R v Weaver

[2004] NSWSC 727

CITATION:	R v Weaver [2004] NSWSC 727
HEARING DATE(S):	23/07/2004
JUDGMENT DATE:	23 July 2004
JUDGMENT OF:	Howie J at 1
DECISION:	In respect of the matter pursuant to s 166 of the Criminal Procedure Act 1986 the offender is sentenced to a fixed term of 6 months imprisonment to commence on 30 July 2004 and to expire on 29 January 2005 to be served by way of periodic detention. He is to report to the Tomago PDC on 30 July 2004. In respect of the matter in the indictment the offender is sentenced to imprisonment for 2 years to commence on 30 January 2005 and to expire on 20 January 2007 the date he is to be released to parole. This sentence is to be served by way of periodic detention and is to be cumulative to the sentence imposed on the s 166 matter. The items in Exhibit Book page C784419 are to be forfeited to the State and they are to be donated to Campden High School to be used for educational purposes within the agriculture department.
CATCHWORDS:	Criminal Law - sentence for conviction of knowingly take part in the supply of a prohibited drug, being methylamphetamine, which was not less than the commercial quantity for that drug and a charge of growing cannabis plants under s 166 of the Criminal Procedure Act.
LEGISLATION CITED:	Criminal Procedure Act 1986 - s 166 Drug Misuse and Trafficking Act 1985 - s 35
CASES CITED:	R v Zdravkovic [2004] NSWSC 431
PARTIES :	Regina v Geoffrey Wayne Weaver
FILE NUMBER(S):	SC 70007/03
COUNSEL:	R. Herps - Crown P. Doyle - Offender
SOLICITORS:	S. Kavanagh - Crown Nicolas Moir & Associates - Offender

I N THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 23 JULY 2004

070007/03 REGINA v GEOFFREY WAYNE WEAVER

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Geoffrey Wayne Weaver, was convicted by a jury of an offence of knowingly take part in the supply of a prohibited drug, being methylamphetamine, which was of a quantity not less than the commercial quantity for that drug.

2 The offence was committed on 26 May 2001. That is an offence which carries a maximum penalty of twenty years’ imprisonment. It is an offence of such seriousness that a person who is convicted of it would almost certainly expect to be sent to imprisonment for a lengthy period of full time custody. The community would expect that to be the sentence for a person who was significantly involved in the supply of a drug of that quantity, regardless of that offender’s personal circumstances.

3 The facts are unusual. They are not exceptional because they are somewhat similar to another offender whom I have previously sentenced, that offender having pleaded guilty to two offences of that nature. Although they are not exceptional and also could not be described as singular, they are very unusual.

4 The offender became involved with a man named Walsh, whom the offender had known for some years from the time at which they played football together. The acquaintance was renewed sometime later when the offender joined a bikie group called the Nomads in the Newcastle area. At the relevant time, that is May 2001, Walsh was the sergeant at arms in that organisation and the offender was a member without rank. Further, the offender at times worked for Walsh in his excavating business.

5 Walsh was, at this period, a major supplier of amphetamine in the Newcastle area, both through the Nomads bike club and outside that club with the assistance of his wife, Melinda Love. Walsh has pleaded guilty to a number of offences. He has not yet been sentenced by me and I have not heard the full facts and circumstances of the offences for which I will ultimately sentence him. Therefore I am somewhat guarded in what I can say about Walsh and his activities at this time.

6 However, it is clear that Walsh’s activities as a drug supplier resulted in persons with whom he otherwise associated becoming tainted (if I can use that word) by the criminality of Walsh. I have sentenced two persons already who, in my view, ended up as persons with criminal convictions purely because of their association with Walsh or Melinda Love. I believe the same can be said of the offender before the court.

7 Briefly the circumstances giving rise to the offence are as follows. Walsh had been involved in the distribution of drug, receiving his pure amphetamine from various sources but, at the time of the offence committed by the offender, from a man in Queensland who was also involved in a chapter of a bikie club in northern New South Wales. This man was called Todd Little. Shortly before the offence was committed by the offender the courier who was normally used to bring pure amphetamine from Little down to Newcastle to be supplied by Walsh met his death in a motor vehicle accident. This required Walsh to find some other means of obtaining his amphetamine for his supply business. The course he decided to follow was for he himself to travel to Little’s premises in northern New South Wales to obtain about a pound of amphetamine, that drug being substantially pure, and to return with it to Newcastle where it was broken up by Ms Love for distribution by both her and Walsh.

