R v Watson

[2024] NSWDC 362

District Court

New South Wales

Medium Neutral Citation:

R v Watson [2024] NSWDC 362

Hearing dates:

16 July 2024

Date of orders:

16 July 2024

Decision date:

16 July 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 3 years 3 months with a non-parole period of 1 year 10 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness — Deterrence

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Mental illness — Drug addiction —Health issues — Institutional childhood sexual abuse

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Category:

Sentence

Parties:

Steven Watson (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
K Mackinnon solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/186071

JUDGMENT – ex tempore

Introduction

1. Steven Watson is for sentence today for a number of drug supply offences.

2. He was born in 1989. On 13 December 2022 he was released to parole after serving the non-parole period of a drug supply offence sentence. He was subject to parole until 17 June 2023.

3. On 9 June 2023 police stopped the vehicle he was driving in the Wollongong suburb of Fairy Meadow. There were drugs in the car, some of which were thrown from the car prior to the police stop. Despite his initial evasions and denials, which would appear to be the result of him not thinking very clearly at the time and perhaps being drug affected, when he was before the Local Court he said he would plead guilty to four drug supply offences. Each was charged pursuant to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW).

4. The supply offences were charged separately because each relates to a different illicit drug:

• Sequence 2: Supply 41.8 grams of methylamphetamine;

• Sequence 3: Supply 13.7 grams of cocaine;

• Sequence 4: Supply 25.71 grams of 3, 4 MDMA; and

• Sequence 5: Supply of 13.6 grams of heroin.

5. He also asked when I sentenced him for the supply of methylamphetamine (Sequence 2) that I take into account three additional offences on a Crimes (Sentencing Procedure) Act1999 (NSW) Form 1: Possession of cannabis; Possession of a restricted substant SUS250, I believe to be a steroid; And possession of $3,835 of Australian currency, suspected of being the proceeds of crime.

Facts for sentence

6. The offender gave evidence today. What he said was not seriously challenged. It is supported by the Agreed Facts and the extract of text messages found on his phone: Exhibit B.

7. At the time he was stopped and found to be in possession of illicit drugs, each of those drugs were held for the purpose of supply. He was supplying those drugs to other users. His individual supplies were on a small scale but extensive, as revealed by the snapshot from his text messages. He was in possession of multiple drugs which were available for his customers. He was dealing at small levels. The total quantity of each drug he was found with in, was closer to the lower end of the commercial scale than the upper.

8. Watson was himself a heavy drug user. I accept that when he was released to parole, he tried to keep a promise he made to himself, his family and his friends, that he would refrain from using illicit drugs. But he was ill equipped to deal with troubles and traumas in his life and the lives of others. Instead of providing support to those who needed him he reverted to the use and abuse of illicit drugs.

Serious offending

9. There was little subterfuge in Watson’s actions. His ‘victims’ were both the individuals to whom he supplied who, like himself, were using illicit drugs, and the community. The community suffers from the impacts of drug supplies. It is not just the effect drug have on users. It is also from the crimes that are committed by people who need to obtain the funds to buy illicit drugs and the impact of the sale of illicit drugs on the economy of the country and the State. All this must be taken into account.

10. The primary distinction between the four drugs, the subject of each supply count, is the quantity of the drug relative to the commercial quantity, making the supply of the methylamphetamine and the MDMA more serious than the supply of the cocaine and heroin. One does not distinguish, apart from any legislative provisions as to penalty ranges, between different illicit drugs, bar perhaps from cannabis which I note, is not the subject of the sentence.

11. It is accepted that so serious were each of the offences that custodial sentences are required. It is clear that the offending was for financial gain, a significant part because he had no other form of income, and he needed money to buy more drugs. In the scheme of matters dealt with by this Court each of the matters is relatively low in the range.

Matters on a Form 1

12. While I do not sentence for the goods in custody cash offence, it must still be taken into account. The fact that the drugs were for the purpose of supply and the fact that he had cash on hand simply reinforces my assessment of what he was doing and why. I have to be very careful not to double count those matters. He is not to be punished for a matter not for sentence.

13. The other matters on the Form 1 have some relevance, but here the possession matters would be unlikely to have resulted in custodial sentences and the other matter helps inform generally what was going on. So, while they too are taken into account they allow for a ‘clearing the books’. They do not require an increase in the matter for sentence to which they relate.

Other matters

14. The maximum penalty for each of the offences for sentence is 15 years imprisonment. It is one guide to the exercise of my sentencing discretion.

15. Each of the sentences I intend to indicate will be reduced by 25% to take into account the utilitarian value of the guilty pleas. As there will be some accumulation of penalty, I will take care that that benefit not be eroded by the process of accumulation.

16. There must be some accumulation, but there should be considerable concurrence, because apart from the nature of the drugs and their relative quantities, all of the other aspects of the offending are shared between them.

17. He has a criminal record that does him no credit. He has regularly been before the courts. The fact he was on parole for two matters aggravates the sentence I must impose. He should serve some additional period solely in relation to those breaches, but that will be modest.

18. Watson has served sentences for supplying drugs before. As the Crown properly submit, community protection requires that Watson be kept in custody so that the community can be protected from him. But the sentence must be proportionate to the level of offending. He must be returned to the community.

19. He has utilised his time in custody to engage in the Buprenorphine or Buvidal program, obtained certificates, training, engaged in courses including mental health first aid, he is working full time in the kitchens at the gaol. He has spoken with people about a plan for his rehabilitation on release and, despite past failures, has a clear-sighted plan for his future.

