R v Waters, Codie

[2008] NSWDC 287

CITATION:	R v Waters, Codie; Waters, Grant and Waters, Shannon [2008] NSWDC 287
HEARING DATE(S):	18/07/08
JUDGMENT DATE:	25 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Codie Waters: 4years 9months 15 days Non parole period of 2 years 9 months and 15 days Shannon Waters: Sentenced 3years Non parole period 2 years. Grant Waters: Sentenced 2years and 9months; Non parole period 2 years. Ordered drugs to be destroyed.
CATCHWORDS:	Criminal law - sentencing - co-offenders - supply prohibited drug - commercial quantity - standard non parol period offence - 252 gms - CW principal offender - GW and SW participate in supply, delivery and collection at direction of CW - offence in context of prior on-going offending - drugs sourced from Canberra based supplier - supply continues in face of reasonable known risk of police surveillence - Form 1 matters, receiving, cultivate cannabis - 10 plants - receiving stolen property - quantity close to lower threshold of commercial quantity - plea of guilty - standard non parol period not appropriate.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1989 Drug Misuse and Trafficking Act
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Smiroldo [2000] NSWCCA 120 R v Kalache [2007] NSWCCA 2 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina Codie Anthony Waters Grant Anthony Waters Shannon Lawrence Waters
FILE NUMBER(S):	2007/11/0627
COUNSEL:	Defence: B. Levet
SOLICITORS:	Crown: Mr H Baker

JUDGMENT

1. These are the sentence proceedings of Codie Waters, Shannon Waters and Grant Waters. During a period between 7 February and 28 July 2006, Codie Waters was subject to close monitoring by police investigating unlawful supply of amphetamine and cannabis in and around the south coast. A special strike force named Ravensworth was established for this purpose. Codie Waters’ mobile phone was monitored from 7 February 2006. On five occasions over this six and a half month period, Codie received a total of nine ounces of amphetamine, approximately 252 grams, with an agreement to be supplied another four ounces (112 grams) which was in the possession of his supplier towards the end of this period when the supplier was arrested. As to the other 252 grams, he either supplied or, with his father and brother, used some of the amphetamines.

2. Grant Waters, Codie’s father, and Shannon Waters, a younger brother, lived with Codie. All three were amphetamine abusers. They had been knowingly concerned with the supply of some 252 grams of amphetamine that had made it to their home from the Canberra supplier. Today, each is to be held accountable for his role in the distribution of amphetamines into the South Coast community situated at or around Moruya. Each offender has asked that when sentencing for the relevant charge he faces in the indictment, I take into account further admitted criminality pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1989. I shall deal with that criminality as I review each of the offender’s cases.

3. As sentencing judge, it falls to me then to resolve a number of competing tensions as I strive to determine an appropriate sentence for these offences before this Court committed by these offenders, harming in the way in which it did the community in which they lived. My initial task requires an assessment of what is called the objective criminality of the offences before the Court. I will also need to have regard to matters personal to each of the offenders.

4. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the Court relating to both the offence and to the offenders. My fact-finding task has been circumscribed in this case in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not a party to the agreed set of facts. Tender of agreed facts does not relieve the judge from his or her fact-finding responsibility. It simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

5. Each offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, the impact of the Form 1 matters, whether any of these offences attracts a standard non-parole period and the length of the relevant parole period to be imposed in respect of each offender and finally of course the ultimate length of the term of imprisonment or other penalty to be imposed. None of that can be done until the primary facts have been determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community, also needs to be determined. See R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

6. The brothers lived in premises on Araluen Road, Moruya. Neither electricity nor sewerage was supplied to these premises. The supplier of amphetamine was identified as MJW. He lived at an address in the ACT. Police discovered that Codie Waters would meet MJW in Canberra to buy amphetamine from him. Intercepted mobile telephone conversations and text messages revealed the amounts of amphetamine purchased by Waters ranged between one ounce (twenty-eight grams) and four ounces (112 grams). When Waters returned to Moruya, he would distribute the amphetamine to his associates who in turn would supply to other drug users. At different times the co-accused, Shannon and Grant Waters, knowingly assisted Codie Waters in the distribution of drugs.

The supplies 14-15 February

7. On 9 February 2006, Codie Waters sent MJW a text message to arrange to meet in Canberra to buy amphetamine. Text messages were exchanged on 10 February 2006. On 12 February 2006, Waters received a text message from Williams. In response to it, Waters travelled to Canberra on Monday 13 February 2006. On Tuesday 14 February 2006, Waters met MJW in Canberra and bought two ounces of amphetamine. Shortly after this meeting, Waters sent MJW a text message asking, “I will grab those other two flower bunches off you tonight if that’s all right”. MJW replied, “Okay”. On 15 February 2006, Waters sent MJW a text message asking, “Hey mate, how are you?”. MJW replied, “Organising it now, bro”. Waters and MJW then arranged to meet at a service station. During the meeting, Waters was supplied with a further two ounces of amphetamine.