8 The first trip undertaken by Walsh to obtain the drug himself from Little occurred on 26 May 2001 and is the trip in which the offender was involved and from which his criminal offence arises. Melinda Love gave evidence before the jury that on a particular occasion before 26 May that after the death of the courier about a week or two earlier there was a conversation between Walsh, the offender and herself in the premises of Walsh and Love in which Walsh indicated that he would be taking the trip to Todd Little’s place in order to obtain the drug for him to supply in Newcastle. According to Ms Love Walsh asked the offender if he was prepared to undertake the trip with him and the offender agreed.

9 It seems, however, that there was a slight change of plans after that conversation because Walsh intended to make the run on 26 May with Melinda Love and, as I understand it, in those circumstances the offender would not have gone with them. However, on the day before they were to leave Melinda Love was unwell and indicated that she was not prepared to accompany Walsh. The result was that in the late hours of the 25th or the early hours of 26 May there was a phone call made by Walsh to the offender, asking him if he was prepared to go on the run with Walsh. The offender indicated that he would if Walsh was going by himself. He asked Walsh what vehicle he was using and was told it was a Commodore. It was in fact a rented motor vehicle and it was a course that was generally adopted by Walsh to make the run to Todd Little’s premises in a rented vehicle, leaving in the early hours of the morning, travelling the six or so hours to Little’s premises, obtaining the drugs after a stay at that premises of half an hour or so and then to return and make the long trip back to Newcastle again.

10 It was Walsh’s practice after 26 May to always have somebody accompany him. This was either so that that person could relieve Walsh of some of the tedium at times of driving or simply to assure that he did not fall asleep, to give him a cigarette if he wanted one and to assist him in other ways to make the trip less burdensome. There was some suggestion as well that at least so far as Walsh was concerned, the taking of another person with him was in order to give rise to some uncertainty by the police as to who was in possession of the drug if they were stopped on the way back from Little’s premises.

11 In any event, on this first trip Walsh decided that he wished to have someone go with him and in the absence of his wife, called upon the offender. The offender agreed to go and travelled with Walsh to the premises of Todd Little where Walsh obtained the drug, secreted it in the rented motor vehicle and they travelled back to Newcastle again.

12 There is no suggestion whatsoever that the offender was part of the organisation operated by Walsh and Love in the supply of drugs either before that date or afterwards. There was no suggestion that the offender was to receive any benefit in monetary or other terms by accompanying Walsh on the trip, other than perhaps to obtain amphetamine once the drug had been returned to Newcastle and prepared for distribution by Melinda Love.

13 It seems to me reasonably clear that the offender involved himself in this enterprise because of his relationship with Walsh, both through their club membership and their friendship and their relationship in employment but also, I am satisfied, because the offender was a user of amphetamine who received his supplies from Walsh.

14 The offender gave evidence before the jury. His evidence was to the effect that he had never used amphetamine other than on an occasion some years before the incident from which the charge arises and then only to taste the drug and found it to be not to his liking. His evidence was that his drug of choice was cannabis and in fact on his arrest and search of his premises police found a number of cannabis plants growing in a hydroponic set-up and there is a back-up charge to be dealt with by me when sentencing him in respect of this particular offence in relation to those cannabis plants. That charge comes before me under s 166 of the Criminal Procedure Act.

15 Despite the offender’s vehement denials of any involvement with amphetamine and despite the fact that in evidence today he reiterated that he did not use amphetamine I am satisfied, even if need be to the standard of beyond reasonable doubt, that he was at the relevant time a user of amphetamine and that he did obtain his drug from Mr Walsh. There is a conversation in heated terms between the offender and Walsh on the telephone which was recorded by the police which, in my view, refers to the supply of amphetamine to the offender and I believe there is other evidence which indicates that, notwithstanding his denials, he was at the relevant time a user of amphetamine.

16 The jury clearly did not believe the substance of the offender’s evidence in explanation for why he took this trip with Mr Walsh and I must say it is not surprising that they came to that view. With respect to the offender, his account of the circumstances in which he went for that trip and the reason he went for it are completely unconvincing.

17 In any event, the situation is that he is now to be sentenced for his participation in this enterprise. Whether he was a user of amphetamine or not is merely a matter of circumstance which may explain why he would undertake such a risky venture and may add to the reasons why he accompanied Walsh on this particular trip.

