the supply of prohibited drugs. Joel Westman is also recorded on the OSD on 12 July 2019 telling an associate about the debt owed by Rabbitte. Joel said, “I’m gonna get him, take his car, he owes me 4k … I’m gonna get that dog.”

20. Before going to Rabbitte’s house on 14 July 2019, Flinn Westman called Crowther (who was not then in Australia) and asked “how much does Rabsy owe exactly ... so I don’t look like an idiot.” Crowther told the offenders “I think it’s maybe like 5 or 6, it’s not much man”. The offenders said they were going to go around there to “get him for everything”, “take all his shit”, “bash the fuck out of him” and “take his car”. Crowther asks the offenders to wait until he gets back, but Flinn Westman says “I gotta go tonight”.

21. When the offenders arrived at Rabbitte’s home, Joel Westman called Crowther and again asked how much Rabbitte owes. They agreed to put Crowther on loud speaker when they confronted Rabbitte.

22. Throughout several intercepted telephone calls, the offenders can be heard on the phone with Crowther (on loud speaker) while they all argue with Rabbitte about how much he owes. Crowther tells the offenders several times to “punch the cunt in the face for me… .shut him up…break the cunt’s fucking jaw”. Flinn Westman tells Crowther, “I already have bra, I’ll do it again”. Rabbitte says “I’m not scared of you, you fucking gronk”. One of the offenders can be heard saying “give me the fucking car or you’re get stabbed”.

23. Rabbitte protests that he has paid Crowther. Joel Westman says “even if he owes you money, we’re a different bill … I shouldn’t have to lose money because someone owes you money.” Flinn Westman says to Rabbitte, “you’re going to give me your car or I am going to slice you, I promise you, you’re going to give me your car or I am going to slice you.” Joel Westman said “nah we take shit, we want shit”.

24. At one stage, Flinn Westman asks how much the car is worth. One of the offenders says “give me the fuckin thing before I chop the cunt … You’re getting chopped, give me the car”. Rabbitte says “ok take the car bro”. The offenders take the white BMW and leave.

25. Flinn Westman later says to Crowther “I pumped Rabsy ay” and “he bridged up to me for like one second, I was like ‘what cunt’ and boom hit him, one shot on the ground and I started like laying into him”. Crowther asked, “Did you whack him hard?” to which Flinn Westman responded, “Yeah I fucking pumped him he was crying”. Crowther asks ‘did you whack him when I kept saying punch the cunt in the face’ Flinn says “yeah about 10 seconds later”. The two continue to discuss the debt owed to Crowther by Rabbitte. Crowther says “the car is shit, I told youse man, you just wanted to go get someone”. Flinn Westman laughs and responds, “yeah I know”.

26. During the course of the police investigation it was revealed that the registered owner of the BMW was the partner of Rabbitte’s mother.

27. Surveillance has confirmed that the offenders took this vehicle and used it regularly, including for their drug supply activities, up until the date of their arrest.

Supply commercial quantity of MDMA (307.78 grams) - Form 1

Supply commercial quantity of cocaine (557.2 grams)

28. Between 17 July 2019 and 16 August 2019, the offenders supplied a total of 307.78 grams of MDMA across five occasions. Four of those supplies were to a UCO, as part of a controlled operation. The UCO was introduced to the offenders by Lane.

29. Between 17 July 2019 and 16 August 2019, the offenders supplied a total of 557.2 grams of cocaine across six occasions. Four of those supplies were to a UCO, as part of a controlled operation.

30. On 17 July 2019 Lane left the apartment in Coniston with Colby Campbell and met with the UCO at the Wollongong light house. The UCO then met with Joel Westman, Lane and Colby Campbell at the KFC, Princes Highway Unanderra. All three males were travelling in the white BMW. They supplied 27.8 grams of cocaine and 98 grams of MDMA for which the UCO paid $12,500. The cocaine and MDMA was analysed. The cocaine had a purity of 81% and the MDMA a purity of 76%.

31. Lane and Campbell are captured on the OSD returning to the apartment after the supply. Once inside, they discuss their dealings with the UCO and count the cash from the supply.

32. On 22 July 2019, the UCO began negotiations with Lane for the supply of two ounces (56g) of cocaine and two ounces (56g) of MDMA. These negotiations were captured through the encrypted application ‘Snapchat’.

33. On 25 July 2019 Lane was recorded on the OSD discussing this transaction with Joel Westman. He then met the UCO at the KFC, Princes Highway, Unanderra. Lane said he would lower the MDMA’s price to $1,500 per ounce and the cocaine to $7,500 per ounce totalling the cost for supply to $18,000. Lane was monitored and recorded as he supplied the UCO with 55.98 grams of MDMA and 56 grams of cocaine a cost of $18,000. The cocaine and MDMA were analysed. The cocaine had a purity of 86% and the MDMA a purity of 76.5%.

34. After the transaction Lane returned to the apartment in Coniston. He was captured on the OSD giving the cash to Joel Westman. Joel Westman said, “Kita, can you start counting? 18k here” to which Lane responded, “there should be”. Nikita Campbell counts the money. One of the offenders said “I don’t get to keep all this, I wish I did” at which stage Lane said “I tell people I do”.

35. On 25 July 2019 Lane was captured on the OSD asking Joel Westman for “another two occa’s of rack”. Joel Westman removed a clear resealable bag containing two ounces (56 grams) of cocaine and placed it on the table.

36. Lane was recorded saying he would return to the premises shortly to collect the cocaine. Lane put the bag of cocaine in the front pocket of his jumper and left the premises.

37. On 29 July 2019, the UCO began further negotiations with Lane for the supply of three ounces (84g) of cocaine and three ounces (84g) of MDMA. These negotiations were captured through the application ‘Snapchat’.

38. On 31 July 2019 at approximately 19:30, the offenders are recorded on the OSD packaging drugs. At 20:30, Flinn Westman provides instructions to Watson on how to get to Lane and to message Lane on arrival.

