R v Watson-Wood, Daniel

[2017] NSWDC 410

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Watson-Wood, Daniel [2017] NSWDC 410
Hearing dates:	13 April 2017, 19 May 2017
Date of orders:	22 May 2017
Decision date:	22 May 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Supply prohibited drug >indictable quantity (not cannabis) (12.32 g MDMA) Convicted. Special circumstances found – 1st time in custody, need for extended period of parole to assist with rehabilitation. Sentenced to a total term of imprisonment of 30 months comprising of a NPP of 15 months to commence on 22/5/17 and to expire on 21/8/18, and a balance of term of 15 months to commence on 22/8/18 and to expire on 21/11/19. To be released to parole on 21/8/18. s166 Certificate matters: possess 2 small quantities of cocaine – total 2.08 g: Sentenced to a fixed term of imprisonment for 3 months to commence on 22/5/17 and to expire on 21/8/17. I order the destruction of the drugs. I order that EXH 6, the Blackberry mobile phones, be forfeited to the Commissioner of Police.
Catchwords:	CRIMINAL Sentence - supply prohibited drug, 3,4‑methylenedioxymethylamphetamine – possess prohibited drug, cocaine – subjective matters - unexplained wealth, living beyond his means, being in possession of significant indicia of supply – possession of 32 PGP encrypted Blackberry mobile phones
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Category:	Sentence
Parties:	Regina Daniel Watson-Wood
Representation:	Counsel: Crown: Mr D Jordan Watson-Wood: Mr P Little   Solicitors: Crown: Mr B Thomson Watson-Wood: Mr G Goold
File Number(s):	2014/366295

Judgment

1. Daniel Watson‑Wood appears for sentence in respect of an offence that he, on 12 December 2014, at Tamarama, in the State of New South Wales, supplied a prohibited drug, namely 3,4‑methylenedioxymethylamphetamine, in an amount of 12.32 grams.

2. The offender was found guilty by the verdict of a jury, the trial having commenced on 14 February 2017 and the verdict being returned on 2 March 2017. The offence is contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided by the legislation is provided by s 32 and is a term of imprisonment of 15 years and/or a fine of 2,000 penalty units. There is no standard non‑parole period provided in respect of such an offence.

3. In addition, the offender has asked the Court to deal with two offences, each being contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985; each relating to the prohibited drug, cocaine, and being in the same terms: that he possessed the prohibited drug, cocaine, between 11.32am and 1.40pm on 12 December 2014 at Tamarama. The total quantity between the two charges is 2.08 grams. The maximum penalty for an offence contrary to s 10(1) of the Act is imprisonment for two years and/or 20 penalty units. In the absence, of course, of the matter that proceeded to trial, the two cocaine charges would have been dealt with in the Local Court.

4. The Crown relied on the deeming provision provided by the Drug Misuse and Trafficking Act as well as advancing a case that on the basis of evidence presented by the Crown, the jury could conclude that the offender had unexplained wealth, and was living beyond his means as well as being in possession of a significant indicia of supply, that is, the possession of some 32 BlackBerry mobile phones, being “Pretty Good Privacy” or, PGP, encrypted, “PGP” being a program which enables data transmitted between BlackBerry mobile phones to be encoded so as to be thought to be beyond the reach of intercepting authorities;, that is, beyond the reach in terms of being able to read such data should the transmission, in fact, be intercepted.

5. As part of the offender's unexplained income, the Crown relied on the offender's banking records and income tax statements. His banking records indicated, in the proceeding 14 months to the date of the offence on 12 December 2014, that he received from time to time into his account, substantial sums of money paid in cash as well as a number of transfers from the accounts of his friends and associates in sums frequently in the amount of $300 or multiples thereof.

6. The Crown's case was that this could not be explained by his casual employment in the hospitality industry, and that he was otherwise living a lifestyle not supported by any disclosed income. In addition, the Crown relied on the fact that expert evidence indicated that 12.32 grams of MDMA with a purity of 54.5% could be used to make approximately 100 caps of MDMA.