18 It seems to me that his criminality is very much at the lower end of the scale of offences of this nature notwithstanding the substantial amount of the drug that was to be obtained or was obtained by Walsh on this particular trip. There is no evidence that the offender knew how much drug was being obtained by Walsh but it is or would have been fairly obvious that it was going to be a very significant amount worth the trip up and back from Todd Little’s premises and in any event I am sure that the persons who obtained drugs from Walsh or Love knew how the system worked and that every week or so Walsh would have his supply of drugs renewed, originally by a courier and then ultimately by Walsh himself obtaining them.

19 The offence was, to some degree, premeditated but it seems to me that although the offender had indicated his willingness to do so, his particular involvement in this matter arose really as a matter of circumstance when Ms Love was unable to travel with Walsh and Walsh called upon him at a time shortly before they were about to leave to travel to northern New South Wales.

20 The offender was born on 9 November 1965. He is generally in employment and has been employed since his arrest in respect of this matter over two years ago. He has been in a steady, loving and supportive relationship with his de facto wife for the last eight years. They have three children who are presently aged eight years, five years and a baby of six months. His de facto has been under a depressive illness probably before the last child was born but certainly since the birth of that child and has been treated by a local general practitioner with anti-depressant medication. The doctor, in a report which is before me, indicates that from his point of view she is benefiting from the use of those drugs, even though it has been a relatively short period of time.

21 There are before me two references from employers and I have no doubt at all that the offender is and certainly has been since his arrest a worthwhile member of the community who is an honest, enthusiastic and diligent worker. He has had some difficulty in his employment because of the situation in which he was facing these criminal charges and I can well understand why it was that he did not wish these matters to be known. He has not worked for the last month because he formed the realistic view that as a result of his conviction of this matter by the jury he would be required to serve a gaol sentence. It seems to me to be a significant part of his character that he has spent the last month with his wife and children ensuring, as best he can, that his period of custody will not too greatly affect those who he leaves on the outside.

22 He has an offer of employment on his release or immediately if he were not incarcerated and notwithstanding his untruthfulness to the jury and notwithstanding my view of his involvement with drugs, I was somewhat impressed by him in relation to his demeanour and his manner during the proceedings and in giving evidence before me.

23 The question arises as to what sentence to impose upon him, firstly, of course, as retribution for his criminal activity in what was a serious enterprise, although his part in it was a very minor one and, perhaps more significantly, by way of general deterrence.

24 He has little criminal record. My view is that, as I have already indicated, apart from his drug usage he would avoid criminal activity had it not been for his involvement with Walsh. I have little doubt that Walsh is a strong personality and, as I have said, I have seen two other persons who I think are probably somewhat weaker in personality than this offender who have been corrupted (if I can use that term) by Walsh and his activity. One of them unfortunately was a young man of impeccable character and considerable ability as a spray painter who had to serve a period of five months in custody, notwithstanding his wife and children and his otherwise good character simply because of the criminal offences he committed by reason of his association with Walsh and Love.

25 The cases in the Court of Criminal Appeal are replete with statements of principle in respect of the sentencing of persons who are significantly involved in the supply of drugs, whether that supply be by way of supporting a personal habit or as a result of some other reason, not necessarily one of financial gain for the person involved. It has been held repeatedly that even persons of prior good character who play a significant part in the distribution of drugs should be sentenced to full time imprisonment and I say full time imprisonment because there are cases I have indicated that normally a sentence by way of periodic detention is not sufficient to mark both the retribution necessary and particularly the general deterrence for persons who involve themselves in serious drug trafficking in this State.

26 The Crown has supplied me with a number of cases and statistics indicating the range of sentences for persons convicted or pleading guilty to offences of this nature. With respect - and I do not believe the Crown would seek to argue otherwise - they offer little assistance because of the unusual factual circumstance in this particular matter. Were it the case that the offender had been involved in this enterprise as a member of the distribution organisation even to a very small degree, a significant gaol sentence would have been imposed upon him and there would have been no possibility of him avoiding a gaol sentence of a number of years even in the non-parole period. Even had it been the case that although not involved in a permanent or temporary way in the organisation, he involved himself in this particular matter for personal gain, again a sentence of years, so far as the non-parole period was concerned, would have been inevitable.

27 A question arises, however, whether such is the case in these circumstances where his role is a minor one, indeed where I cannot say that it was essential because although Walsh would not have gone on the trip by himself, there were a number of people who Walsh could have called upon to assist him and would have done so and again I have seen examples of that in cases before me.