39. Watson attended Lane’s residence and provided Lane with three ounces of cocaine and three ounces of MDMA to be supplied to the UCO.

40. On 1 August 2019 Lane met the UCO at the West Leagues Club, Unanderra. Lane supplied the witness with 83.8 grams of MDMA and 83.4 grams of cocaine. The UCO handed Lane $27,000 in cash in a ‘Coles’ branded plastic bag. Lane then exited the vehicle and the UCO left the location. The cocaine and MDMA was analysed. The cocaine had a purity of 81.5% and the MDMA a purity of 76%.

41. Telephone intercepts then record Flinn Westman and Lane arranging to meet at Lane’s residence. Flinn Westman returned to Coniston carrying a ‘Coles’ plastic shopping bag. He handed it to Joel Westman and said, “Shaun counted it”.

28. On 8 August 2019 Luke Westman was captured on an OSD picking up a bag containing a white substance from the table. He asked Joel Westman, “Is that Dan’s?” Joel Westman replied, “no ...”

29. Luke Westman reached into a Coles shopping bag on the table and removed a freezer bag and held it up. The bag contained an estimated 3 ounces of cocaine (84 grams). Luke Westman left the premises in the possession of the cocaine.

30. On 5 August 2019, the UCO commenced negotiations with Lane for the supply of 13 ounces of cocaine and 2 ounces of MDMA, this was an amount greater than previously sourced by the UCO. These negotiations were captured on the application ‘Snapchat’. Following this, Lane began arranging the supply with the offenders.

31. On 14 August 2019, Lane messaged the UCO and said his “guy” was not able to provide that much cocaine without payment first, because they had to source it and pay for it first. He also said his “guy” was a “bit iffy” about the supply and was “being paranoid”.

32. On 15 August 2019, there was an agreement to supply the revised quantity of 8 ounces (224 grams) of cocaine and 2 ounces (56 grams) of MDMA.

33. The OSD recorded several lengthy conversations between the offenders in which they discussed the above supply, including how they would source the drug, their concerns surrounding the weight being a commercial quantity, and the money required for the supply, which they did not have.

34. On 14 August 2019, Joel Westman said to Flinn Westman – “we’ll make a lot of money out of this chick this week Flinn”. Flinn Westman responded “I hope so.”

35. On 15 August 2019, the offenders were making arrangements to go to Sydney and collect cocaine. Harrison, arrived and Flinn Westman said to him “we need to go to Syd bra and get more, like I don’t have a car, but its only 50 minutes away”. Shortly thereafter, Flinn Westman and Harrison left the apartment and returned home later with the cocaine.

36. Flinn Westman is recorded on the OSD re-packaging this cocaine. Harrison asked, “what time are we meeting?” to which Flinn Westman responded, “be here at 8.30/9”. A surveillance camera captured Flinn Westman placing a white plastic bag into the boot of the white BMW.

37. On Friday 16 August 2019, police executed a search warrant at the apartment at Coniston and searched the BMW. Inside the boot of the vehicle were 2 clear resealable bags containing 250 grams of cocaine. The agreement to supply the witness was for a weight of 224 grams of Cocaine. The 56 grams of MDMA, agreed to be supplied, was not found during the execution of the search warrant or anytime thereafter.

Supply large commercial quantity of 3,4-methylenedioxyamphetamine (MDA/ecstasy – at least 1.218 kilograms or 4,200 pills

52. On 31 July 2019 surveillance devices recorded Colby Campbell attending the Coniston address carrying a large clear plastic bag containing 4,200 MDA pills, wrapped in a fluorescent orange shirt.

53. Campbell said to the offenders, “so there is some missing, but there’s more than 4 … they’re good, they’re the euros”. The offenders and Colby Campbell are captured on the OSD sitting at the table and discussing the product, including the method of manufacture and whether some of the pills are “dodgy” or “half cut”. Flinn Westman said to Campbell, “so these are proper MDA hey?”

54. The offenders and Campbell then started weighing and packing the product into smaller bags of 100. They count out 4,200 pills.

55. Joel Westman tells Flinn Westman that they have to pay cash for the pills. Campbell says he has to “fix them up tomorrow”. Joel Westman asked Campbell, “how many did you want? Joel Westman said “I might keep that four two, and you have three hundred”.

56. On 16 August 2019, approximately 354 pills bearing a euro stamp (€) were seized from the house of Daniel Westman, a brother of the offenders. The pills were brown in colour and weighed 0.29grams each with a total of 102.5 grams. Forensic testing has confirmed the pills to be 3,4 methylenedioxyamphetamine (MDA/ ecstasy) at a purity of 7%.

Arrest and Search

57. On Friday 16 August 2019 at 06:35, a search warrant was executed at the apartment in, Coniston. The offenders were present, together with Nikita Campbell.

58. During the search the following items were located and seized:

1. A White BMW;

2. 150 millilitres (134 grams) of the prohibited drug Gammabutyrolactone (GBL). This was located in the bedroom of Joel Westman

3. $23,460 was located in the lounge room and the BMW, and an additional $900 cash was located in Flinn Westman’s wallet

59. The offenders were arrested and cautioned, at which time they were conveyed to Wollongong Police Station. Both offenders exercised their right to silence when asked questions about the offences. Both have been in custody since their arrest.

A related offence - Direct criminal group

60. Before I proceed to sentence I must determine the related offence for which not guilty pleas were entered. A court dealing with an accused person for an indictable offence following the person’s committal for sentence may deal with any related offence unless to do so would not be in the interests of justice. Both parties submitted that I should hear and determine this matter for both defendants: s 167 (2)(b) Criminal Procedure Act 1986.   I accept and agree with those submissions.

61. I deal with a related offence, without a jury, on the basis only of evidence given with the leave of the court. In dealing with a person for a related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court: s168 Criminal Procedure Act.