8. Following this supply, Waters spoke to a number of people in New South Wales by phone arranging suitable places and times to supply them with amphetamine. He drove back into New South Wales with the four ounces of amphetamine.

9. On 16 February 2006, MJW contacted Waters arranging a meeting to discuss his concerns that they were being investigated by police. On 25 February 2006, police recorded a phone call between Waters and a man named Jamie. Towards the end of that call Jamie said, “Fuck, you could have given me some...” and Waters told him, “Already gone”, by which I understood Jamie to mean that he was looking for some amphetamine in circumstances where this investigation was ongoing and Waters was indicating that the amphetamine had “already gone”.

10. On Wednesday 1 March, Waters and MJW exchanged text messages and arranged to meet in Canberra. MJW asked Waters, “Same?”, and Waters replied, “Yes please”. Waters then hired a rental car and booked a room at a motel in Canberra. He travelled to Canberra with his girlfriend. Waters notified MJW on his arrival and shortly MJW told Waters he was ready. Waters and MJW met and Waters was supplied with four ounces (112 grams) of amphetamine. There was some negotiation in price, MJW claiming $10,800 was the negotiated price for the four ounces of amphetamine. He rang Waters to complain that he was $500 short of the agreed price and Waters agreed to fix MJW up on the difference on the occasion of the next supply of drugs. Waters returned to New South Wales with four ounces of amphetamine.

11. On 14 March 2006, Waters and MJW exchanged text messages agreeing to meet in Canberra on 17 March. On St Patrick’s Day, Waters drove to Canberra and met with MJW. During the meeting, MJW supplied Waters with an ounce (twenty-eight grams) of amphetamine. Waters received a telephone call from a man by the name of Matt O’Shea. There was a conversation. Waters was indicating that he was on his way, that he had had a bad night and O’Shea said, “No good eh?”. Waters was complaining that he wanted to come home but he only had to come back in a day or so, that, “All I’m waiting on now is just--“ and O’Shea asked “The second one?” and Waters replied, “Yeah, or the fourth, mate. Whatever, it doesn’t matter”. Waters complained that he was unhappy. “I got one, I got one, I usually get four, man. That’ll last me a fucking day, maybe two days”. This was in another call to a man by the name of McCurley. McCurley told Waters, “Dead set I’ve got people waiting everywhere, man. All right, ring me when you get back here”. I am satisfied both O’Shea and McCurley were customers of Codie Waters and were seeking to maintain their level of supply with him.

12. On 21 March 2006, Waters sent MJW a text message seeking a further meeting. Codie Waters met with MJW in Canberra on three further occasions, 24 March, 1 April and 15 June. On 1 April 2006, Waters and MJW met at the university gym in Belconnen. During that meeting they were surveilled by police and photographed. On 11 April, MJW phoned Waters and told him “Just talking to me mate and you should shut up shop, bro”. The accused Codie Waters replied, “Okay” and was told by MJW, “Because...photos and everything”. Codie Waters replied, “Yeah, no worries”. Waters concluded that conversation, “I’m due for a holiday anyway, man”.

13. Shortly after that call, Codie Waters telephoned his brother Shannon telling him of MJW’s concerns. Codie Waters then directed Shannon to remove some amphetamines hidden under a tarp and to move it “Up the hill”.

14. On 15 June 2006, Codie Waters travelled to Canberra to meet MJW to buy amphetamine. On 16 June 2006, police intercepted a telephone conversation between Waters and an unidentified male in which Waters told that male, “I’m just fucking waiting for a phone call and then I should be home”. Waters returned to Moruya at about 5.08 on 16 June 2006.

15. Police intercepted a telephone call between Waters and a man by the name of Craig Cameron in which Waters complained about the quality of drugs that MJW had offered him and that he, Codie Waters, had refused to buy. That conversation concluded,

Waters: So, yeah, hopefully in the next day or two.
Cameron: You haven’t even got a baggie there?
Waters: Yeah, probably two, two days, bro.
Cameron: Oh yeah, no baggie there?
Waters: I’ll give you a ring.”

16. On 24 June, MJW called Waters and said “I’m sorry bro, I’m going to bring it to you, you know...” and Waters said “Are you sure?”. MJW said “Yeah man. Fuck, I’m not going to make you drive you know”. He continued “This is better, yeah. You’ll be happy with this one I think”. That call ended and another call shortly afterwards where MJW asked if Waters had seen any police around the Batemans Bay area and asked the accused Codie Waters if he could arrange for someone to have a look around shortly before he, MJW, drove through. Waters indicated that he could do that.