28 In determining what to do in this matter, in fact in the course of addresses to me by both the Crown and Mr Doyle for the offender, my sentence remarks in R v Zdravkovic [2004] NSWSC 431 on 14 May have been referred to. The Crown has submitted that as a matter of parity a full time custodial sentence ought to be imposed upon the offender because, in effect, the offender in that case spent five months in custody in respect of his involvement in the enterprise of Mr Walsh, although ultimately he was sentenced to a period of periodic detention. I indicated in those remarks that I was taking that course, which would have been an unusual one, not only because of the very minor role played by that offender in Walsh’s activities but also because of the way in which his matters had been dealt with before the courts and the fact that he had received a sentence by way of periodic detention for offences which seemed to me to involve more criminality than those that were before me.

29 To his credit counsel for the offender accepted, as the offender had prior to today, that a full time custodial sentence would be imposed on him. That was the Crown’s initial attitude and is ultimately the attitude the Crown has taken, both because of parity with Zdravkovic but also in order to give the full effect of general deterrence.

30 The matter that troubles me and led to me raising this question of whether periodic detention would be sufficient to mark both the criminality of the offender and the purposes of general deterrence are not only the minor role played by him and the fact that he became involved in the offence really because of his involvement with Walsh and Love but also because the offence was committed in May 2001 and we are now about to impose sentence upon him in July 2004. It is unsatisfactory that a sentence should be so far delayed after the commission of the offence. It is, to a significant degree, unfair upon an offender to be subject to bail conditions and to the uncertainty of criminal charges hanging over his head for such a lengthy period of time. To his credit, the offender seems to have been able to put it to one side and get on with his life, tend to his family, his de facto and be what I believe he is, a generally upstanding member of the community.

31 Very often delay which is caused by the fact that an offender has pleaded not guilty and is therefore requiring the State to put him to trial is not a very significant matter. Many times delay assists an accused person and it has not been unknown for accused persons to try to delay the ultimate day upon which judgment is passed upon him or her. That is not this case and the delay is so extensive for reasons really unassociated with the offender himself.

32 The history of this matter briefly is that there were a large number of persons arrested at the time and as a result of the activities in which the offender was involved. I do not know the exact number but I understand it is about twenty. A number of those persons have been dealt with in the District Court. Eight of them were sent to this court for trial, an unusual circumstance in itself. That was because the Crown quite properly sought to have a joint trial of Walsh, Little and persons associated with them and their particular activities. No doubt the offender fell into that category because of this particular offence with which he has been convicted but also for another offence relating to another trip he made with Walsh in respect of which he was acquitted.

33 As it happened, the joint trial did not occur and the individual matters were reached at the discretion of the Crown before me and the jury and the offender was, in effect, now the last of them. I have now only to deal with Walsh and Little on their pleas of guilty when they are ultimately ready to proceed. Therefore, in my view the delay is much more extensive than could have been expected in the normal course of events and is longer than is really appropriate although, as I have indicated, I make no criticism of the Crown or anybody else for the situation resulting as it has.

34 The offender has a young child, in particular aged six months. His wife is having medical or psychological difficulties but they would not be sufficient to justify a sentence other than was appropriate for the offence. They are not exceptional in any shape or form. The offender also has to be sentenced for the related summary offence, although that is not a matter that is really as serious as the one for which he is to be sentenced after trial. It seems to me that taking all matters into account the appropriate sentence is one of two and a half years imprisonment.

35 The question arises as to whether there are special circumstances in this matter. This is a somewhat vexed issue and the court has, in general waxed and waned about what are and what are not special circumstances. One can probably find a precedent for anything in the decisions of the Court of Criminal Appeal, either in two judge or three judge benches. The recent decision on the matter is the case of R v Fidow [2004] NSWCCA 172 in which the Chief Justice pointed out that notwithstanding the legislature’s requirement that special circumstances be found before the statutory regime be departed from, something in the order of 87 per cent of the prisoners in this State have had the finding made of special circumstances and of those, the vast majority are serving less than 60 per cent of the head sentence by way of a non-parole period. This, it seems to me, indicates that the courts have fallen into a pattern of not treating sufficiently seriously the legislature’s requirement that circumstances be special before there is a departure from the statutory regime.

36 I have been somewhat troubled by the matter. I understand the Crown’s submission that a full time custodial sentence is required as a matter of general deterrence. On the other hand, as I have indicated, I am concerned by the delay in the matter coming to final disposition. I think that there are special circumstances by reason of that delay, the fact that the accused has, notwithstanding that delay, re-established his life away from the influences of Walsh and Love and, I am prepared to accept, the influences of the use of amphetamine that became such a part of the persons who dealt with Walsh and were in the motor bike club. I think it is a matter for finding special circumstances that he has, since his arrest in this matter, had a young child who is now only six months of age and that he has sought to continue to live in his relationship, notwithstanding these matters hanging over his head.