The evidence

62. By leave I received the entire prosecution brief as evidence. I saw and heard 6 extracts from the OSD installed in the Westman’s unit. The DPP called Detective Senior Constable Piggot to explain who was who and help me follow what was being said and done. By leave I received the defence sentence exhibits on this point.

63. Flinn Westman gave evidence. He told me that after being introduced to supplying small quantities of drugs by Crowther, he and his brother found their own up line supplier and expanded their business. It was a whole sale business. They did not deal directly with users. He said they were constantly in debt to their supplier and were owed large debts by those they supplied to on ‘tic.’. They entered arrangements to try to ensure their debts were paid. They would on occasions deal with Ognenovski and on one occasion Colby Campbell was able to obtain a large quantity of pills which they presumed were MDMA but were in fact the MDA the subject of one of today’s sentence matters.

64. They started small but by mid-2019 were moving the type of quantities set out in the agreed facts

65. He told me they were not moving “120” ounces per week: Exhibit A - Agreed Facts paragraph 7(a). Where that is said in the transcript of the listening device it was an example of “big noting”. He said in evidence they could move up to ½ a kilogram (17 ounces) per week. He told me that 60% of his sales were cocaine and 40% was MDMA but that he made more profit from MDMA sales. An ounce (28g) of MDM could be bought for $550 and sold for $ 1,300. Cocaine could be bought for $6,200 per ounce and sold to good customers such as Lane for $7,000 and others for $7,500.

66. He said they were ounce suppliers and generally only supplied to friends who carried on their own business. They did not know who those persons’ customers were.

Submissions

67. Mr Taylor, who with Ms Bird, appears for the Director of Public Prosecutions (DPP) points to the activities recorded that show how the Westman’s positioned themselves in the hierarchy of supply and what the OSD reveals they said and did.

68. Mr Djemal, for both offenders, says the evidence reveals there was no syndicate with a hierarchical structure, such as in the military or a bikie gang. He says this was not a “classic” situation where a dealer uses runners to take small quantities to their customers often caught by s 25A DMTA 1985.

69. Rather, he submitted that it is open to me to find that each offender simply played a role in a distribution chain, sourcing drugs from up-line suppliers and supplying to dealers down the line who made their own profit. Those down-line customers were friends; subcontractors not subordinates. He submits that all each offender did was take his cut or added margin and a relatively small one at that - more akin to delivery driver than a syndicate boss.

Directions

70. As with every contested matter the onus of proof is and remains on the prosecution who must prove each critical element of a charge to the high standard of beyond reasonable doubt. My verdict must be based on the evidence before me and the logic of events I find have been established.

A “criminal group” means a group of 3 or more people who have as their objective or one of their objectives—

1. (a)  obtaining material benefits from conduct that constitutes a serious indictable offence, or …

(2)    A group of people is capable of being a criminal group for the purposes of this Division whether or not—

(a)  any of them are subordinates or employees of others, or

(b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity, or

(c)  its membership changes from time to time: 93S Crimes Act 1900.

A person who participates in a criminal group whose activities are organised and on-going by directing any of the activities of the group is guilty of an offence if the person—

(a)  knows that it is a criminal group, and

(b)  knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity: s 93T (4A).

71. The word “any” is an important one; so too is the word “group.” “Group” means a number of people or things gathered.

72. The Macquarie Dictionary notes that “direct” means; “to guide or manage…to give instructions…to command or order.” “Directing” in the context of this offence thus refers to a process of instructing, guiding, counselling, overseeing, commanding and leading people towards the accomplishment of organisational goals as part of the managerial process of the organisation.

Determination

73. Drug supply operations rarely have organisational charts or written business plans. More often than not they involve loose arrangements sometimes “one off” or sporadic and spontaneous based on demand and available supplies. So much is apparent here from the limited information I have been given.

74. I was not given any information about the police operation I assumed was conducted into whoever was supplying to the Westmans. The only information I got was that this court is unlikely to see any of the up-line suppliers.

75. This is not an industrial relations court. Drug supply operators do not enter into workplace agreements. I focus on what has been proved each offender did. I do not use labels for, as here, as in “many cases, the full nature and extent of the enterprise is unlikely to be known to the Court:” The Queen v Olbrich [1999] HCA 54 at [19]; 199 CLR 270; Paxton v R [2011] NSWCCA 242. It matters little whether Lane, Campbell and Harrison are labelled as “runners” or “customers” of the Westman’s wholesale operation.

76. Both offenders supplied to a number of people; some were at the same level for example Ognenovski. He had his own up-line supplier but on occasions would need help from the Westmans if he was short and I presume would do the same for them. But others such as Colby Campbell, Lane and Crowther were lower in the hierarchy. While not technically employed they were subordinates. They were in debt to the Westmans. They reported to them and cooperated with the Westmans so as to ensure any debts any owed by them were repaid. For example; Lane’s dealings with the UCO and the efforts the Westmans made to force Rabbitte to hand over his BMW to cover a debt Crowther owed them. On at least one occasion Watson was used as a “driver.”

77. Although, a girlfriend, Ms Campbell also did as she was asked and participated in the packing of the drugs. The evidence, including their own admission shows that the Westmans did give directions about prices, quantity and how the drugs were to be distributed. They advised Lane in dealing with the UCO. They directed and worked with Crowther to seize the BMW. True it is they had no say over most of the customers of their subordinates who were in essence independent contractors but it is not necessary for the DPP to establish they were acting as leaders in a military style hierarchy.

78. The offender’s actions involved giving directions to others in the criminal group. Because they had access to the up-line supplier and were owed money by their subordinates they were able to exercise some control and were thus directing the criminal group. The OSD evidence shows them instructing, guiding, counselling, overseeing, commanding and leading their subordinates towards the accomplishment of the organisational goals of their supply operation. They managed others as part of their loose organisation The Westmans oversaw and lead and thus ’directed” others such as Nikita Campbell and Watson and their loose group of down-line suppliers.