17. On 28 July, that is more than a month later, MJW telephoned Waters and told him that he would drive down with his girlfriend to see Waters and to supply him with four ounces of amphetamine. At about 6.30pm, police stopped and searched a car in Bungendore New South Wales driven by MJW. There were two people in that car, MJW and his girlfriend CK. As a result of the search, police found a plastic bag containing 114.6 grams of amphetamine with a purity of 21.5%. I have assumed from the way things thereafter unfolded that MJW at least was arrested.

18. On 29 July 2006, police intercepted a call between Codie Waters and one Tim Gottaas. In that conversation Waters said, “I’m fucking waiting for this...to turn up last night. I stayed up ‘til 2:00. He was supposed to come”. There was further conversation and Waters said, “I organise things right and then I’ve got to let you guys down you know”. Waters elsewhere said in the same conversation, “Hopefully [he’ll] be here this morning”. Gottaas said “Just let me know anyway”, Waters, “I’ll contact you straight away”. I am satisfied that Gottaas was a customer supplied by Waters.

19. In another intercepted telephone call, Waters again complained to an unidentified male about MJW’s failure to arrive. He said, “I don’t know what’s going on” and elsewhere, “It was supposed to be by last night” and elsewhere, “he was just waiting on a phone call”. I have not identified MJW because I understand that he was charged with possession and his case was dismissed; in which case notwithstanding his involvement in this case he is entitled to the benefits of a presumption of innocence, one of which is to have his name withheld.

Cultivate and supply of cannabis (the form one matter)

20. Between 1 March and 30 April 2006, police intercepted a number of phone calls, which showed that all three accused knowingly took part in the cultivation of cannabis plants in the Moruya area. There are at least ten cannabis plants yielding, it would seem, a total of somewhere between ten and twenty pounds, that is four and a half to nine kilograms of cannabis leaf. The plants were harvested over the weekend of 1 April. While some of that cannabis leaf was personally used by each of the accused, Codie Waters also supplied some of the leaf to paying customers.

21. At about 8.30am on 31 July, police attended Codie Waters’ premises. All three accused were present. They were arrested and a search warrant was executed. Police located 60 grams of cannabis, a number of fake cans with screw top lids used to conceal prohibited drugs, several plastic bags matching the packaging of the prohibited drug found during the search of the MJW vehicle on 28 July, further resealable bags and twelve mobile telephones, some of which had been monitored by investigators. All three accused were returned to Moruya police station and have been in custody since their arrest.

Receiving stolen property, also a form one matter

22. During the search, police found and seized a red Honda XR 650 motorcycle earlier stolen from an ACT address in 2002. Analysis of a phone call intercepted on 4 March 2006 revealed that the motorcycle had been offered to the accused Codie Waters for $400. During the call, Waters was told that the motorcycle was stolen property.

McCurley

23 McCurley was arrested by police on 1 August 2006. He told investigators that he was a user of amphetamine and had commenced buying drugs from Waters and selling it to other users to support his own habit. In late 2005 he said, Codie Waters asked him if he knew anyone that he, McCurley, could sell amphetamines to. Between 9 February 2006 and 5 May 2006, McCurley claimed to be supplied between five to seven grams of amphetamine each week by either Codie, Shannon or Grant Waters for cash. Throughout this time, he regularly purchased an average of two grams of amphetamine at a cost of $560. On each occasion, McCurley arranged to meet either Codie or Shannon Waters. McCurley said that he would then on-supply to approximately eight regular customers in the area.

Craig Cameron

24. Craig Cameron was also arrested. His arrest was on 31 July 2006. On 12 December 2006, Cameron attended Batemans Bay police station. He told police he had known Codie Waters for about 18 months and that over the last 12 months Waters had supplied him with amphetamines. The amount he purchased varied from four grams down to a point (0.1 gram). Waters supplied him on average with at least a gram a week over this period. Cameron said he would pick up the drugs from Waters’ house but on some occasions Waters would deliver it to him. When Cameron collected it from Codie Waters, Shannon and Grant Waters would often be present. On about ten occasions, Shannon Waters delivered amphetamine to him. Grant Waters delivered the drug to him “once or twice”.

Gottaas

25. Gottaas was arrested on 3 August 2006. Gottaas told police he had known the Waters family for many years, having been to their property at Moruya on a number of occasions. He told police that for the past 12 months on a regular basis, weekly to monthly, Codie Waters supplied him with amphetamine in amounts varying from one gram to three and a half grams. Gottaas said he would then on supply this drug to four other people.

