R v Walker

[2019] NSWDC 554

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Walker [2019] NSWDC 554
Hearing dates:	2 August 2019
Decision date:	02 August 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of three years with a non parole period of two years.
Catchwords:	SENTENCING - Relevant factors on sentence - Multiple offences – drug supply - supply for profit and own use – long term drug user – need to engage in treatment – ICO considered – further custody required – special circumstances found.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 Robertson v R [2017} NSWCCA 205
Category:	Sentence
Parties:	Benjamin John Walker (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr M Powell (for the offender)   Solicitors: Morrisons Law (for the offender) Ms A Cabrera (for Director of Public Prosecutions)
File Number(s):	2018/00143794

Judgment – ex Tempore revised

1. Benjamin Walker faces sentence today for two serious offences. Both involve the supply of the prohibited drug methylamphetamine: s 25(1) Drug (Misuse and Trafficking) Act 1985. He has been in custody since his formal arrest on 8 May 2018; although he was in prison, on this occasion, from 29 April 2018, in relation to matters which have yet to be disposed of in the Local Court.

2. This is not Walker’s first time in gaol. His record reveals a matter in the Children's Court, which I will ignore as evidence about it is inadmissible: s 15 Children (Criminal Proceedings) Act 1987. There have been Local Court matters since 1988. He has been gaoled a number of times. He is not entitled to the leniency often given to first offenders, but he is not to be punished again for his criminal history.

3. Walker has in the past attempted drug rehabilitation programs, with moderate success but ultimate failure. It is clear from his custodial record that even in this most recent time in custody, there have been disciplinary matters for drug‑related activity. He clearly has, since he was relatively young, battled with problems of addiction.

4. The matters for sentence must be forefront in my mind. In March 2017, Walker sourced 186 grams of methylamphetamine from a supplier in Sydney. He was seen to, and did, package the drugs. He then arranged for two others to deliver the drugs to Wagga Wagga, while he flew down to that city. His companions were not very professional. They consumed some of their product and drew themselves to the attention of the police and were arrested. The offender's messages to them, which were recovered, indicate his frustration with them.

5. Six months later, Waker was again detected involving himself in drug supply activity. Telephone intercepts were recovered which indicated that he was directing others who would contact him so that he could arrange for the supply of methylamphetamine in small quantities, ranging from 0.5 of a gram for $150 to 3.5 grams - "on tick". The enterprise was brought to an end by his arrest for the Local Court matters. He was subsequently charged with the two offences now before me.

6. These offences both carry maximum penalties of 15 years imprisonment. That maximum is one guide to the exercise of my sentencing discretion.

7. Courts can, in appropriate cases, extend leniency to offenders. Courts can, and should, structure the sentences imposed to ensure that the many purposes of sentencing are met. They include the principles of general and specific deterrence, but also ensure the return of the offender to normal community life.

8. Mr Powell, on behalf of the offender, submits that Walker having served one year and three months, those purposes of sentencing that relate to deterrence, both general and specific, have been met. Mr Powell suggests that the community would best be served by this offender proving himself in the community and contributing to the community by his serving effectively the balance of his sentence subject to an Intensive Corrections Order (ICO). The Court is not precluded from imposing an order in such circumstances if the balance of the sentence to be served would be in this case less than three years. I have given that submission close consideration.

9. Cases such as EF v R [2015] NSWCCA 36 and Robertson v R [2017] NSWCCA 205 indicate that an ICO is an option that cannot be closed off by a sentencing judge. But both of those cases also indicate that general sentencing principles apply and when people engage themselves in the supply of illicit drugs in the community the general principle is that if you choose to engage in the supply of drugs for profit to any extent, you can expect a cell door to close behind you, and close behind you for a significant period.

10. Here, the offender on two occasions conducted a retail operation supplying methylamphetamine. The second offence, chronologically, involves small quantities, but Walker was directing others and he was engaged in clandestine activity. The other matter involved him directing others and a significant quantity of the drug, which was clearly intended to be distributed into the Wagga Wagga area. He expected and received a reward.

11. Walker says to his psychologist, Ms North that the drugs were being distributed just to meet his own needs and he was not obtaining any financial advantage: exhibit 3. However, it would appear from all the material before me that some profits from these activities were used for his other general needs. He also chose to support his own need for drugs by spreading the drugs to others in the community. Notwithstanding his own usage, the offender appears to have remained sufficiently clear‑thinking enough to be able to carry on his trade in a rational, clandestine, and efficient manner.