7. The offender's case was that the substantial cash deposits into his account were the result of his conducting a business of selling encrypted BlackBerry mobile phones, and the deposits from his friends and associates were simply the repayment of monies that he had advanced on their behalf for a variety of reasons such as attendance at horse racing, music festivals or the payment of rental bonds.

8. As to the substantial cash deposits, his evidence was that they were the result of selling encrypted BlackBerrys or, alternatively, renewing the arrangements in relation to the encrypted BlackBerrys; that is, that the initial purchase price included a period of time during which the service could be used, but that that had to be renewed on a regular basis by further cash payments.

9. On 12 December 2014, the offender was living at 1/23 Fletcher Street, Tamarama, sharing with a friend, Andrew Cook. As at 12 December, he had been living at the Tamarama unit for approximately a month. Prior to that time, he had been residing in Melbourne while obtaining qualifications and working in the hospitality industry. The Tamarama unit had two bedrooms; each of the residents having their own bedroom. When New South Wales police officers searched the unit on 12 December 2014, they found and seized a plastic bag containing a brown, rock‑like substance which was later analysed to be MDMA, weighing 12.32 grams with a purity of 54.5%. It was located in a wardrobe in the offender's bedroom. In addition, two small bags of cocaine were also located.

10. There was no dispute at trial that the MDMA and cocaine were, in fact, the offender's. His explanation for the 12.32 grams of MDMA was that it had been given to him for free by a dealer on the basis that it was not good quality and that he could try it for himself and use it personally if he wished to or, if he found that it was not of acceptable quality, to simply dispose of it. The offender's evidence was that he had tried it and did not like it and intended to dispose of it, having acquired it only several days prior to the search, but had not done so by the time of the search.

11. Also located in the offender's bedroom was a box containing approximately 32 BlackBerry mobile phones, appearing to be new, each in its own box, and each box labelled in Texta with the letters "PGP", standing for “Pretty Good Privacy”. The offender had arranged for the importation of the box of BlackBerrys from Indonesia, but had provided the name of a friend – “Greg Reed” - as the recipient, although the residential address given for the delivery was his own address. The evidence established that Greg Reed had never given permission for his name to be so used, and it was accepted by the offender that when Mr Reed found out that his name had been so used, he was upset by the misuse.

12. The offender had also pretended to DHL when he rang with regard to the delivery, which was then impending, that he was, in fact, Greg Reed. In addition to the box of BlackBerrys, some 50 T‑Mobile SIM cards were also located in the offender's bedroom.

13. As to the offender's explanation that he had been engaging in the sale of encrypted BlackBerrys as an explanation for the substantial cash deposits into his bank account - noting that it is not illegal to sell BlackBerrys, nor that it is illegal to sell encrypted BlackBerrys - the offender produced no independent evidence to demonstrate that he had ever sold a BlackBerry at any time. That, of course, does not mean that he had not. The expert evidence was that encrypted BlackBerrys are particularly desired by those involved in criminal offending, in particular, organised crime, including drug crime.

14. Those who wish to purchase such devices clearly do not wish to have records of the purchase or their association with the individual device recorded. In those circumstances, it is not unusual that, if the offender was engaging in the business of selling and maintaining access by others to an encrypted network, that he would not be advertising it, nor keeping any records of what would inevitably be a cash business.

15. The circumstances in which he came to possess the 32 BlackBerrys and his possession of them on 12 December 2014 is consistent with two possibilities: that is, his desire to provide them to either his drug suppliers or his purchasers, or alternatively to provide them to other individuals who he would anticipate were involved in organised crime. I note, of course, that he is not charged with any offence in relation to the possession or the importation of the BlackBerrys and that they are before the Court, in effect, for two reasons:

1. on the Crown basis, as an indicia of supply and,

2. on the defence basis, as an explanation for the cash deposits.

16. The offender was first spoken to by police at his mother's and stepfather's address in Mosman, on 12 December 2014. At that time, he had an Apple iPhone which he produced to the police, and located in his motor vehicle with the charging cable protruding from the dashboard was a BlackBerry of precisely the same model, style and colour as were each of the others contained in the box in his bedroom. There was one further BlackBerry which was located in the kitchen of the Tamarama premises, being apparently a discarded BlackBerry of the offender's, which he had thrown in the kitchen rubbish bin.