79. The offence of directing a criminal group has been proved beyond reasonable doubt.

Objective seriousness

80. Flinn Westman gave evidence. That evidence related to all the matters for sentence. It also revealed other offending that has not been the subject of charges and accordingly is not for sentence today. Those matters provide a context and go to show the offences for sentence were not isolated. I do not punish the offenders for other offences they disclosed. Flinn in his evidence and both offenders in the material tendered showed a commendable frankness and openness to the court. That evidence helped me assess their credibility and prospects for the future

Objective seriousness – criminal group

81. There is a graded hierarchy of offences in s.93T Crimes Act 1900. The basic offence under s.93T(1) involves participation in a group. The offence here involves direction of the group, and has a correspondingly higher level of culpability.

82. The level of engagement and persistence of a participant is important as is the actual knowledge of acts perpetrated by others in the group..

“The offences now contained in s.93T were introduced in recognition of the fact that crimes committed by gangs, whether they be crimes of violence, armed robberies or drug supply offences, are "a far greater threat to the safety and wellbeing of the community than most crimes committed by individuals acting alone:" Second Reading Speech, Crimes Legislation Amendment (Gangs) Bill 2006, Hansard, Legislative Assembly, 30 August 2006; R v Tuki (No. 4) [2013] NSWSC 1864.

83. The facts establishing the criminal group offence included all the other matters for sentence. but also went beyond the facts relied on for the other sentences and the matters on the Form 1s. Section 93T however requires some independent punishment in an attempt to deter the formation of criminal gangs or confederations, loose or otherwise. And s 93T(4A) is aimed at those who direct such group.

84. This is not however a case where the offenders were “Mr Bigs” or even “Mr Big Enoughs” in the Hollywood movie sense. As the facts make clear they were young men just out of their teens who chose to build up a business supplying at the ounce or 28 gram level but whose business model was still developing. It was also marred by the offenders use of their products. They used others. They cooperated with others such as Ognenovski but they also recruited friends an as down-line suppliers. Those friends had their own business but at times, as the evidence makes clear, acted under and pursuant to the directions of the offenders. The offender’s motivation however was not to control a criminal empire by rather to ensure debts owed to them could be repaid so they could meet the demands of their own up-line suppliers, to whom they owed substantial debt.

Objective Seriousness - Drug Supply

85. Starting small, street-level dealers, mainly to friends at the time, the police started monitoring them. The offenders were able to supply ounces of both MDMA and Cocaine. They had a plan and used down-line suppliers who they knew to maintain security and avoid detection. As with most small businesses the set up stage involved going into debt but if allowed to continue the business could have returned considerable profit. That was what was intended. The OSD material in the agreed facts indicates the offenders falling into the role of drug dealer however they had not yet, thankfully, made the profits necessary to live the lifestyle. They were still operating from a modest rented apartment and had not accumulated many possessions.

86. The seriousness of the particular offences before the Court are reflected in the maximum penalties of respectively, life imprisonment, 20 and 15 years and the fact that Parliament has sought fit to fix a standard non-parole period of 15,10 and 5 years. I must have regard to each maximum penalty and each standard non-parole period when I come to indicate the appropriate sentences in this case.

87. The quantity of the drugs supplied, the harm that drugs cause the community, and the community interest in appropriate and just punishment of such offences means only a substantial full time custodial sentence could properly reflect the objective seriousness of these crimes and meet the various purposes of sentencing: s 3A C (SP) Act 1999. Each offender must go to gaol for a significant and telling period. It must be made perfectly clear that those who engage in the sale of drugs for profit, if caught, will almost inevitably end up in gaol. A sentence must by its severity attempt to deter others. People who are tempted to supply drugs must ask themselves a simple question: is it worth it? The answer to that question is a simple No. If you supply drugs and get caught it, you will end up in gaol for a long time!

88. The number of instances of supply particularised for each of the drugs is important so are the number and regularity of the individual supplies. Their business, and it was a business involved repetition, it was systematic and organised. The cocaine offence (and the MDMA matter on the Form 1) involved accumulation of drug quantities from many transactions. As it is axiomatic that rolled up quantities involves a series of criminal acts care is needed not to double count each, Section 21A(m) C (SP) Act 1999 factors. Although, the number of occasions remains a relevant consideration.

89. While the MDA matter carries the greater maximum penalty and standard non-parole period it was an opportunistic offence outside of the usual business model of the offenders. It appears an up-line supplier had a large quantity of low quality/purity pills. The cocaine supply matter reflects the more sophisticated part of the offender’s regular business. It also has the Form 1 matters attached to it.

90. The quantity of the drug possessed drug sets the sentencing range but the quantity of the drug possessed is only one of many measures used in assessing objective seriousness. The commercial quantity of cocaine is 250 grams. The large commercial quantity is 1 kilogram. Here 557 grams was supplied.

91. The large commercial quantity of MDA is 500 grams. Here 1.28 kilograms was supplied.

92. The role of each offender remains very relevant to my assessment of the objective seriousness of the offence for sentence and its location in the notional range of seriousness. Here both offenders supplied on a “50/50” basis. Objectively each is as liable as the other and they, through their counsel, accept this.

93. Here each offender:

1. contributed financially to the cost of setting up the operation by going into debt to their up-line supplier or suppliers;

2. stood to share in the profit and expected a handsome profit;

3. conducted their supply business for a period;

had a decision making role - they managed the operation;

were able to source a number of different illicit drugs in quantity;

had credit available to enable them to do so;

maintained considerable control over the enterprise; they used others to collect and distribute the drugs thus minimising their risk of detection while placing those others at risk of apprehension;

were not involved in street dealing but supplied in quantity to a number of others who supplied to users.

used other intermediaries; and

distanced themselves from the day to day supply to users.