Objective criminality

26. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence or offences as an essential step in assessing the seriousness of the criminal behaviour of the offenders. That is done by comparing objectively the criminality exhibited in the case before the Court with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing.

27. Courts and the legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression many offenders may initially entertain, supplying drugs is not a social but rather an antisocial behaviour. Courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug’s potential for harm. True it is, harm is done by drugs. Inescapable as it is, harm is done by drugs. That is what makes it antisocial.

28. Harm to others when inflicted by someone else must be antisocial. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and by its indirect impact on the community at large. For some, if not most, drugs such as the ones I am concerned with here, cannabis and amphetamine, can be addictive. Some are also, and indeed both of those, destructive, sometimes causing or contributing to mental health problems, to aggression, to paranoia. Supplying drugs can lead to, create or sustain drug addicts. The description Perrin gave to me in his evidence of the three of these offenders was a description of drug addicts. Nobody could say that they were in the prime of health when he saw them.

29. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and other effects of drugs. That is the real essence of the criminal harm done by suppliers of drugs. That is, that in a greater or lesser way they are contributing to the disenabling of other human beings. It is in that sense that drug supplying undermines public health. Associated with drug addiction are other forms of crime such as armed robbery, break and enter and steals. That is a loss of property to an owner usually arising from that owner’s productive efforts in the community. Associated with robbery and break and enter offences is trauma; emotional and psychological damage to victims caused by violence and/or by intrusion and the invasion of their privacy as people trample uncaringly, unfeelingly and intrusively about their homes. The spending of money on drugs by addicts without corresponding productivity by the drug dealer amounts to a monumental transference of wealth, usually from the already poor, without any corresponding economic gain in the community. At every level then drug dealing is criminal conduct because of its corrosive effect upon society as a whole.

30. Although given in another context, I note remarks by Hume J in R v Smiroldo [2000] NSWCCA 120, his Honour referring to earlier remarks he had made in Kalache [2007] NSWCCA 2 para 13:

“Other things being equal, doubling the quantity [of drugs supplied] is calculated to double the illegal profits for those engaged in such enterprises and if not to double, at least to substantially increase the harm. When an offender knows the quantity in which he is participating, even more so when his earnings and profit are proportional to or vary with that quantity, considerable weight must be given to it in assessing his criminality”.

31. The background of this offence establishes that Codie Waters was the principal of a drug distribution network where he on-supplied to others who would in turn on-supply probably to end users. He supplied to others. That he supplied to others who in turn would on-supply, aggravates his criminality. The particular supplies I am dealing with must be understood against a background that this offender had been supplying amphetamines at some level at least some time prior to 1 January 2006. Put another way, the supplying forming the centrepiece of the charge he now faces was not his first venture into supplying amphetamine.

32. The operation came to an end with Codie Waters’ arrest on 31 July 2006. His supplier had been arrested three days earlier seeking to deliver four ounces of amphetamine to him. I have looked at the definition of supply. His intended purchase of the undelivered amphetamine does not come into the definition of supply, thus his dealing with MJW is this context does not constitute a supply within the structure of this offence. However, the conversation with Gottaas on 29 July indicates an agreement to supply some of the expected delivery to him. Likewise, his phone call with the unidentified male can only be consistent with an agreement to supply that man with some amphetamine yet to be delivered.

33. There are then three periods during which amphetamine from Canberra made its way to drug purchases in and about Moruya, 15 February, 1 March, 19 March. In all, I am satisfied beyond reasonable doubt that 252 grams of amphetamine was brought to Moruya by Codie Waters and some was used by himself and his two co-offenders.

34. On what basis amphetamine was distributed to Grant and Shannon Waters is not disclosed in evidence. I cannot be satisfied whether it was for reward or for services rendered, but I am satisfied it was for one or the other and not for payment of money.

35. On one occasion Codie Waters paid $10,800 for 112 grams. It is likely he paid $10,300 for the earlier four ounces delivered to him. It is likely he paid somewhere between $2,600 and $3,000 for the single ounce. I would estimate the value of the amphetamine to him from the seller was something in the order of about $24,000.

36. I am satisfied the dealing between Codie Waters and his supplier was stopped for a number of weeks because of fears of police detection. I cannot be satisfied any dealing was done on 24 March or 1 April or in any of the meetings in April or May, if there were any. I do note, however, McCurley claims to have been in receipt of a regular supply of five to seven grams of amphetamine up to 5 May and others of his customers claim to have been in regular supply of lesser amounts during the same period. Whether that was from stocks already held or not, I am unable to say.

