R v Wilcox

[2019] NSWDC 900

District Court

New South Wales

Medium Neutral Citation:	R v Wilcox [2019] NSWDC 900
Hearing dates:	29 November 2019
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	The offender is convicted Make a finding of special circumstances. The offender is sentenced to an aggregate term of imprisonment for a period of 6 years with non-parole period of 4 years. Confiscation order is made Order that drugs destroyed.
Catchwords:	CRIMINAL – Sentence – Knowingly deal with proceeds of crime –Supply prohibited drug greater than large commercial quantity – Supply prohibited drug greater than indictable quantity and less than commercial - Indicia of drug supply - Assistance – Prospects of rehabilitation
Legislation Cited:	Crimes Act, 1900. Crimes (Sentencing Procedure) Act,1999 Confiscation of Proceeds of Crime Act, 1989 Drug (Misuse and Trafficking) Act, 1985
Cases Cited:	Al Brahimi v R (2019) NSWCCA 273 Bugmy v The Queen [2013] HCA37; (2013) 249 CLR 571 Lopantinski v R (2017) NSWCCA 227
Category:	Sentence
Parties:	The Crown Mitchell Wilcox
Representation:	Mr S Apps (Cl) Mr Behan   Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2018/315666

Judgment

1. HIS HONOUR: Mitchell Paul Wilcox is before the Court for sentence for three discrete offences. Sequence 1 is a knowingly deal with the proceeds of crime in an amount of $790 in breach of s 193B (2) of the Crimes Act, 1900. The maximum penalty for that matter is fifteen years imprisonment and no standard non-parole period has application. Sequence 2 is the most serious matter which is the supply prohibited drug being greater than the large commercial quantity being 1096.9 grams of methylamphetamine and just over twice the large commercial quantity in breach of s 25 (2) of the Drug (Misuse and Trafficking) Act, 1985. That matter has a maximum penalty of life imprisonment and a standard non-parole period of fifteen years has application. The third count is a supply prohibited drug being greater than the indictable quantity and less than the commercial quantity of methylamphetamine being 74.7 grams in breach of s 25 (1) of the Drug (Misuse and Trafficking) Act. That matter has a maximum penalty of fifteen years imprisonment.

2. I will have regard to the maximum penalties and where relevant the standard non-parole period as bench marks or guideposts in the way that is contemplated by the authorities. I will have regard to all the purposes of sentencing for the purposes of s 3A of the Crimes (Sentencing Procedure) Act, 1999 noting that in relation to these matters, general deterrence and specific deterrence have greater weight given the gravamen of the most serious offence. It is common ground between the parties that Mr Wilcox has been in custody continuously in relation to these matters since his arrest on 15 October 2018 and that any sentence imposed today ought be backdated to that date. It is also common ground between the parties that the s 5 threshold has been crossed and Mr Behan in his careful submissions concedes that it will be inevitable that Mr Wilcox will serve a reasonable time of imprisonment in relation to these matters. It is also common ground between the parties that Mr Wilcox pleaded guilty in the Local Court and that he is entitled to a twenty-five per cent utilitarian discount. In relation to the knowingly deal with the proceeds of crime matter, I am invited by the parties and have made an order pursuant to s 18 (1) of the Confiscation of Proceeds of Crime Act, 1989 forfeiting the amount of $790 found in Mr Wilcox’s possession at Chinderah on 15 October 2018 be forfeited to the State. I have taken into account Mr Wilcox’s cooperation and willingness to assist the authorities in making a consent order when I come to fix an indicative sentence for that particular matter.

3. The facts are agreed between the parties and form part of the Crown bundle on sentence. In short, police at about 11 o’clock at night on 15 October 2018 saw a utility parked in a disabled parking bay at a service centre in Chinderah. Police made enquiries to locate the driver and the offender was asked why he was parked there without a relevant permit and he indicated to police that he needed to use the toilet urgently. In due course the offender was asked for some identification. In due course, checks were made and that gave police concerns about what might be held within the offender’s vehicle and the police told Mr Wilcox that they planned on searching the vehicle. He was cautioned and was subject to a search of his person that located a mobile phone and a set of keys, one of which was the key to the subject vehicle. He was asked if there were any drugs or other paraphernalia within the vehicle and he immediately made an admission that there were drugs inside his backpack which was contained within the vehicle. In due course there was a search of the vehicle which was recorded on body worn camera. Before they search the backpack police located $790 cash in the middle console, that is, the money that relates to sequence 1. The backpack referred to by the offender was removed from the vehicle by police and placed on the bonnet. The offender made admissions that the backpack and all of its contents belonged to him. The backpack was opened in his presence, police found a glass pipe containing drug residue. The offender made admissions to owning the pipe and retaining it for ongoing personal use. After a continued search, police located a large number of small plastic resealable bags, a set of digital scales and a resealable plastic bag containing 90.8 grams of methylamphetamine being the gross weight. In relation to the material the offender admitted that it was ice and indicated that it was his. Broadly, they are the facts that relate to the supply charge of sequence 3.