17. In the circumstances, it would appear that he was in the process of replacing an old BlackBerry with a new one and had yet to distribute or sell any of the additional BlackBerrys still retained in his bedroom.

18. Neither the search at Tamarama nor the search of the offender's motor vehicle resulted in the location of any other indicia of supply, such as scales, small bags or, indeed even any implement that might be used in the consumption of prohibited drugs.

19. The offender's explanation as to some of the funds being cash deposits as a result of payment by his stepfather for labouring shortly prior to his arrest was supported by evidence from his stepfather to that effect. In addition, there was some support for some of the repayments in amounts of $300 or multiples thereof, being payments for legitimate expenditure on behalf of friends from at least one of the Crown witnesses.

20. However, it is clear from the jury verdict that they rejected his explanation in relation to his possession of the MDMA. It is not necessary in relation to sentencing to form a positive conclusion that the offender's lifestyle was funded entirely by the sale of prohibited drugs. He is not charged with any past sale but only with supply on the basis of the deeming provision. It is, similarly, not necessary to determine whether the jury found that he had the 32 BlackBerry mobile phones for the purpose of creating a future covert communication network involving his suppliers or buyers.

21. On the facts before the jury, it would be impossible to conclude beyond reasonable doubt that all of the cash payments; all the multiples of $300 deposited into his account were in relation to the offender's participation in the drug trade. Similarly, that the 32 BlackBerry mobiles were for a similar purpose.

22. It is unnecessary in sentencing to reach a conclusion beyond reasonable doubt in relation to either of those matters, as the case law provides that an individual who is found guilty of supply on the basis alone of being in possession of a deemable quantity is to be treated on sentence as a supplier.

23. In this matter the quantity of 12.32 grams is more than 16 times the trafficable quantity, and almost 10 times the indictable quantity, although it is substantially less than the quantity which represents the next level of seriousness: that is a commercial quantity, which is 125 grams.

24. On the range covered between indictable and commercial, it is towards the bottom of the range, although as previously indicated the amount was capable of being processed into approximately 100 effective doses, whether that be by way of a capsule or consumption in solution.

25. There was one further matter that the Crown relied on in relation to proving that the offender was a supplier, which was a series of communications between himself and a female, Felicity Wright, on the evening preceding the search of his premises. There was no direct reference during the calls or text messages to any prohibited drug, but the offender arranged, when returning from the north side of Sydney Harbour, at Felicity Wright's request, to meet her late at night in order to supply something to her. The series of communications were remarkably consistent with coded arrangements to in fact supply a prohibited drug.

26. The offender's explanation for his conduct was that it was an arrangement whereby he was to provide Ms Wright with a sample pack of beverages so that she could pass on the sample pack to some bar or restaurant in the hope of her obtaining future commission from any sales of the product. There was nothing contained in the calls or the text messages which would clearly indicate that that was the purpose of the communications and the reason for them meeting that night.

27. I am of the view that the jury inevitably found, despite the offender's evidence and the production of a beverage sample pack, that the offender was being requested to supply a prohibited drug of some sort, and that that was why he later met with Ms Felicity Wright. However, in that regard, I note that there is no charge before the Court in relation to his supplying Felicity Wright with any substance. It is merely a surrounding relevant circumstance to the assessment of his possession of the 12.32 grams of MDMA and, accordingly, cannot be taken into account in relation to the sentence to be imposed.

Subjective Matters

28. The offender was born on 28 August 1984 and is now 32 years of age. He was 30 years of age at the time of the offending.

29. Before the Court are a number of materials:

• a report from Dr Jonathan Adams, dated 18 May 2017;

• a series of documents from the Future Academy in relation to the offender's having obtained an Advanced Diploma of Project Management and the courses studied to do so, the diploma having been obtained on 11 December 2015;

• a Diploma of Accounting, dated December 2008 from TAFE;

• a Diploma in Makeup (Fashion and Entertainment) from the Sydney College of Makeup Art, dated 22 December 2016;

• a certificate from the Melbourne Fashion Institute in relation to the offender having obtained a Diploma in Fashion Design from that institute on 3 December 2012;