37. While the offenders are not punished for the period when Codie Waters did not receive supplies from Canberra, it has significance in understanding the flow of money against the desired flow of money. The desired flow of money is important in assessing that Codie Waters was dealing in amphetamine for financial gain, although the financial gain was not as much as he would have desired. Had all of the amphetamine been supplied at the price paid by McCurley for the two grams, that is at a cost of $560 for the two, the return to Codie Waters on his investment would have been $70,560, hence the significance of my comment about the transfer of wealth from the poor to others. I should pause there to say I do not believe he received that sum of money. In fact, I know he did not, because of his own use. And invariably when you sell more than two grams you reduce your prices per gram also. But it does satisfy me that my finding of financial gain is a correct one. Notwithstanding his own use and the use by his brother, I am satisfied he trafficked in amphetamine for personal financial gain.

38. The defence case was that the offender was living in impoverished circumstances, that is to say in the absence of electricity and sewerage. It may also be, if I have understood the tenor of the evidence correctly, he was without town water supply. Clearly, However, he had a motor vehicle and was able to hire motor vehicles.

39. I have already noted the offender sold to others knowing they were on supplying to their own customer base who were likely to have been end users.

40. Codie Waters admits to his criminality in respect of three matters; receiving for $400 a stolen Honda XR 650 motorcycle initially stolen in the A.C.T, knowing it was stolen. He acknowledges his criminality in supplying of cannabis leaf, some of a product of cannabis plant and something in the order of 4.5 to 9 kilograms of cannabis. I have to be satisfied beyond reasonable doubt as to the base quantity from which the supply came and I could not be satisfied it was more than 4 ½ kilos because that is the bottom limit of the agreed facts.

The objective criminality of Shannon Waters

41. At different times he knowingly assisted for a seven-month period, including up to his arrest on 31 July, in the distribution of the amphetamine to Craig Cameron. Craig Cameron came to be supplied amphetamine by Codie Waters in circumstances where Shannon Waters was present. By his plea of guilty I , I accept his presence there was in some capacity, possibly to provide security to Codie Waters when the deal was consummated or possibly to be able to support Codie Waters if there was any dispute about transfers of drugs or of money. On some ten occasions he delivered amphetamine to Cameron. McCurley was delivered amphetamine between 9 February and 5 May, something in the order of 5 to 7 grams on a number of occasions by Shannon Waters. It would seem on these occasions cash was passed from McCurley to Shannon Waters. In April of 2006, Codie discussed his concerns regarding possible detection and instructed Shannon Waters to transfer some amphetamine from one hiding place to another more secure hiding place away from the house or car. I am satisfied beyond reasonable doubt Shannon did as he was instructed. There is no evidence of any negotiation being done by Shannon Waters.

42. Shannon Waters also asks that his knowingly taking part in the cultivation of ten cannabis plants be taken into account when I deal with him on the substantive charge in the indictment.

Grant Waters

43. Grant Waters appears to have the least criminal culpability of these three. At different times he knowingly assisted Codie Waters with the distribution of the drug. Between 9 February and 5 May 2006, Grant Waters would deliver amphetamine to McCurley for cash and return the cash as I understand it to Codie Waters. Grant Waters was often present when Craig Cameron collected his supply of amphetamine. Likewise, I take the same inference from the plea of guilt in his case as I did in Shannon Waters’ case. Grant Waters also admits his guilt and criminality in respect of knowingly taking part in the cultivation of cannabis plant and possessing cannabis leaf. When I come to sentence him for the substantive charge in the indictment, he asks that I take those two matters into account.

Does a Standard Non-Parole Period Apply

44. Although all offenders have been charged with offences created by s 25(2) of the Drug Misuse and Trafficking Act, the back of the indictment makes it clear there is a difference in the essential elements of each of these offences. Section 54A and B of the Crimes (Sentencing Procedure) Act provides that a standard non-parole period for an offence is the non-parole period set out opposite the relevant offence in the Table. Item 18 only provides a standard non-parole period of 10 years for the offence describe as (25)(2) Drug Misuse and Trafficking Act, (supplying commercial quantity of prohibited drug), not cannabis leaf, involving less than a large commercial quantity of that prohibited drug. Only Codie Waters is charged with an offence then carrying a standard non-parole period.

45. For an offence falling in the mid range of seriousness, he is the only one of the three charged with supplying. To determine whether his offence falls within the mid-range of seriousness, the Court is required to have regard to aggravating and mitigating factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, (R v Way (2004) 60 NSWLR 168). I have already observed that supplying drugs is an offence against public health and in that sense against public safety (21A(2)(i)). However, danger to the public safety is an inherent feature of this offending. There is nothing in the evidence before me that raises this inherent feature to a point of aggravation.