4. Also located during the search of the vehicle was the offender’s passport, his Queensland driver’s licence together with a boarding pass from a flight from Los Angeles to Australia. In due course police located a package with FedEx logos on the external part of that parcel. It was addressed to Danielle Watford at a nominated address in Queensland. The offender was questioned about his knowledge of the parcel and he admitted that it was his and it was sent from his mother in America and mailed to his girlfriend’s work address, Danielle Watford being his partner. Police opened the sealed package and saw two leather clad photo albums. They were in due course suspicious about the weight of those photo albums.

5. The vehicle was locked and the offender was conveyed to Tweed Heads Police Station and taken into custody. Police then returned to the vehicle to resume the search of it. On examining the photographs that were within the FedEx parcel, it was observed that the photo albums were bulging slightly and seemed to be devoid of photographs. The albums were seized along with the packaging back at Tweed Heads Police Station. The album covers were carefully opened exposing and inner cardboard carcass. Within the linings police discovered four vacuum sealed plastic bags containing methylamphetamine. The four bags were weighed and the combined weight was recorded as 777.1 grams gross.

6. The offender was offered and accepted an opportunity to be electronically recorded in relation to the matters. During the interview he indicated he purchased around three-and-a-half ounces of methylamphetamine. He stated that he paid somewhere around $6,000. He declined to tell police where he sourced this. He also admitted to police that he had recently returned from a five day trip to California in the United States for the purpose of attending a family friend’s funeral. The offender declined to answer further questions about the packages but acknowledged that the package was addressed to his partner, Danielle Watford. In due course, Queensland police made some further enquiries and seized some closed circuit television footage from Ms Watford’s employer’s premises. The FedEx paperwork disclosed that the package had been shipped from California, addressed to Ms Watford on 9 October 2018, it seems to have arrived in Australia on 13 October 2018. Police enquiries indicated in terms of the offender’s movements that he left Brisbane for the United States on 6 October 2018 and returned on 12 October 2018. There are some other trips recorded. I am told that the offender is facing prosecution in Queensland for other matters relating to that trip and some earlier trips that he had taken in July, August and September 2018. Apart from indicating perhaps a greater degree of involvement and planning in relation to the principal offence here and indicating that the offending for which I am dealing with him is not an isolated incident, I do not pay further regard to that material on the basis that Mr Wilcox ought not be punished twice in relation to the same actions.

7. In due course there was a more thorough search of the vehicle and a third photo album was found in the foot well area of the vehicle. In due course deconstruction of that photograph album disclosed two vacuum sealed bags that respectively contained 222.5 grams and 225.3 grams gross of methylamphetamine. The net weight of the six vacuum sealed bags found across the three photograph albums was 1,096.9 grams which is the weight of drug averred in sequence 2 and as I said, it is just over twice the large commercial quantity. Various of the bags were tested as to purity; two of the bags were tested at seventy-seven per cent pure and the other two in a range between seventy-eight and seventy-seven point five per cent purity.

