R v Walters
[2017] ACTSC 123
•19 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walters |
Citation: | [2017] ACTSC 123 |
Hearing Date: | 19 May 2017 |
DecisionDate: | 19 May 2017 |
Before: | Rangiah J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspiracy to traffic in a controlled drug |
Legislation Cited: | Crimes (Sentence Administration) Act2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 7, s 33 |
Cases Cited: | Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 R v Gao [2007] NSWCCA 343 Wongv The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Luke Anthony Walters (Defendant) |
Representation: | Counsel Mr K Lee (Crown) Mr J Lawton (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Defendant) | |
File Number: | SCC 62 of 2016 |
Rangiah J:
On 6 April 2017, following a trial by judge alone, I found Luke Anthony Walters guilty of the offence that between 1 April 2015 and 30 May 2015 at Canberra in the Australian Capital Territory he conspired with Izzak Jacob Silvester-Day to commit an offence; namely, traffic in a controlled drug other than cannabis, namely alpha-pyrrolidinovalerophenone (“a-PVP”).
I am now required to sentence the offender. In doing so, I must have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and such of the considerations described in s 33 of that Act as are relevant to the case.
The maximum penalty is 1000 penalty units or imprisonment for 10 years or both: see ss 48 and 603 of the Criminal Code 2002 (ACT).
The facts and circumstances of the offence are set out in detail in my reasons for judgment in R v Walters [2017] ACTSC 77. In those reasons, I accepted the evidence of Silvester-Day as to the involvement of the offender in planning and paying for the procurement of the a-PVP.
Briefly stated the facts are as follows. A Chinese website called Crystal Rows advertised a-PVP for sale. In about April 2015, the offender asked Silvester-Day to order the drug for the offender, the offender saying he did not know how to use a laptop very well or how to make orders online. Silvester-Day agreed and the offender gave him $272 to place the order. At that stage the offender said that the drug was for his personal use. The offender gave Silvester-Day an address that was not the offender’s address for the delivery of the drug.
There were problems with the order, but the offender “just decided to up the order and try again.” The offender gave Silvester-Day about $3,000 and Silvester-Day placed another order for a greater quantity of a-PVP. Silvester-Day used his own address on this occasion.
The a-PVP was sent by mail to Silvester-Day’s address but was detected by customs officials. The Australian Federal Police (“AFP”) substituted another substance for the a-PVP and delivered it on 30 May 2015. The AFP then raided Silvester-Day’s apartment and found the offender there with Silvester-Day.
On a day shortly before 30 May 2015, the offender had told Silvester-Day that he was going to turn the a-PVP into “flakka” and that he intended to sell it. Shortly before the police arrived, the offender talked about cooking up the drug with other drugs and said that he had people lined up for the product.
The quantity of a-PVP sent by mail was 997.3 grams. It had a purity of 78 per cent a‑PVP.
The offender is nearly 39 years old, having been born on 22 May 1978. A pre-sentence report indicates that the offender completed grade 12 at school with special assistance. He worked in the construction and security industries, but was involved in two major motor vehicle accidents. He sustained head and back injuries and developed consequent psychiatric problems. He now receives a disability support pension. He does not appear to have any drug or alcohol addictions. The pre-sentence report assesses the offender as having a “medium-low risk of general reoffending”.
There is a report from Ms Coral Warren, a clinical psychologist, dated 12 May 2017 in evidence. Ms Warren has seen the offender for 24 therapy sessions since 2010. He was referred by a medical practitioner who had made a diagnosis of depression and epilepsy.
Ms Warren notes that the offender’s back injury has left him with chronic pain. Ms Warren states that the offender has had a long history of mental health symptoms and violence due to an inability to control his anger. He has completed a significant number of programs in order to change his behaviour and has put in place cognitive and behavioural strategies to assist to manage his conditions. Ms Warren’s diagnosis is major depressive disorder with anxious distress and situational panic.
Ms Warren expresses concern that if the offender is sent to prison, he would not be able to control his anger and would resort to violence if he felt intimidated or threatened. She also expresses the opinion that his mental health conditions are likely to deteriorate if incarcerated.
The Crown called evidence from Ms Ahu Kocak of ACT Corrective Services and Ms Dannielle Nagle of Justice Health Services. Their evidence is that psychological and psychiatric services are available to prisoners who have been sentenced to imprisonment. Their evidence is also that it is common for prisoners to have mental health problems, particularly depression and anxiety.