37 In my view the appropriate non-parole period is one of eighteen months.

The question then arises as to whether I can impose a sentence to be served by way of periodic detention. To some degree I must be careful not to double count by finding special circumstances in relation to the non-parole period and then using those circumstances again to find that the sentence can be served by way of periodic detention. I am conscious of the sentence I imposed upon Mr Zdravkovic but I do not believe that parity requires me to impose a more heavier sentence than I believe is otherwise appropriate for this particular offender for this particular offence.

38 In all the circumstances of this particular matter and not without a degree of doubt about it, I am satisfied that a sentence served by way of periodic detention will adequately punish him for his involvement in this particular matter. Given the way, the circumstances in which it arose and particularly in the fact that it arose, very shortly before he departed with Mr Walsh, from a phone call made by Walsh to him and arising in a circumstance where otherwise he was not going to go with Walsh.

39 I also believe that it is a sufficient sentence by way of general deterrence, notwithstanding the significance of the supply in which he was involved because his part in it was so minor and I do not believe that I can say that he had a significant role to play in the distribution of cocaine by Walsh.

40 I also think that one should not lose sight of the burden imposed upon a man who has a wife and young children and who is working steadily five days a week, as I believe this offender would, to serve a period by way of periodic detention of eighteen months before eligible to be released to parole.

41 As I say, I have thought about it and found it a difficult matter but in the end I believe it is a sentence that is appropriate in relation to his particular criminality in this offence. Therefore I impose a sentence of two and a half years with a non-parole period of eighteen months. The sentence is to commence from Friday 30 July. On that day the offender is to report to the Tomago Periodic Detention Centre. The non-parole period will expire on 29 January 2006, the date upon which the offender is to be released to parole. It is a condition of his parole that he place himself under the supervision of the Probation and Parole Service for such period as the Service think appropriate and in particular, to submit himself to any testing for the use of illegal drugs and, if necessary, for drug counselling.

42 Mr Weaver, some might think that that is too lenient. I don’t know. It is a matter for the Crown. The Crown has indicated that the Crown expected or required that you receive a full time custodial sentence and I understand you were led to believe that that was probably what was going to be imposed upon you. I might be wrong.

43 I have taken the course I have taken, to some extent, because of what you have done since this matter. You should understand any involvement with drugs of any sort, be it cannabis or anything else, during the course of your sentence to periodic detention will result in that order being revoked and you will make yourself liable for full time custody. Do you understand?

PRISONER: Yes sir.

44 HIS HONOUR: In imposing that sentence I have taken into account the matter under s 166 of the Criminal Procedure Act. I have to impose a sentence - actually, no, that’s quite right. In fact I am going to change the sentence. I am going to sentence you to six months’ imprisonment in respect of that matter, that sentence to be served by way of periodic detention. That sentence is to commence from next Friday and the sentence in respect of the other matter is to be cumulative, so it means it is a total sentence of three years with a non-parole period of two years. It is a completely separate and distinct offence. It is growing plants hydroponically.

45 Pursuant to s 35 of the Drug Misuse and Trafficking Act 1985 the items in the attached Exhibit Book page C784419 described as one Maxijet pump and hoses, 2 Arlec times and 2 HPS4cc transformers be forfeited to the State. Pursuant to s 35 I direct that the items, the subject of that order, be disposed of by being donated to Camden High School to be used for educational purposes within the Agriculture Department.

46 I will have to indicate the date upon which the second sentence commences and the date upon which he will be now eligible to parole. Let me go through those dates because I did forget about the drug matter. The six months commences next Friday 30 July. That sentence is a fixed term and is to expire on 29 January 2005. That sentence is to be served by way of periodic detention.

47 In respect of the matter on the indictment, he is sentenced to imprisonment for two years. That sentence is to commence on 30 January 2005 and to expire on 29 January 2007. There is to be a non-parole period of eighteen months to commence on 30 January 2005 and to expire on 29 July 2006, on which day the offender is to be released to parole and I make the same parole orders I have already made.

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TUESDAY 17 AUGUST 2004

HIS HONOUR: In accordance with s 51 (1A and 1B) of the Criminal Legislation Amendment Act 2001 the Probation and Parole supervision imposed as a condition of the parole order made in relation to the sentence of periodic detention is to be deleted.

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Last Modified: 09/02/2004