• a Diploma from the Interior Design Academy, dated July 2008, as to his obtaining a Diploma of Professional Interior Design;

• a letter from Keira Anderson, being a business consultant, attesting to the offender's occupation as a contract makeup artist since January of 2017 with Redken, and her opinion of him, dated 18 May 2017;

• a reference from Nicholas Wilkins, the supervising post producer of a program for Channel Nine, attesting as to his work as a makeup artist in recent times;

• a letter from the offender's father, Brian Wood, dated 15 May 2017, indicating that he still holds his son in high regard and will continue to support him in the future, and indicating that the offender has expressed regret and remorse for his actions to his father;

• a letter from Michael Drury, being the offender's stepfather, dated 13 April 2017, and I note Mr Drury also gave evidence during the course of the trial as to his payment in cash for labour for renovating the house in recent times, and also gave evidence on sentence as to his current opinion of the offender, and expressing on behalf of the family that they would remain supportive of him.

30. The offender's mother did not give evidence on the sentence, but part of the Crown material provided, and part of the evidence otherwise, is that the offender's mother retired from a position as a senior solicitor with the New South Wales Office of the Director of Public Prosecutions. I note, of course, that it is well known in the community that Michael Drury was once an undercover drug officer working for the New South Wales Police Force, who was substantially injured many years ago in an attempt to prevent him from giving evidence against a Victorian criminal involved in the drug trade, and that for many years subsequently he continued to be employed by the New South Wales Police Force in senior positions, and for some time, with their ethics education area.

31. I note the explanation for the absence of Mrs Watson‑Wood as being that, in effect the offender has "broken her heart". I have absolutely no difficulty in understanding the significant level of distress that must have been caused to the offender's mother by the offender's commission of this offence, particularly in the circumstances where his criminal history indicates that in 2008, he committed an offence of supplying a prohibited drug, in respect of which, he was fortunate enough in March of 2009 at the Downing Centre Local Court to receive a s 10 bond of two years, subject to the guidance of a psychiatrist or psychologist and also conditional on his providing to the Court and to the psychiatrist monthly urinalysis for the period of the bond.

32. He was at the same time similarly dealt with for an offence of larceny - as I understand it from the facts, in relation to a mobile phone, being placed on a s 10 of two years but with no conditions being ascribed to it. I note that the offender successfully completed the bond and, as a result, does not have a recorded conviction for either of those offences. The offence of supply of a prohibited drug is, however, particularly relevant to the degree to which leniency might be shown to the offender in the circumstances of his further offending.

33. As part of the Crown bundle, the material that was before the Local Court in relation to the sentencing in 2009 has been re‑supplied. I note that it involved him being found at Kings Cross at 9.55pm after being observed to drop a pouch onto the road as police approached. Located in the pouch were 4 grams of cocaine, and the offender was found to be in possession of two mobile phones, one of which he claimed to have found two months before and to have subsequently used. It was the allegedly found mobile that was the subject of the larceny charge. Consequent on his having been arrested, he attended on Dr Anthony Milch, psychiatrist, to obtain assistance. I have read the whole of the report, but for present purposes, I simply refer to the final three sentences:

"… I do not find him to have related antisocial personality traits or disorder or other significant features of a psychiatric illness. I would regard his prognosis as good, however note that he has a longstanding history of substance misuse. It will require persistent motivation to manage his vulnerability to further substance misuse in the future."

34. As I previously indicated, he successfully managed to complete the two‑year bond, with monthly urinalysis showing negative results. The evidence before the Court is that, having successfully completed the bond, he returned to the use of prohibited drugs and ceased obtaining any further assistance from any psychologist or psychiatrist until such time as he was arrested in respect of this offence. The pre‑sentence report provided to the Local Court by Gloria Anfield, dated 5 November 2008, under “Attitude to the Offences” includes the following quote:

34. Overall, Mr Watson‑Wood was somewhat dismissive of his offending behaviour, although he eventually conceded that his actions are having serious consequences on his personal life, his relationship with his family and potentially on his freedom."