The offender has a significant criminal history. In 2002, he was sentenced to four years imprisonment for armed robbery and one-and-a-half years for assault occasioning bodily harm. In 2002, he was also sentenced to 12 months imprisonment for unlawfully confining a person and assault occasioning bodily harm. Since then his criminal history has been relatively minor with two driving offences and, in 2011, a conviction for unlawful possession of stolen property. The offender seems to have made a conscious and real effort to avoid criminal conduct. That is demonstrated by the very limited nature of his criminal history since 2002, and is to his credit.
In Wongv The Queen [2001] HCA 64; 207 CLR 584, the majority of the High Court said at [64]:
In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence.
The views expressed in Wong are, in my opinion, applicable in this case. In particular, general deterrence is important. The present offence is a serious one. The offender arranged for nearly one kilogram of a-PVP to be imported for the purpose of preparation for sale and then sale of the drug. He was motivated by greed. The conspiracy was between the offender and Silvester-Day. The offender was the instigator and architect of the conspiracy and he provided the money to purchase the a‑PVP. The offender was to take the drug after it was imported and was to receive the proceeds of its sale. The potential for harm to the community was high. The fact that the a-PVP did not eventually find its way into the community only diminishes the offender’s culpability to a minor extent: R v Gao [2007] NSWCCA 343 at [21].
I take into account the offender’s criminal history, which, on one hand, contains serious offences, but on the other hand, has been quite limited since 2002. I take into account the pre-sentence report and, in particular, the assessment that the applicant has a “medium-low risk of general reoffending”. I understand this to mean that there are good prospects that he will not reoffend.
I accept that the offender’s psychiatric conditions would make his experience of full time imprisonment more onerous than for others without such conditions. However, I also accept that psychological and psychiatric treatment is available to prisoners in the ACT prison system.
Silvester-Day was sentenced to 12 months imprisonment to be served by way of an intensive correction order, as well as community service and probation. The sentencing Magistrate reduced the sentence of imprisonment by three months to take into account the plea of guilty. His Honour also took into account that Silvester-Day was prepared to give evidence against his co-offender.
Silvester-Day was sentenced on the basis that he was led into the offence by his co-offender and that he was motivated by doing a favour for a mate rather than financial gain. That basis of sentencing is consistent with the evidence in the trial before me.
The prosecutor handed up a schedule of cases involving sentences for drug related offences. Of those cases, I have only gained any real assistance from R v Malec [2016] ACTSC 329. There the offender pleaded guilty to one count of conspiracy to traffic in methylamphetamine. The offender was a user of drugs and he was not at the highest level of the conspiracy, but he was heavily involved in the conspiracy and actually sold the drug. It was an aggravating feature of the offence that the conspiracy was to traffic methylamphetamine in a prison. The present offence demonstrates a lower level of organisation and is somewhat less serious than the offence in Malec.
The offender concedes that the only appropriate penalty is a sentence of imprisonment, given the nature of the offence. However, the offender submits that the sentence of imprisonment should be suspended, or served by way of an intensive correction order.
I propose to approach the question of how the sentence of imprisonment should be served by the three-stage process described in Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 at [72] and, more recently, in R v Ngerengere (No 3) [2016] ACTSC 299 at [23].
I am satisfied that no penalty other than imprisonment is appropriate. I consider that a term of imprisonment of two-and-a-half years is appropriate, taking into account the nature of the offending and the offender’s criminal history and personal circumstances, including his psychological condition and prospects of rehabilitation. I consider that the offender’s sentence must be significantly higher than that of Silvester-Day, taking into account the offender’s greater role, that Silvester-Day is much younger with a much more limited criminal history and, in particular, the fact that Silvester-Day was prepared to give evidence against the offender.
It is not appropriate to suspend the sentence, or to impose an intensive correction order, given the seriousness of the offence and the need for deterrence. I consider that nothing less than actual imprisonment is adequate.
It is appropriate to set the nonparole period at 50 per cent of the head sentence as I consider that the offender has good prospects of rehabilitation.
I sentence the offender to two-and-a-half years imprisonment. The nonparole period will be 15 months, starting today and ending on 19 August 2018.
I direct that the offender’s counsel explain to the offender his obligations as a full time detainee under the Crimes (Sentence Administration) Act 2005 (ACT) and the consequences if the offender breaches those obligations.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Rangiah Associate: Date: 19 May 2017 |
6
2