12. The seriousness of retail distributions such as this lie, in part, in their contribution to servicing and maintaining a market for methylamphetamine in the community. It needs to be made perfectly clear that those who engage in the sale of drugs for profit, if caught, will almost inevitably end up in gaol.

13. With great respect to the submissions made, only a substantial full‑time custodial sentence can properly reflect the objective seriousness of Walker’s two crimes. The sentences must, by their severity, attempt to deter both this offender and others. Those who attempt to supply drugs must ask themselves a simple question: “Is it worth it?” The answer to the question is equally simple: “No”, because if you supply drugs and get caught, you will end up in gaol.

14. There are matters I can take into account which will mitigate the sentences. I cannot and do not accept statements to Ms North, that were not supported by evidence on oath, about Walker’s offending and his motivation for offending. But that said, most of the material before me; the statements of his friend Ms McEwan, exhibit 1 and his father Gary Walker, exhibit 2 and the history given to and by Ms North, are uncontroversial. They set out the offender's background and family matters; his work and study history. They are, with the possible exception of expressions of remorse and his comments in regard to his former spouse, matters I can accept.

15. It is also clear from the Sentence Assessment Report, prepared by Ms Rudic, exhibit B, that when Walker is eventually released into the community, his first objective must be to deal with his drug problem. He has other noble aims. They include engaging with TAFE and finding full‑time employment in the area that he loves. But, unless he comes to grips with his drug problem; unless he engages with programs such as EQUIPS Foundation; unless he engages in serious intervention with the support of probation and parole, he will not be able to complete TAFE, he will not be able to find the employment, which he so clearly requires, and he will not be able to be a proper father to his children. These are important goals which I do not wish to discourage him from seeking.

16. Ms North indicates that there are a number of protective factors; the support of his friends and family; that he has accommodation available to him, and that he appears to be motivated to engage in treatment and address his various problems. But there are also risk factors including; his history of offending, unstable employment, financial instability, substance abuse, antisocial acquaintances, and mental health problems. Mental health problems, which are revealed by her testing, may mean that life will be difficult for him when he is released to parole. They mean that he will have to focus on them and take the supervision that is offered before he can resume his place in the community.

17. Ms North notes his history of anxiety and depression. She notes a history of a past head injury, which will require neuropsychological investigation. Most importantly, she notes the battle that Walker has had most of his adult life with drugs and past failures. He needs to be put on a path to help deal with those problems. While it is true that an ICO might assist with that, the risk in this case cannot be taken. What has to happen is he has to serve an appropriate portion of his penalty in custody, and then with the advantage of my finding of special circumstance, get his life in order on release.

18. There are two matters for sentence before the Court. I will indicate sentences for each. I will backdate the sentence to when he first came into custody, although strictly, I should not. In doing so I will, so far as I am possible, grant him leniency, which perhaps he does not deserve, but I do so to encourage his motivation to change for the better and to recognise the strong prosocial report, which is reflected in the statement of his friend Ms McEwan and his father Gary Walker.

19. It is to your credit, Mr Walker that Ms McEwan sees a side of you that perhaps others do not. That support gives me some comfort that you may break what is unfortunately a pattern of offending behaviour. You had, as you said, a happy and stable childhood. I hope after you deal with your own problems you are able to provide that for your children. .

Orders

20. I have reduced the otherwise appropriate sentences by 25% to reflect your plea of guilty and I have taken into account matters on the Form 1 in the manner prescribed by the Court of Criminal Appeal in the guideline judgment.

21. In relation to Count 1, the charge of supplying prohibited drug 186 grams, and taking into account the matters on the Form 1, I indicate a sentence of two years and six months.

22. In relation to Count 2, the supply of methylamphetamine 12.7 grams, I indicate a sentence of two years.

23. There will be an aggregate sentence in this matter of three years imprisonment. There will be a non‑parole period of two years which will date from 29 April 2018, which means you will be eligible for release and you will be released to parole on 28 April next year, 2020. It will be a parole period of one year, reflecting a finding of special circumstances.

24. I make a drug destruction order and I have already made a forfeiture order.

25. The backup offences, Sequences 3 – 5, 7-10, are withdrawn and dismissed pursuant.

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Amendments

23 July 2020 - Catchword amended from "ICO not considered" to "ICO considered" -

Decision last updated: 23 July 2020