46. I am satisfied the offence was part of an organised criminal activity and that he was the principal person involved in much of that organisation. This offender secured his illicit drugs in Canberra, thereby reducing the risk of detection by New South Wales police at the point of supply. He had a network of regular purchasers who on-supplied to others. He used his brother and father to assist in delivery and collection of funds and to remove or diminish his risk of detection at the point of transfer of drugs and collection of money. At one point he directed his brother to better secrete drugs when in fear of detection, satisfying me that he was always conscious that detection was something to be avoided at all costs.

47. Part of the organisation involved the possession and presumably the use of a number of mobile phones. The Crown also seeks to rely upon the ongoing activity as a matter of aggravation. There were four discrete collections of amphetamine and a fifth one frustrated. His actual supplies were regular, at least to some customers, throughout the period. However, the prosecution cannot have it both ways. Each supply was in itself a discrete offence in its own right, but would have been far less than a commercial quantity actually charged. There is (already) an inbuilt feature of aggravation built into the charge that is only achieved by aggregating the quantities supplied. The consequence of the aggregating is that the offender is exposed to the prospects of an increased maximum penalty and the prospects of a standard non-parole period. To take account of a series of criminal acts, (s 21A(3)(m)) constitutes a double counting. 48. My point is emphasised particularly in this case by recognising that the totality of amphetamine is 252 grams. The lower threshold for commercial quantity is 250 grams, thus this supply only just qualifies as a commercial quantity by three grams. Way’s case makes it clear that normally a plea of guilty, being a mitigating factor, s 21(A)(3)(k) Crimes (Sentencing Procedure) Act places the case outside cases normally attracting a standard non-parole period.

49. In this case, Codie Waters is also entitled to rely upon his prior good character as a mitigating matter that would support the setting of a shorter non-parole period than the standard non-parole period. Of course the impact of the accused’s good character as a mitigating feature is to some extent counterbalanced by the fact that this offence of supply is not to be viewed as an isolated incident.

50. There is evidence that Codie Waters was involved in supplying amphetamine prior to the charge period. I have taken into account the network and duration of offending conduct, but I would not classify this offence as falling within a mid-range. What saves it from so doing is the closeness of the total quantity supplied to the lower threshold of commercial quantity as provided by the schedule in the Act. Accepting as I do that some of the amphetamine was for own use, the amphetamine actually supplied as distinct from held for supply into the community may fall somewhere, and probably does fall somewhere, below the commercial quantity. The measure of harm to the extent that it can be gauged only by quantities supplied (see Kalache) is less than it would be in the bulk of cases caught by Item 18 in the table.

Subjective features

51. The subjective features of the three offenders came from evidence of Jason Perrin, half brother to Codie, Shannon and stepson to Grant Waters. Codie Waters also gave evidence covering all three. There was no pre-sentence report or psychiatric/psychological profile on any offender.

52. Jason Perrin lives in the ACT. His past included a substantial period as a heavy drug user. He had turned his life around and is now involved in drug counselling. He is reputable, at least I take it to be so, because he is employed by the ACT Education Department. Prior to their incarceration, he had not seen the offenders for some years. However, since their arrest he has been a regular visitor to the Goulburn gaol where they are housed.

53. His first impressions were that their appearances were drawn, there was chalky residue on their lips consistent with drug withdrawal, blotched and pimpled skin and a strong evidence of an absence of personal hygiene. I should note; as the offenders presented in court after nearly two years in custody, each now looks well nourished, clear of eye, clear healthy skin and reasonably well groomed. Perrin gave evidence that he had noted a change in their appearance and personal hygiene.

54. His mother, Jessie Perrin, who he shares with Codie and Shannon, is also a reformed addict of some two years. Her relationship with Grant Waters is long finished. Perrin gave evidence that Sarah Porter, Codie’s partner, gave no indication of drug involvement, an important matter when assessing Codie Water’s rehabilitation prospects.

55. A feature of the case of each offender was the level of community-based support available to each. Perrin indicated a willingness to monitor the progress of each of the offenders in the community. He gave an undertaking to the Court to report to Probation and Parole any breach of parole rehabilitation conditions. That was done after he had heard conditions proposed by Mr Levet, counsel for the offenders, in respect of Grant and Shannon Waters. It was indicated by Mr Levet that Codie Waters was also willing to subscribe to and be bound by the same conditions upon his release. I note I was impressed by Perrin. Provided the offenders were prepared to cooperate with him and be mentored by him, their prospects for rehabilitation appear promising.