35. It would seem, in the light of this matter, that the offender continues to have a somewhat dismissive or blasé attitude to the consumption of prohibited drugs, which he appears to see as part of an ordinary lifestyle, in particular of persons involved in the hospitality industry. In addition to the matters that I have referred to, there is also a report from Melanie Khashadorian, a registered psychologist, as to his attendance for nine sessions between January and July of 2015. The reference from her, dated 11 April 2017, indicates that the purpose or main focus of their consultations was:

“…to manage his generalised anxiety and low mood. We directly worked on his skills of time management and motivation in regards to his career, his relationships - both socially and with his family - and having a better understanding of the things that impacted his mood. Daniel was productively engaged in therapy and reported making gains in several areas of his life while we worked together."

37. It does not appear from the report from Ms Khashadorian that there was any particular focus on the offender's difficulties in relation to the use of prohibited drugs. Her report indicates that their work ended suddenly, and it has been explained in evidence by the offender on sentence that that was because he was arrested shortly after the completion of the nine sessions and charged with a further criminal offence, and that is an offence that has not yet been resolved and, in itself, is irrelevant to these sentencing proceedings other than the fact that it explains the termination of his treatment by Ms Khashadorian.

38. However, the Court has been informed that, having spent a period of time in custody as a result of the further charge, he was released on bail, and at no time since that time has he sought any further assistance in relation to his consumption of prohibited drugs. His explanation for this was that having not been able to obtain drugs while in custody, he can see no need to obtain further assistance once released, which, in my opinion demonstrates considerable lack of insight into his difficulties.

39. The report from Dr Adams indicates that the offender has had problems with illicit substances from at least the age of 14, when he was using cannabis a couple of times per week. At the age of 15 or 16, he used LSD a couple of times, and he began using ecstasy on a couple of occasions per month until he was 17 years of age, when he decreased his frequency of use to a couple of times per year. He is said to have used amphetamines occasionally during his teenage years, but never since. He began using cocaine in his early 20's, usually once per week while socialising with acquaintances. He used magic mushrooms up to five times in total during his 20's, and he smoked ice in his early 20's, not more than five times, and he had not used any for over five years.

40. Dr Adam said he described a one year period during his early 20's of using gamma-hydroxybutyrate or GHB, usually once per week on a social basis, and that in his mid‑20's he began using MDMA with fluctuating use until he was approximately 27 years of age, when he reduced his use to approximately once per month. He claims not to have used any illicit substances since New Year's Eve, 2015. He has not completed any residential drug or alcohol rehabilitation, although on the material contained in the reports, alcohol has never been a significant problem, nor has he participated in any specific drug courses other than what assistance he received from Dr Milch.

41. The offender's parents separated when he was approximately 15 years of age, but he remained with his mother and sister, and maintained regular contact, on a weekly basis, with his father, with whom he still has a significant relationship. He reported to Dr Adams that his mother suffered from depression and anxiety, and is receiving psychiatric medication for those conditions.

42. It must have been clearly evident to the offender that his commission of the offence in 2008 must have had a substantial adverse impact on his mother, as well as his father and step‑father. It would be impossible in the circumstances of that offending for him not to have been at least the subject of a significant level of, for want of a better term, “lecturing” by his mother and in particular, his step‑father, as to the dangers of being involved, to any extent, with prohibited drugs.

43. The commission of this offence and the possession of cocaine indicates an ongoing blasé attitude to his own conduct, and to the effect that it might have on the whole of his family. There is no explanation contained in Dr Adams' report for the offender's behaviour, in any sense, that reduces his moral culpability. He is diagnosed as having a recurrent mild to moderate major depressive disorder with fluctuating anxiety. Of course, his longstanding use of illicit substances is likely to compound such problems. Dr Adams opined that it is likely that there is a relationship between Mr Watson‑Wood's recurrent low mood states, anxiety difficulties, fear of failure, maladaptive coping strategies and his use of illicit substances.

44. I accept that there is usually a relationship that might be referred to as a “vicious circle” involving those who use prohibited drugs finding themselves to be, as a result, depressed, anxious, and in recurrent low mood states, or unmotivated to get on with a useful life.

45. Between the material produced on sentence on his behalf and the material produced as part of the Crown bundle in relation to what was before the Local Court, it is evident that the offender has completed many educational courses over the years, although his employment appears to be of a somewhat desultory nature, mostly in relation to the hospitality industry, and only recently a more significant level of employment in relation to hair and make‑up for theatre or movie productions.