94. Each offender was actively involved in a wholesale drug supply operation, which they controlled and managed. They were aware of the risks. They took them, although they sought to reduce them. They were actively seeking and expected considerable profit. The drugs were distributed for greed. Here the offenders conducted a retail distribution operation over the course of many months, supplying quantities of MDMA, MDA and cocaine. That they could have managed their business even more profitably does not distract from the seriousness of their criminality, which as the DPP submit was of a high order.

95. That some of the drugs were seized and thus not distributed is of “limited relevance:” R v Chan [1999] NSWCCA 103 at [21]: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172]. Rather as the Court of Criminal Appeal made clear in Way, what is relevant to any assessment of moral culpability is the offender’s motivation or understanding. That some of the drugs were not distributed was not due to any act of an offender: Way at [172] and [181]

96. However, the criminal law is concerned with the consequences of offending, “if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending;” R v DW [2012] NSWCCA 66, RA Hulme J at [117].

Objective Seriousness - take and drive

97. The car stealing offence was an incident of the offender’s drug supply operation but it was of itself a serious offence. There is a maximum penalty of 14 years and a standard non-parole period of 5 years. Both offenders, with the additional phone presence of Crowther, worked together to assault Rabbitte. Threats were also made; those threats were nasty. Actual violence was used. The car was used for the offenders’ supply operation. It was however recovered on their arrest.

The Forms 1

98. I do not impose a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the cocaine supply offence I take these matters into account as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarianv The Queen (2005) 228 CLR 357 at [51]-[54]; see also Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, per Bathurst CJ at [22].

99. Matters on the Form 1 can operate to increase the sentence that would otherwise be appropriate: Markarianv The Queen. Any increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [39] – [42]. One of the matters on each offender’s Form 1 involved a substantial quantity of MDMA. Although I don’t sentence for it any resulting increase in sentence for the principal offence of supplying cocaine must be substantial: Attorney General’s Application No. 1 at [18]; Grube [2005] NSWCCA 140.

Structure of sentence

100. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63. While there are three matters for sentence, each was related to the general business of the offenders.

101. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. Accordingly, there must be some accumulation. But where there is such a similarity in circumstances, as here, many of the purposes of sentencing apply equally and overlap so the penalty for one offence can comprehend in substantial part the other - allowing for considerable concurrence.

Guidance

102. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties and standard non-parole periods prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of these offender and others from committing similar crimes, and proper recognition of the harm done to the community.

103. While there are not prescriptive careful attention to the maximum penalties and standard non-parole periods applicable is required. The standard non-parole period represents the non-parole period for an offence taking into account only the objective factors affecting the relative seriousness of that offence, that is in the middle of the range of seriousness. A process of comparing and contrasting the actual offence with the abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period; s.54B(6); Tepania v R [20018] NSWCCA 247 [103] to [120]. I am required to give content to the standard non-parole period but I must not engage in a staged approach to sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [28].

Subjective case

104. A powerful subjective case has been made for both offenders. Each case was relatively uncontroversial and well documented. I have the benefit of letters from the offender’s, substantial statements from their mother and aunt. police records relating to the violence of their late father and school and sport records going back to when they were very young. Neither had any prior convictions or interaction with the criminal justice system entitling them to a degree of leniency. They were only 19 years old. They have strong and continuing pro-social family and community support.

105. Both have accepted responsibility for their actions. Only Flinn Westman gave evidence but each have in their comments to others and letters to the court shown insight into their offending and regret for their crimes. Both need and will need for some time psychological support. Both had and have the skills to make a positive contribution to the community on release.

106. Every effort should be made to avoid their losing hope for the future. It is well documented that that harsher prison conditions do not necessarily discourage future offending and that, paradoxically, the experience of imprisonment may exert a criminogenic effect – in other words, a crime-producing effect – by providing a criminal learning environment, by labelling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime. The higher rate of recidivism among younger offenders suggests that imprisonment does not create a specific deterrent effect. Those youths who have pro-social values at the time of incarceration may be placed with others who have anti-social attitudes; after their release, youths may be more likely to associate with others whom they have met in custody, and may therefore be more likely to commit crimes. Being in custody also appears to have a negative effect on their long-term job stability, and hence may contribute to reoffending: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

107. Each offender claims that their own drug use and debts to their dealer were the principle reasons they engaged and continued to engage in their trade. Here both offender’s say they were addicted to the product they sold. Both also say that they have been abstinent since they went into custody. No evidence of a drug addiction as opposed to drug use was called other than assertions by Flinn and by the psychologist and family members, that were unable to be further tested.

108. That a person committed the offences while a drug user or even an addict and in debt to their supplier cannot excuse their crimes. I accept that drug use can cause a distorted view of reality and cause otherwise pro-social people to think what they are doing did not cause harm. Here however, the OSD transcripts indicated that both offenders were well aware of what they were doing. They were not unduly drug affected when they did what they did. While they were not well organised and seemed to have very rudimentary grasp of the debts they were owed and what was owed up the line- they knew enough to know that they were setting themselves up for considerable future profit.

109. The fact of their drug use and its consequences, how it came about and what is to be done about it may however be taken into account as a factor relevant to the sentencing. It allows me to understand why a previously law abiding person did what he did and continued to do it, to understand his state of mind and any lack of capacity to exercise sound judgment at the time. It is relevant here and provides assistance to either offender’s subjective case as the origin or extent of the drug use, and any attempts to overcome it, impact upon each offender’s prospects of recidivism or rehabilitation: Henry v R (1999) 46 NSWLR 346.

110. There is however evidence from Ms Santa Brigida, psychologist of considerable childhood trauma’s brought about by the persistent violent conduct of their late father. There is also another abuse matter raised by Flinn, currently the subject of compensation proceedings. Ms Santa Brigida’s report notes studies that show a strong link between trauma and substance abuse. And, that physically abused children can have significant problems with anger making them more likely to commit and be imprisoned for violent crimes. These conclusions were supported by the opinions of Ms Black who provided a report for Joel Westman.