8. In dealing with the matters, I take into account in the principal matter that the weight of the drug was just over twice the large commercial quantity. That is not an insignificant circumstance but on many occasions in dealing with this particular class of offence as can be seen by a survey of the relevant cases in the intermediate Courts of Appeal, the weights can be significantly larger in terms of multiples of the large commercial quantity. I take into account that there was some degree of planning and a little more planning and more detail involved than would be normal as part of one of these matters. I take into account that although there was some indicia of actual supply in relation to the third sequence, that there is no other detailed material suggesting sophisticated on selling. Mr Wilcox was in physical proximity to the drug which generally represents somebody who is lower in the hierarchy than somebody who has the status of a principal. That is because those in physical proximity to the drug, although having some degree of trust, are also exposed to the greatest level of risk, as was made out in this particular case where it is pretty easy for Mr Wilcox to come to attention, notwithstanding the preplanning that I have referred to, it was a relatively unsophisticated matter. In terms of assaying the objective seriousness of the matters, there are no aggravating circumstance in terms of breach of conditional liberty or the like. I am unable to treat the matters as being mitigated by them being unplanned but the level of planning is not so sophisticated as to serve to aggravate. The matters are mitigated by a plea of guilty and that they are committed by somebody with a relatively limited criminal history. I take into account that the offender made immediate admissions when first spoken to by the police directing them at least to the smaller amount of drug in the backpack. He must have known by making admissions about that material that his vehicle would be subject to a greater search. I take into account the admissions that he made when he was interviewed by police about the larger quantities of drugs.

9. In terms of the knowingly deal in the proceeds of crime, the amount of money, $790 is negligible compared with the hundreds of thousands and sometimes, millions of dollars that the Court sometimes deals with on this class of offence; that matter falls towards the lowest end of the range of objective seriousness.

10. In relation to the supply prohibited drug at sequence 2 which is the greater than the large commercial quantity, that matter is just below the mid-range of objective seriousness taking into account the various matters I have referred to. The supply at sequence 3 is multiple times more than the indictable quantity but does not approach the commercial quantity. That matter falls, in terms of objective seriousness, at a mid-point between the low and medium range of objective seriousness.

11. Moving to some matters that are personal to Mr Wilcox, he has a very limited record in his home state of Queensland. Most of the matters that he has been dealt with did not attract conviction; that said, there are entries of possess prohibited drug which reinforce the background that I have read about. I am prepared to give weight to the observations made in the sentencing assessment report and the very careful report of Dr Patrick Sheehan noting that some parts of those reports have been redacted and reliance is not placed on them partly given the emerging material about the Queensland issues. Mr Wilcox is supported by Dylan Coleman in an insightful letter of reference from Mr Coleman being a long-term and pro-social friend of the offender. Similarly, Mathew Black is a long-term friend who describes himself as being the offender’s “best mate.” Both Mr Black and Mr Coleman remain supportive of the offender and offer support to him both while he remains in custody and when he ultimately has his release. He is supported today by his partner who is in court.

12. Mr Wilcox did not have an easy upbringing although the level of disturbance to his life does not reach levels of dysfunction as assayed by the High Court in the authorities like Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, he certainly had some difficulties to overcome. His parents split at a relatively early age and he spent some time residing with his father but was eventually returned to live with his mother in circumstances of his father having increasing difficulties with alcohol. With his mother and stepfather he was ultimately introduced at a relatively early age to cannabis use. He had ADHD as a young man and arguably on Mr Sheehan’s assessment, conduct disorder which meant that he had an uneventful time at school but failed to engage with school at Year 11 level and ultimately left.

13. He has had three significant relationships the most recent of those is a pro-social one in which his current partner is not a drug user and remains supportive of him notwithstanding that he admits that he exploited her in terms of the acquisition of a package arriving to her work address. His two earlier relationships both embedded a level of trauma in his life; the first of those relationships ended in a pregnancy where he and that partner planned to keep the baby but ultimately the partner ended the relationship and terminated the pregnancy. That event saw Mr Wilcox spiral more greatly in relation to his methylamphetamine use. In due course his second relationship was with a drug user and things became worse in the context of that relationship. Over time his mother and stepfather became mired in methylamphetamine use as well and it is easy to draw a link between Mr Wilcox’s increasing use of methylamphetamine, his desire to gamble while intoxicated by that drug and getting caught in a cycle of losing money and trying to regain it by gambling. Although it is available that he became engaged in his criminal conduct partly as a result of a large debt that he owed another person, it is pretty clear that he became increasingly involved in more sophisticated actions to try and fund his drug addiction and recover himself financially. The Crown fairly in my view concede that some of the drugs that were found in Mr Wilcox’s possession were for his personal use. There is material from which the Court can form the view that one of the significant motivations for the offender getting involved in the matter was because of his drug use and his financial difficulties. That said, as is inevitable in these matters, the Court is obliged, moderated by the personal use aspect, to form a view that the principal offence was committed likely for significant financial reward given the amount of drugs involved.