46. Again, it is employment of a relatively casual nature, the field being notoriously one in which it is difficult to obtain full‑time and ongoing work. It is, of course, to his credit that he has managed to obtain such work on a reasonably ongoing basis, and is well regarded by those for whom he has worked.

47. Dr Adams opined, "I understood no evidence of a link between symptoms of mental illness and the offending behaviour itself", and further that it is, "likely that Mr Watson-Wood's emotional state will deteriorate if he receives a custodial sentence."

48. I have no doubt that Mr Watson‑Wood was aware, subsequent to his being before the Court in 2009, that any further like offending would be likely to result in the imposition of a custodial sentence. Despite that realisation, he committed the offending now before the Court. In addition to the material that I have referred to, I have taken into account that he was very well regarded by those who provided references to the Local Court in 2009. In addition to all of that material there is a pre‑sentence report under the hand of Kay Mememios, a Community Corrections officer, dated 6 April 2017.

49. I note that he completed his school education at Year 10 and completed his Year 12 studies at TAFE. As previously referred to, he then continued to study a variety of courses in New South Wales and in Melbourne.

50. The material before the Court indicates that he once aspired to a significant career in sport, and was offered a lucrative contract in that regard, but was unable to pursue it because of his offending in 2008, which is of course another reason as to why the offender must have been aware of the significance of his offending on this occasion.

51. Under “Attitude to Offending” the following is contained:

“Mr Watson-Wood partly agreed with the New South Wales police facts, admitting to possessing the illicit substances, however, denied supplying drugs to others, indicating it was for personal use. The offender stated that he was having a house-warming and birthday party at the time and he purchased cocaine for personal use. In regard to the methylenedioxymethamphetamine, Mr Watson-Wood claimed he was also given this for personal use as it was of low quality. Mr Watson‑Wood further failed to take responsibility for his offending behaviour by indicating that he was the victim in this process, whereby he stated that his phone was tapped, and he believed that New South Wales police went to great lengths to target him.”

52. It is clear that the offender continues, despite the jury verdict, to maintain that he is innocent in respect of the offence. There is no evidence of remorse or contrition before the Court other than what is contained by way of references as to his expression of such to others. I have no doubt, considering the stress that he is aware that he has caused to his family, that he now regrets his conduct, but that is not the same as remorse or contrition, and the offender continues to deny the commission of the offence.

53. The Pre‑Sentence Report indicates that he sees himself as being a victim of the police force going about its ordinary job. He was indeed a target, because his phone was being intercepted. That interception was duly justified by what was located during the search of his premises.

54. I note that he claims since New Years Eve 2015 to have ceased the use of recreational drugs, but the Community Corrections Report indicates that they have been unable to verify his statement of current abstinence, nor have any urinalysis reports been provided for the period since he was arrested in relation to this offending to indicate objectively that he was not continuing to use prohibited drugs.

55. The pre‑sentence officer assessed him as being a low risk of reoffending, and I am prepared to accept that assessment, but it is clearly entirely dependent on the offender's ability to completely cease the use of prohibited drugs and to maintain that into the future. In my view, considering his past history, there is, however, a serious risk of the offender returning, if he has ceased the use of prohibited drugs, to the use of them in the future.

56. Such use frequently results in a need to participate in the supply of prohibited drugs in order to provide for one's own use.

57. I have been provided by the Crown with some statistics from the JIRS system and also with a small number of cases. As has frequently been noted by the Court of Criminal Appeal, the statistics may be of some general assistance but they are an extremely blunt resource. In my view, the statistics, as presented by the Crown, were even more limited than usual and, as indicated during the course of the sentence hearing, I have, in the interim, turned to the statistics as available online to give them more detailed consideration, while continuing to acknowledge that they are a very blunt tool.

58. For the purposes of sentencing, the Court must have regard to the purposes of sentencing as set out in s 3A of the Crimes Act as well as taking into account such of the aggravating or mitigating factors contained in s 21A(2) and (3) as are present. In sentencing an offender, the sentence must reflect the objective seriousness of the offence as well as the need for both general deterrence and specific deterrence, as well as the fundamental purpose of punishment: the protection of society.