56. While Perrin has the expertise in drug rehabilitation, his chances of impacting upon any of the offenders depends upon their commitment, not his. In the absence of any commitment by the user, the healer will have absolutely no power. Whilst the men have been in custody there has been some progress. I have referred to changes noticed by Perrin. Codie Waters gave evidence indicating a desire by all three to change their lifestyles. Grant Waters has attended an alcohol and other drug program focused on cannabis use reduction and tendered a certificate of completion. The relevant alcohol and other drug worker noted that the other two had also participated in a program when they first arrived, whatever that may mean. There is a difference I note, maybe just technical, between participated and completed. Grant and Shannon Waters are employed in the prison laundry and have been so for eight months. In respect of Grant and Shannon Waters, each has through his counsel indicated a willingness to accept the following parole conditions:

1. To reside at 32 Cole Street, Downer ACT or such other place as may be approved by probation and parole. That I am told is the residence of Grant’s mother and Shannon’s grandmother. There is apparently room there.
2. Attend not less than four meetings per week of the 12-step fellowship. (Narcotics Anonymous is such an organisation that follows the 12-step fellowship).
3. Accept the supervision of Probation and Parole or such other service as Probation and Parole directs.
4. Seek within three days to do all each can to maintain full-time employment with Radkon Constructions, 7 Brooke Street, Queanbeyan. The Court has been informed that Conrad Ward of this firm is willing to offer each full-time employment. I am assuming that that was something that had been checked out by the legal representatives.
5. Each is to accept random urine testing not less than four times monthly during the parole period. A failure to provide a sample of urine or the supplying of a fraudulent sample of urine is to be deemed a breach of the parole conditions. I note that the purpose of providing the random urine is for the purposes of testing the presence or absence of illicit drugs. The Crown did not seek to be heard when Mr Levet advised the Court that the Crown was agreeable to the overall sentence of three years with a two year non-parole period in respect of Grant and Shannon Waters.

57. The court does not have longitudinal details of the drug or alcohol history of any of the offenders, nor of the education, employment or general skills of the various offenders. In these circumstances, it becomes more difficult to attempt any meaningful assessment of these offenders’ rehabilitation prospects other than to accept there is a willingness by the offenders to rehabilitate and there is support from the family. Neither, Codie Waters, aged 28, nor Shannon Waters, aged 25, have any prior criminal history.

58. Grant Waters, aged 51, has a variety of summary offences: common assault (1995), cultivate prohibited plant (1992), offensive behaviour x 3 (1990). There are driving and related offences in 1982, 1985, 1989, 1990 and 1979. There are also two charges dealt with in the Children’s Court in 1972 and 75. His total criminality through the years has been punished by fines totalling $1,160. He was placed on 12 months recognisance in 1995, which he appears to have kept. His record does not disentitle him to some leniency on this matter.

Plea status

59. Each offender was committed for trial. The defence case is that the DPP was not in a position to have meaningful discussions in respect of the plea until 9,000 tapped telephone calls were sorted out. I interpolate here the 9,000 calls did not involve just Codie Waters and MJW. The Crown desired to have transcripts of these calls and to sort out those involving these offenders. When each accused was arraigned in this Court the task had not yet been completed. Post-arraignment and well before the trial date there were ongoing discussions in respect of the plea. Well before the scheduled trial date, the Crown was aware there was to be a plea. It is not clear whether the Court was told in advance. I am told no Crown witnesses were required to attend on the trial date. Whether subpoenas were issued is not disclosed. The Court allows a discount usually between 10 and 25% for pleas of guilty. The quantum of discount is based upon the measure of its utilitarian value to the administration of criminal justice.

60. The utilitarian value is not only measured by days of court time saved, estimated at two to three months, or the freeing up of Crown or defence resources for other cases. There is a utility also because the criminal justice system is served by guilty persons acknowledging their guilt. That sustains the community’s confidence in the administration of justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime will be held accountable.

61. While these were not pleas from the outset, they did have significant utilitarian value. For example, I note that the case against MJW was dismissed. I have determined a 20% discount for the plea as appropriate in the case of Codie Waters. The transcript of this hearing will record that the plea discount did not figure in any overt way in the sentencing outcome that has ultimately been reached for Grant and Shannon Waters. Rather, it is because an alternative method of reaching a result I was seriously considering, namely s 11 bail, was proposed by the sentences suggested.

62. My preliminary proposed outcome was predicated, among other things, by giving a benefit for the plea of guilty to each of Grant and Shannon Waters by the extension of the bail I was anticipating giving. At the end of the day it seems to me they still can say they have received the benefit of a plea.

Deterrence

63. The chief purpose of the criminal law put in place by Parliament is to deter persons tempted to breach the provisions of the criminal law. Parliament does that by prescribing penalties for those who engage in conduct prohibited by the criminal law. Consequently when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. In each case here it is 20 years’ imprisonment. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind those maximum penalties and their deterrent purpose. I should also mention there of course the standard non-parole period for the offence Codie Waters committed and its deterrent purpose. There is also a specific deterrence aimed at individuals like-minded to each offender who, but for such deterrence, would be willing to commit crimes similar to those for which the offenders are being sentenced. Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him or her from re-offending.