Immaturity

111. I accept that both offenders were young and immature. And both have demonstrably grown in maturity while in custody. The principles in relation to sentencing young or immature offenders are well known: KT v R (2008) 182 A Crim R 571 at [22] ff. Allowance can be made for an offender’s youth, and not just his or her biological age. I recognise that young people can reform and learn to conform to society’s norms. It is also accepted that cognitive, emotional and/or psychological immaturity of a young person can contribute to their offending:

“…the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s:” Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.

112. Accordingly, here as often occurs when sentencing youthful offenders, even for adult type offences like these, considerations of general deterrence and principles of retribution can be of less significance than they would be when sentencing a mature adult for the same offence.

Impact of deprived background

113. There is a considerable body of evidence supported by expert opinion from two psychologists that both offenders suffered, and still suffer from, trauma inflicted on their family by their now deceased father. Their mother was subject to sustained and brutal violence at his hands; both physically and psychologically. The family was placed in danger many times. While the father lived an aura of threat pervaded the home. That threat was real. They had to move many times. Flinn Westman was also subject to additional abuse detailed in the evidence.

114. A background like that experienced by each offender can leave a mark and compromise their capacity to mature and learn from experience. It mitigates the sentence because their moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571

115. Trauma, particularly childhood trauma, may impact on the purposes of sentencing in different ways. Here it helps explain why each took up the use of drugs, offended as they did and in part their recourse to violence. It helps explain what they turned their back on the pro-social examples offered by their mother and other family and friends. Their return to their family while in custody and their prospects for productive work on release mean there is no longer any need to protect the community from them. The lessons meant to be taught by custody appear to have been learned.

116. Each offender as young man showed considerable promise. Both appear to have skills. Joel was a promising junior rugby league player. Flinn was a good league footballer too and vice-captain of his school. Both struggled in their last years at school. Joel left early but Flinn was able to get his HSC and gain university entry.

117. Their mother and aunt herself a psychologist put forward reasons why both resorted to drug use and the easy option of selling drugs rather than working to earn a living. Their respective psychologists identify disorders that mean both were more susceptible to the use and abuse of illicit drugs.

118. Both require significant psychological intervention both in custody and on release.

119. Both have a number of what are called protective factors which if they take advantage of the support offered mean that they are unlikely to reoffend and would benefit from an extended period of monitoring and support while on parole,

Parity & proportionality

120. I have sentenced or resentenced after an appeal from the Local Court a number of those involved with the Westmans. This sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability - “like must be compared with like.” However, different personal and criminal histories may “justify a real difference in the time each will serve in prison:” Postiglione v The Queen (1997) 189 CLR 295. This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246.

R v Lane

121. Lane was sentenced at Wollongong District Court on 14 August 2020 to an aggregate term of 3 years and 9 months with a NPP of 2 years. Sentences for each offence were indicated as follows:

1. Supply commercial quantity of prohibited drug (293.78g MDMA) 3 years, 4 months with a NPP of 1 year, 10 months;

2. Supply commercial quantity of prohibited drug (391.2g cocaine) 2 years, 7 months with a NPP of 1 year, 5 months

122. A number of further offences (participating in a criminal group, dealing with proceeds of crime, deemed supply of drugs located during a search, and knowingly taking part in supply) were placed on Forms 1.

R v Campbell (Colby)

123. Aggregate term of 5 years, 7 months imprisonment, with a NPP of 3 years, 1 month.

124. There was an early plea to one charge of supplying a large commercial quantity of a prohibited drug (1.218kg MDA). Two offences of knowingly taking part in the supply of a prohibited drug (MDMA and cocaine), related to the supply to the UCO on 17 July 2019, were taken into account on a Form 1, together with an offence of participating in a criminal group.

R v Ognenovski

125. Ogneneovski entered pleas of guilty at Wollongong Local Court. He was sentenced to an aggregate term of 7 years, 3 months imprisonment with a non-parole period of 4 years, 3 months. Sentences on each offence were indicated as follows:

1. 1 x supply a commercial quantity of a prohibited drug (637.96g) 6 years, NPP 3y 7m.

2. 1 x supply commercial quantity of a prohibited drug (MDMA – no quantity particularised) to 3 years, NPP 2y.

126. There are no equivalent or corresponding charges between the offenders and Ognenovski However his participation in a criminal group with the offenders was placed on a Form 1.

127. Each was sentenced according to the agreed facts put before me in their particular matter. As is more often than not the case those agreed facts were not identical to or necessarily consistent with those now before me. Different charges were laid. Different matters were dealt with on Form’s 1. Some were dealt with in the Local Court. In those other matters the prosecution accepted submissions in relation to role of these offenders that are not now conceded by them.

128. I have received information about the co-offenders so that I can as far as is practical impose proportionate sentences. No offender involved in a criminal enterprise should be left with an unjustifiable sense of grievance that they were treated less fairly the others.

COVID-19

129. Each offender has been in custody through the CV-19 emergency. It is now notorious and the subject of regular reports from Corrective Services that as a consequences of the successful efforts taken to keep CV-19 out of our gaols Prisoners lost contact visits had reduced access to programmes and work and were locked in cells more often than was already too long. Each offender has endured over a year of such restrictions. They may face them again. CV-19 has not entered our gaols. But if it does early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offenders fall into a category that might be considered for early parole. Those additional hardships must be taken into account.

Redacted – [130] – [134] are subject to a Suppression order

130. Redacted.

131. Redacted.

132. Redacted.

133. Redacted.

134. Redacted.

Submissions

135. The Director of Public Prosecutions has provided detailed written submission to which Mr Taylor spoke. The Director accepts a strong subjective case has been made for both offenders. Neither have criminal records a matter that given their age and other evidence requires some leniency. But by their own admissions they are not first offenders; this is just the first time they have been caught.