59. In relation to this offender, I acknowledge that specific deterrence is particularly important in the light of his previous record and use of prohibited drugs. General deterrence is always a significant factor in relation to drug supply offences because of the harm the provision of prohibited drugs does cause to the community, and not simply to those who participate in their use.

60. In the circumstances, I am satisfied that pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The submissions of Mr Little, counsel for the offender, on sentence have been to the effect that the Court would be able to impose, appropriately, a sentence of two years or less which would then place the offender in the position of the matter being dealt with by way of one of the alternatives to full‑time imprisonment, such as, a suspension pursuant to s 12 or a deferral pursuant to s 11 for further assessment, or an Intensive Correction Order.

61. However, I am not of the view that a sentence of less than two years' imprisonment would in any way reflect the objective seriousness of this offence, even though I find that the objective seriousness of the offence is towards the lower end of the scale. I again repeat, I am sentencing the offender for the single offence of supply 12.32 grams of MDMA, and I am not sentencing him in respect of any potential previous supply as might be inferred from his income and lifestyle or, as might be inferred from his communications with Ms Felicity Wright. Nor am I sentencing him for any offence in relation to the possession of encrypted BlackBerry mobile phones whose only practical use would be by persons involved in criminal conduct who wish to evade scrutiny by the authorities.

62. Should he in the future be able to cease the use of prohibited drugs and accept appropriate assistance, I have no doubt that his family will continue to give him a high level of ongoing support, on which basis it would be appropriate to then opine that there is a low risk of reoffending and, at least, a reasonable prospect of rehabilitation, but at the age of 32, the offender now needs, to quote his stepfather, to "wake up to himself." If he does not do so, it is inevitable, in my view, that he will end up back before the courts again; noting that while he professes to have severed relationships with his friends who are disposed to being involved in the use of prohibited drugs, his evidence on sentence was not convincing in that regard, and that I accept the Crown's submission that between the various reports, his evidence in the trial and his evidence on sentence, the offender appears to be a person who will modify what he says to fit the occasion.

63. Mr Watson‑Wood, you are convicted in respect of the offence of supplying the prohibited drug MDMA, and also in relation to each of the two charges of possessing a prohibited drug, in each case being cocaine. In respect of each of the two offences of possessing cocaine, you are sentenced to a term of imprisonment of three months to commence today and to be concurrent. In respect of the offence of supply, contrary to s 25(1), you are sentenced to a non-parole period of 15 months commencing today. I order that you be released on parole on 21 August 2018. The balance of term will be 15 months.

64. I have found special circumstances warranting a reduction in the non‑parole period to allow for a more significant period of supervision on parole in order to assist you in coping with the need to cease using prohibited drugs. Accordingly, the total sentence is one of 30 months commencing today. I have no doubt, since you have spent some time in custody and because of who your mother and stepfather are, that you fully understand that when released on parole, if you commit any further offence while on parole, you will inevitably find yourself serving the balance of that term as well as potentially any sentence for any further offence. Now, is there any matter I omitted of significance?

JORDAN: Not in relation to the sentence, your Honour, but in relation to the application.

HIS HONOUR: You want the order?

JORDAN: Yes, please, your Honour.

65. An application has been made for an order that, pursuant to s 35 of the Drugs Misuse and Trafficking Act 1985, the contents of Exhibit 6 in these proceedings, being a box containing 32 BlackBerry model 9720 mobile telephone handsets, be forfeited to her Majesty and then provided to the Commissioner of Police and I make such order noting that the order was conceded on behalf of the offender as being appropriate by Mr Little of counsel.

JORDAN: And a drug destruction order, please, your Honour.

66. I make a drug destruction order in relation to the MDMA and also the cocaine. One last thing. In the light of Dr Adams' opinion that it is likely that Mr Watson‑Woods' emotional state will deteriorate if he receives a custodial sentence, I will provide a copy of Mr Adams' psychiatric report to be taken with him into custody by the Corrective Services officers for transmission to the prison authorities.

Amendments

23 February 2018 - Street address removed.

Decision last updated: 23 February 2018