20. While, given those past failures, no court could be wholly confident that he will not reoffend, he has a number of motivations to reform. He has demonstrated some commitment to change. Accordingly, it is appropriate that that motivation be rewarded by a finding of special circumstances, to increase the amount of time available to him to be assisted and supervised on parole. The fact that this sentence will be accumulated on others is another factor requiring a finding of special circumstances.

Subjective case

21. The offender gave evidence. He expressed appropriate regret for the harm he has done to the community, his family and himself. He has a number of motivations to keep to the promises he has made to himself and others. But he has broken such promises before.

22. He affirmed the history he gave to his psychologist, Dr Dornan. He comes from a prosocial family. His parents are presently caring for his child. His childhood is described by Dr Dornan as “unremarkable”. But there are references in the report to his dyslexia, diabetes and asthma. There is also evidence that I accept, on balance, that he was when a young adolescent abused by a priest. That abuse was reported at the time. It now the subject of civil proceedings. It coincided with him leaving school early.

23. Following his disrupted schooling he left the family home to live with a sick grandfather where he had to depend on his own resources. He took up the use and abuse of drugs while too young to make a rational choice about such substances. That drug use, and alcohol use, increased as a maladaptive response to the abuse. He has in the past engaged in drug rehabilitation, but the history is one of constant relapse. On at least one occasion he tells me he nearly died because of the cocktail of drugs he had ingested.

24. However, he was also to work, support himself, and form relationships.

25. He spent time in custody during the COVID-19 pandemic and suffered as a consequence of the multiple lockdowns and restrictions that were put in place during that period. Despite that suffering he was not deterred from resuming the use of drugs. It appears what is different now is his engagement in the Buvidal program, his age, and his consideration of his future.

26. Dr Dornan makes a link between his drug and alcohol use when young and the abuse he suffered at the hands of a priest. There have been no therapeutic interventions as yet. In Dr Dornan’s opinion Watson requires professional help and intervention; the sort of intervention is unlikely to be provided to him in custody. He diagnoses persistent Depressive Disorder and notes indications of symptoms of Post-Traumatic Stress Disorder, commonly associated with child sexual assault.

27. Dr Dornan discusses at length the impact of child sexual assault on young people and the common response of using and abusing illicit drugs. Adverse childhood experiences, he said at par [83.10], “can lead to a lack of consequential reasoning and the development of antisocial attitudes” and behaviours. A cycle of drug use, crime, custody has to be broken.

28. Dr Dornan suggests, at par [83.16], that Watson’s time in custody will be served harder than a prisoner who does not have his problems. Sadly, a significant number of prisoners do. But I accept that the more isolated he becomes the less likely he is to develop positive coping mechanisms. Gaols, it needs to be said are not therapeutic environments.

29. Watson has taken appropriate steps and that he has a plan and rehabilitation is an important part of any sentencing process. He has a sense of purpose. That should not be unduly undermined by the severity of the sentence, but there must be appropriate punishment for each of the crimes individually and collectively.

Submissions

30. Both parties provided written submissions and spoke to them. There is no significant difference apart from how the Court views the maladaptive drug use and its causes.

31. Mr Kwan, for the offender, stresses Watson’s underlying mental health problems and that the drug use was taken up when young. As the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 matters that impact upon a child’s development mean that their moral culpability is less than a person who did not suffer such traumas, and that the impact of such traumas does not diminish over time.

32. Madam Crown noted that the causal link between the drug supply and any childhood traumas is here, remote because time and time again the offender has demonstrated the capacity to lead a normal life but constantly returned to illicit drug use.

33. With respect, it is impossible for me in the short time available to resolve that dispute. What can be said is that there is in his history evidence for the genesis of his drug and alcohol problems. Although he is obviously capable, those problems have reasserted themselves, despite there being powerful motives for him not to use illicit drugs and powerful motives for him not to engage in drug supply.

34. In any drug supply case, sentences should indicate to others that heavy penalties will be imposed. This is commonly called general deterrence. Specific deterrence is also necessary. But as I have indicated earlier, far nastier things than going to gaol could have occurred, including death or the destructions of relationships, and yet he reoffended. Watson has a deeply ingrained number of problems that have resulted in his drug use. He has taken the easy way out each time by supplying to others, thus perpetuating the very problem that has led him to despair for his future.

Synthesis

35. The impact of trauma can reduce a person’s moral culpability. Drug use, while itself cannot mitigate and is no excuse to supply to others, can inform why something happened and what is to happen next. But repeated offending against the community requires removal from the community. But Watson has to be returned to the community.

36. Courts have to try and balance each of these important factors. Here, that can only be done by a sentence of imprisonment. And, by a sentence structured so that the minimum term in custody is that required by the seriousness of what was done, but also a sentence structured to allow Watson to have a goal to work towards, and not undermine that goal.

Orders

37. The orders of the Court are:

• In relation to the first matter, the methylamphetamine: There will be a sentence of 2 years, 1 month imprisonment indicated;

• Supply of cocaine: 1 year 6 months;

• Supply of the MDMA: 1 year 10 months;

• Supply of the heroin: 1 year 6 months.

38. The sentence will be 3 years and 3 months. It will date from 9 August 2023 and is two months after he went into custody. The minimum term will be 1 year, 10 months. He will be eligible for release to parole on 8 June 2025, after he has been in custody two years. He will be eligible for consideration for release on that date. Although that decision is one for the State Parole Authority, I would expect that if he continues to behave the way he has behaved to date, he will earn his release on that date. There will be a parole period of 1 year and 5 months reflecting a finding of special circumstances. Total sentence will expire on 8 November 2026.

39. I confirm that I have signed consent orders for the forfeiture of the Australian currency. The effective term is 2 years, and the parole period is 1 year, and the total effective time in custody for this and the other matters is 3 years, 5 months.

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Decision last updated: 22 August 2024