The impact of the guideline judgment

64. The Attorney General’s reference 1 of 2002 requires a court, when taking into account a Form 1 matter in respect of an offence, to drive that sentence upwards from what otherwise may have been the appropriate sentence. That driving upward is on account of the additional criminality reflected in the Form 1 offences. All of the offences on each of the Form 1, had it stood on its own, would have been dealt with in the Local Court. The most serious of the offences is the receiving stolen property charge. None of the others, I am satisfied, would have resulted in a custodial sentence in the circumstances of each of these offenders. Had the receiving charge resulted in a custodial sentence, it would have been measured in months rather than anything else. Had the offence been on the indictment, the principle of totality would have then required taking all criminality reflected by the offending into account. That would have had the effect of driving down any sentence on the receiving charge. Thus the impact in this case of the Form 1 offences is to drive the sentences upward, but only in a very modest way.

Parity

65. The principles of parity do apply between Grant and Shannon Waters. Although Grant’s criminality is marginally less, he does have some past offences although I have noted their impact is very minor. For reasons I have explained, different offences, greater role and the impact of the standard non-parole period, parity does not apply between Codie Waters and the other two.

HIS HONOR: Mr Crown you can’t help, but Mr Levet is there any significant matter I’ve left out before I go to the formal part of the sentencing?

LEVET: No, your Honour. Save and except that this is on transcript. Your Honour made a comment in which your Honour presumed that inquiries had been made by legal representatives in relation to the jobs on offer and your Honour will recall on Friday of last week I advised you that those inquiries had been made and indeed that I had required to speak to the proposer of the employment.

HIS HONOUR: That’s right. I’d forgotten that. Thank you very much for that.

I will deal with Shannon and Grant Waters first if I may. Would you two gentlemen please stand up. Shannon Waters and Grant Waters, you are each convicted of the offence that you, between 1 January 2006 and 21 July 2006 at Moruya in the state of New South Wales, did knowingly take part in the supply of a prohibited drug, namely amphetamine, being an amount which was not less than the commercial quantity applicable to that drug. I set a non-parole period of two years to commence from 31 July 2006 and to expire on 30 July 2008. I find special circumstances. The basis upon my finding of special circumstances in each of your cases is that this represents your first time in full-time custody. You have a rehabilitation plan in place and the rehabilitation of each of you is better achieved and better tested by your being in the community rather than in the artificial environment of a gaol. I set a non-parole period in your case, Grant Waters, of nine months and in your case Shannon Waters of 12 months. Pursuant to s 52 of the Crimes (Sentencing Procedure) Act, I set as conditions of your parole, as I am entitled to do, the conditions that I mentioned in my remarks on sentence. I w ill not repeat them. You may both sit down.

66. Codie Waters, would you stand up please. Codie Waters, but for your plea of guilty I would have set an overall sentence of six years’ imprisonment for this offence. I should say in respect of all of you I have taken into account the offences on the Form 1. I discount that, as I said I would, by 20%, which amounts to a discount of 1.2 years. I round that out to fourteen and a half months. That gives an overall sentence of four years, nine months and fifteen days. I find special circumstances. The basis upon my finding is identical to the remarks I made in respect of Shannon and Grant Waters. I set a non-parole period of two years nine months and fifteen days to commence from 31 July 2006 and to expire on 15 April 2009. I set a balance of term of two years. Sit down.

BHASIN: Your Honour, the Crown seeks a drug destruction order.

HIS HONOUR: Not opposed?

LEVET: No, your Honour.

HIS HONOUR: The drugs are to be destroyed in the usual way. I order a copy of these remarks taken out as the sentence imposed on Codie Waters is more than four years, but I will need a copy of the orders sent to the probation and parole people. What’s to happen there Mr Levet?

LEVET: Will your Honour direct that they be released to parole at the expiration of the non-parole period?

HIS HONOUR: Yes, they are both entitled to that and I do so direct. Each of the accused is to be released from custody on 30 July next week.

LEVET: That’s in relation to Shannon and Grant?

HIS HONOUR: Yes. Stop smiling, Codie Waters, that was a mistake. Each of the two accused, yes.

LEVET: Will your Honour make an ultimate direction for date of parole in respect of Codie Waters?

HIS HONOUR: I can’t. All I can do is recommend that he be seriously considered for parole. I can’t order his parole. Your sentence is more than three years and I can’t order the Parole Board. Your parole will be determined by the progress you make whist in prison and if Mr Perrin is accurate and you are accurate you ought to look forward to your release, but it is the Parole Board that makes the decision on what you deliver to them. I’ve ordered the judgment so there won’t be any need for them to pause looking for a judgment, it will be there.