14. As I have already indicated for a different purpose, because the offender has a relatively limited record, he is entitled to a degree of leniency that somebody with a stouter record would not be entitled to. That said, it is important not to lose sight of general deterrence, specific deterrence and the need for punishment and retribution in relation to these matters. I am ultimately persuaded notwithstanding that he may have to meet other matters in a different jurisdiction but on the material before me, the offender represents somebody who to my mind has good prospects for rehabilitation. Mr Sheehan finds that his substance misuse disorder and his gambling disorder are both in sustained remission. I take into account that because it has been a little while since Mr Wilcox’s arrest until him coming before the Court for sentence that he has served at least the initial part of his sentence in conditions of maximum security. As I have indicated, I am prepared to apply a utilitarian sentencing discount of twenty-five per cent and as I said, I am prepared on the knowingly deal with the proceeds of crime to take into his attitude to making a consent order in relation to the forfeiture of that money. Apart from the community support that he has and the increasingly level of insight he has into the way his life has spun out of control, the attitude that he took to these matters in terms of making immediate admissions to the police is manifest partly to his remorse but also of his ability to rehabilitate himself. I am satisfied that he is remorseful in relation to his conduct.

15. I have determined to deal with the matters by way of an aggregate sentence; the Crown did not want to be heard against Mr Behan’s application that I consider that special circumstances could be made out and one of the reasons for that is that it is Mr Wilcox’s first time in custody, two, as a man with his personal drug addiction issues, although now in remission, he will need some significant support in the community and I am prepared to rearrange the relationship between the non-parole period and the head sentence of the aggregate sentence I fix so that he has a greater time in the community, at least in relation to this sentence. I consider if he makes good the prospects of rehabilitation that I have identified and stays the course in terms of drug treatment that he would be less likely to re-offend than one might first think.

16. Consistent with the exhortations of Hidden AJ and Davies J in Al Brahimi v R (2019) NSWCCA 273, Mr Behan provided some not insignificant assistance to the Court in terms of establishing an appropriate range. Apart from relying on the case of Lopantinski v R (2017) NSWCCA 227, Mr Behan in placing reliance on Al Brahimi, also took the Court to a digest of cases that were examined by the Court of Criminal Appeal in that case in determining to correct what was seen to be a manifestly excessive sentencing exercise. I have had regard to those digest of cases which have been helpful in establishing an appropriate range for the principle offence.

17. I have determined to find special circumstances. I have determined to deal with the matters by way of an aggregate sentence which means that I need when I indicate the sentences, to indicate sentences that have had the utilitarian discount applied to them. In the case of sequence 2 because that matter has a standard non-parole period, I am obliged in the indicative sentence to identify both the head sentence and the non-parole period. In relation to count 1 but for the application of the sentencing discount, a starting point sentence of twelve months would have been appropriate. Accordingly, the indicative sentence for count 1 is nine months. For count 2 but for the utilitarian discount, a starting point sentence of seven-and-a-half years imprisonment would have been appropriate, with the application of the discount, the indicative sentence for count 2 is five years, seven months with a non-parole period of three years and nine months. In relation to count 3, taking into account the various paraphernalia and indicia of actual of supply as well as the weight of the drug, the starting point sentence for sequence 3 but for the application of the discount would have been four years and the indicative sentence is three years. The aggregate sentence is a sentence of six years to date from 15 October 2018 and expiring on 14 October 2024. There is to be a non-parole period of four years which means the earliest date for consideration for release to parole is 14 October 2022. I have had regard to the proper Crown submission that because of the factual overlap between the matters, that a fair degree of concurrence in arriving at the aggregate sentence is appropriate.

1. Sequence 4 before the Court is withdrawn and dismissed.

2. Generally but for finding special circumstances the formula is a head sentence or an aggregate sentence has a non-parole period of 75 per cent. In your case, the non-parole period is about 66 per cent of the total term. Obviously you may face other matters interstate but the most that you would serve in relation to this matter is to 14 October 2024 but the first date on which you will be eligible for consideration for release to parole by the New South Wales State Parole Authority is 14 October 2022 and that’s the best I can do juggling the competing matters in the case.

3. I make an order for the destruction of the drug and I confirm the confiscation order that I indicated earlier.

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Decision last updated: 21 May 2020