136. The opinions of the psychologists and the personal histories of the offenders are sad and tragic but not controversial. It is acknowledged that do operate to mitigate the sentences and that they may form a basis for a finding of special circumstances. The Director’s critical point however is that taking into account all those factors so objectively grave where the crimes committed and so culpable were the offenders that those factors must give way to other purposes of sentencing- general deterrence, denunciation retribution and just punishment for offences that harmed our community: R v AEM [2002] NSWCCA 58 at [97] - [102].

137. On the question of parity the Director submits that although the offences are different, Ognenovski would be the most comparable to the role of the offenders; however, his culpability would differ in that Ognenovski himself would source drugs from the offenders on occasion, and did supply directly to customers, unlike the offenders.

138. It is submitted that the offenders played a more culpable role in the MDA supply than Colby Campbell. Campbell collected the drugs and delivered them to the offenders, but it was the offenders who arranged distribution of the 4,200 pills with a stated intention to profit from the on-supply of those drugs.

139. Mr Taylor submits that the role of the Westmans “clearly exhibits criminality of a higher order than Lane. Lane was subordinate to the offenders. He was being used by them to take the risks associated with the supplies, following which the offenders took the cash from the sales.” Lane was also a young offender with no criminal history.

140. For the offenders Mr Djemal, of counsel, drew on the comprehensive evidence compiled by Ms Black, solicitor, about the background of each offender. That background, he submitted, helped explain their use of illicit drugs and how they came to lose their moral compass. He reminds me they did so when still young and both offenders are still young and immature. And both have grown in custody. He submits there is ample and uncontradicted evidence that their drug use and inability to pay debts to drug suppliers led to them taking up drug supply to meet both those needs. He submitted that the offending in each matter for sentence and overall was well below the middle of the range.

135. He also stresses their reduced moral culpability. He submits their motive to offend was their own drug addiction. That problem has now resolved, although each will require continuing assistance and support in dealing with the underlying issues and trauma that was one cause of their taking up the use and abuse of illicit drugs.

Synthesis

142. Mitigating circumstances can go only so far. A court must always return to what was done and the objective seriousness of the crimes committed

143. The offenders were young and immature but there crimes were serious. One attracts a maximum penalty of life imprisonment. Careful attention to the maximum penalties and standard non-parole periods is required. Not just because the Parliament has legislated for them. Here both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said it is not appropriate here to look first to a maximum penalty or standard non-parole period and then proceed by way of making a proportional deduction from it; Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].

144. As with many sentencing principles those relating to young immature offenders do not all point the same way. Two themes have emerged; while both recognise the strong community interest in rehabilitation of an immature young man the other stresses the protective function of the court, embodied in the concept of general deterrence, particularly where violent or planned objectively serious offences are committed is involved: JM v R [2012] NSWCCA 83.

145. Allowance will be made for their youth and immaturity. Similarly proper recognition must be given to a background that left them damaged and reduced their moral culpability. However, each actively and for person gain participated in a number of organised drug supplies and associated crimes.

146. Each offender has four matters for sentence today- others will be taken into account. Whatever the merits of general deterrence as a principle of sentencing, the high maximums and sentences imposed by courts on other drug dealers, seems to have little impact here> That said, denunciation and retribution are required to properly punish offences that cause great harm to our community. There is a community expectation that drug dealing on the scale revealed here will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205.

147. The sentences can be moderated by a significant finding of special circumstance. The evidence presented to me shows there are significant and positive signs that if each offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility: R v Carter [2003] NSWCCA 243 at [20]; R v Lulham [2016] NSWCCA 287 at [7]. They have strong pro-social support in the community

148. There is evidence each offender need continuing psychological treatment. They will need help on release adjusting to normal community life. The subjective evidence is powerful and positive. In each case it provides a basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

149. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011 BOCSAR;

150. Although there are some differences in the cases for each offender and one extra Form 1 matter for Joel, the twin brothers went into this enterprise on a 50-50 basis and there is no reason in law or fairness for different starting sentences or non-parole periods to be imposed on them other than for the matter set out at redacted [130] to redacted [134].

Proceeds of Crime - Confiscation of Proceeds of Crime Act 1989

151. It is recognised that the task of a court in carrying out the assessment required by the Act may prove difficult.  I am required to make an assessment “having regard to information before the court." Some guidance was given by Johnston J in DPP v Colakoglu [2015] NSWCCA 301 at [87] – [95]; see also R v Hall [2013] NSWCCA 47.

152. A court should:

1. Determine that the particular offender had derived a benefit in connection with drug trafficking;

2. Assessed the value of the benefit derived by the particular offender; and

3. Order the particular offender to pay to the State a pecuniary penalty equal to the amount as assessed.

153. The assessment is to be made having regard to the information before the Court including matters identified in s 30(1) Confiscation of Proceeds of Crime Act 1989:

• that the money came into the respondent's possession in connection with drug trafficking: s 30(1)(a);

• the value of any benefit provided for the respondent: s 30(1)(c);

• the market value of the drugs (disregarding any expenses as outgoings incurred by the respondent in connection with the commission of the offences: ss 30(1)(d) & 30(6).

154. The task to which s 30(6) Confiscation of Proceeds of Crime Act 1989 is directed is “assessing the value of the proceeds of drug trafficking”. Assistance is obtained from the long title of the 1989 Confiscation Act which referred to the confiscation of the “profits of crime”.

155. The concepts of “benefit” and “proceeds” are distinct, and separately defined in s.4:

• benefit includes service and advantage.

• drug proceeds order means an order made under section 29.

• proceeds, in relation to a serious offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.

156. The term “expenses or outgoings” is directed to a range of factors associated with a particular drug supply operation, such as payments made to persons to deliver drugs and payments associated with the delivery of the drugs. An order should not see the offenders being deprived, by way of a drug proceeds order, of far more than “the fruits of their crimes.”

Determination – proceeds of crime

157. Here, in essence the DPP want the $57,150 paid to the UCO back. In addition as the cash found on arrest could only be the proceeds of crime, given the offenders had no other source of cash other than drug supply, and is not the cash given over by the UCO they submit the offender’s should forfeit that amount.

158. Mr Djemal’s provided some helpful calculation’s based on the evidence of Flinn Westman and Detective Piggot: set out in MFI 4. The DPP motion seeks $57,150 or such other amount as assessed by the Court. If I restricted the DPP’s Proceeds claim to $57,150 I would however then have to reduce that amount by the amount forfeited: s 29(2) Confiscation of Proceeds of Crime Act 1989.

159. The matter was discussed with the parties. The Director does not want to burden the offender’s with a large civil debt on release that could impede their rehabilitation. At the same time the offenders should not be excused some of the benefits they derived from their operation notwithstanding their customers failed to pay them for drugs advanced on ‘tic’ or credit and notwithstanding most of their proceeds w to the up-line supplier to repay debts.

160. The evidence derived from the calculations of Detective Piggot (12/04/2021) and the testimony of Flinn Westman indicate the benefits received by the Westman’s from the sale of the Cocaine and MDMA to the UCO and other customers. Lane was owed his cut for arranging the UCO deal but it was used to repay a portion of his outstanding drug debts to Westmans. Lane did not see any of this money. The Westman’s benefited from this portion of the UCO’s money. Not all of this money was profit to the Westmans as they had to pay for the drugs.

161. Repayment of a debt is still a benefit. Any amounts used to forgive any debt, which in any event derived from dug supply, should not be deducted. Using Mr Djemal’s figures that means the total benefit the Westman’s derived from the $57,150 handed over by the UCO would have to be reduced by the amount they paid on to their up-line supplier but not by the amount credited to pay off Lane’s debt to them.

162. The UCO bought 168 grams (6 ounces) of cocaine for $45,000. The Westmans paid their up-line supplier about $6,200 per ounce; that is $37,200 for the 6 ounces, leaving a net profit of $7,800.

163. The UCO bought 237 grams (8 ounces) of MDMA for $12,150. The Westmans paid their up-line supplier about $550 per ounce that is about $4,400; leaving a net profit of $7,500.

164. The total profit derived for the dealings with the UCO was thus $15,600 or $7,800 per offender. That sum should be repaid as a civil debt.

165. As the evidence and Mr Djemal’s calculation in MFI 4 indicate when one takes into account the total amount of drug supplied and related to the matters for sentence a figure greater that the amount seized and to be forfeit ($24,860) and this sum ($15,600) could be derived. However, as no more is sought by the Director it thus it is not necessary that the sum recovered and forfeit be deducted from the amount set out in the confiscation order.

Orders

Joel Westman

166. You are convicted.

167. Aggregate sentence: Each sentence indicated reduced by 25%, except the direct criminal group offence where there can be no utilitarian discount in the indicated sentence. There will been some rounding. Absolute arithmetical precision is not required in the assessment of sentence terms: Kristensen v R [2018] NSWCCA 189 at [42].

1. For the supply commercial cocaine, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 6 years 9 months with a non-parole period of 4 years

2. For the supply large commercial MDA, as it carries a standard non parole period I indicate a sentence of 6 years with a non-parole period of 3 years 7 month.

3. For the take and drive, as it carries a standard non parole period I indicate a sentence of 1 year 6 months with a non-parole period of 11 months

4. For the direct criminal group I indicate a sentence of 1 year 6 months

168. The aggregate sentence is 8 years 6 months. There will be a non-parole period of 4 years 8 months commencing 16 August 2019 and expiring 15 April 2024. The balance of the sentence of 3 years 10 months is to commence upon the expiration of the non-parole period on 16 April 2024 and expiring on 15-Feb-2028. You will be eligible for consideration for release to parole at the expiration of the non-parole period on April 2024.

169. I make a Drug Proceeds Order in the sum of $7,800, or such other amount so assessed by the Court, pursuant to s29(1) of the Confiscation of Proceeds of Crime Act 1989.

170. I make an order pursuant to s18 of the Confiscation of Proceeds of Crime Act 1989, that the sum of $11,980 be forfeited to the State;

Flinn Westman

171. You are convicted.

172. Aggregate sentence: Each sentence indicated reduced by 25%, except the direct criminal group offence where there can be no utilitarian discount in the indicated sentence.

1. For the Supply commercial cocaine, taking into the matters on the Form 1, as it carries a standard non-parole period I indicate a sentence of 6 years 9 months with a non-parole period of 4 years.

2. For the Supply large commercial MDA, as it carries a standard non-parole period I indicate a sentence of 6 years with a non-parole period of 3 years 7 months

3. For the Take and drive, as it carries a standard non-parole period I indicate a sentence of 1 year 6 months with a non-parole period of 11 months.

4. For the direct criminal group I indicate a sentence of 1 year 6 months.

173. The aggregate sentence is 7 years 8 months. There will be a non-parole period of 4 years 2 months commencing 16 August 2019 and expiring 15 October 2023. The balance of the sentence of 3 years 6 months is to commence upon the expiration of the non-parole period on 16 October 2023 and expiring on 15 April 2027. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 15 October 2023.

174. I make a Drug Proceeds Order in the sum of $7,800, or such other amount so assessed by the Court, pursuant to s29(1) of the Confiscation of Proceeds of Crime Act 1989.

175. I make an order pursuant to s18 of the Confiscation of Proceeds of Crime Act 1989, that the sum of $12,880 be forfeited to the State;

176. In each matter I make a drug destruction order.

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Decision last updated: 08 June 2021