R v Wilkins

[2007] NSWDC 65

CITATION:	R v Wilkins [2007] NSWDC 65
HEARING DATE(S):	15/03/07
JUDGMENT DATE:	15 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See paragraphs 56 - 59.
CATCHWORDS:	Criminal Law - Sentence - supply methamphetamine - on going supply methamphetamine - cooperation with authorities - early plea - parity - partial accumulation - Form 1 matters.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Tisalandis (1982) 2 NSWLR 430 Thomson and Houlton (2000) 49 NSWLR 309 SZ v Regina [2007] NSWCCA 19 R v Sukkar [2006] NSWCCA 92 R v El Hani [2004] NSWCA 162 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Shayne Robert Wilkins
FILE NUMBER(S):	06/11/0116
COUNSEL:	Mr Corr Mr Weir
SOLICITORS:	DPP Legal Aid NSW

JUDGMENT

SENTENCE

1 HIS HONOUR: The prisoner, Shayne Robert Wilkins, appears today for sentence in relation to four charges to which he pleaded guilty at the Local Court. The four charges are firstly that he, between 27 November and 16 December 2005 at Wagga Wagga in the State of New South Wales, did, on three or more separate occasions during a period of thirty consecutive days, supply a prohibited drug other than cannabis, to wit, N,N-dimethylamphetamine (common known as “speed”) for financial or material reward. This is an offence brought pursuant to s 25A(1) Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of twenty years imprisonment.

2 The second charge in time to which he pleaded guilty is another offence pursuant to s 25A(1) alleging ongoing supply of methylamphetamine between 20 January 2006 and 4 February 2006.

3 The third charge in time is an allegation that the prisoner, on 13 April 2006 at Kooringal in the State of New South Wales did agree to supply an amount of a prohibited drug, to wit, 2,000 ecstasy tablets, being an amount which is not less than the commercial quantity applicable to that prohibited drug. That offence brought pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 carries a maximum penalty of twenty years imprisonment.

4 Further, the prisoner pleaded guilty to a charge alleging that he, on 19 April 2006 at Kooringal, did supply a prohibited drug, to wit, “4 ounces of amphetamine”. This is an offence brought pursuant to s 25(1) Drug Misuse and Trafficking Act and carries a maximum penalty of fifteen years imprisonment. The quantity of the drug supplied is more specifically identified in the statement of facts.

5 The prisoner also requests that I take into account three matters on a Form One. The Crown has asked that I take them into account in relation to the second charge in time to which the prisoner has pleaded guilty. That offence will be hereinafter referred to as the principal offence. The three offences on the Form One include, firstly, an allegation on 23 March 2006 the prisoner did supply 23.8 grams of methylamphetamine; secondly, that he on 3 April 2006 did supply a prohibited drug which was held out to be 7 grams of methylamphetamine but analysed as 6.23 grams of methylamphetamine and 3.68 grams of MDMA, if I might shortly call it that. And the third charge alleges that between 1 February 2006 and 19 April 2006 the prisoner was involved in ongoing supply of the prohibited drug amphetamine. These offences will be taken into account in relation to the principal offence.

6 The prisoner was arrested on 19 April 2006 and has been in custody since that time. I have noted, as the transcript would in due course reveal, that the prisoner, on 16 August 2006, was convicted of the charge of driving whilst disqualified from holding a motor vehicle drivers licence. For this offence he was charged on 20 April 2006 and it would, although I do not have the facts available to me, that that offence was one committed in the observation of the undercover police officer with whom the prisoner dealt or under police surveillance, and has some “peripheral” connection to the current offences.

7 On 16 August 2006 the prisoner was sentenced to a non-parole period of six months imprisonment with a balance of sentence of six months. That sentence dated from the date the prisoner came into custody. I am of the view, therefore, in relation to the sentences I will impose, some of which will be partly concurrent but partly accumulative with others, that the first of the sentences in time should commence at the expiration of the non-parole period fixed by the learned Magistrate, which on my understanding is 19 October 2006. This, of course, has the effect of distorting the relationship of the non-parole period I would ordinarily fix with the balance of the sentence. And as I foreshadowed that the sentences will be partly concurrent and partly accumulative with others, that in itself constitutes a special circumstance warranting an adjustment of the relevant non-parole period on the last sentence to be imposed.

8 That having been said, I must factor into that calculation the six months term of imprisonment imposed by the Magistrate upon which any sentences I impose are cumulative, which is a further relevant consideration to “special circumstances” (s 44 Crimes (Sentencing Procedure) Act 1999). I have indicated in the course of submissions and confirm at this point that further, there are other matters that constitute special circumstances that warrant an adjustment of the relevant non-parole period. Ultimately the non-parole period I will fix will be approximately, on my very rough calculation, two-thirds or thereabouts of the total sentence imposed, including, as I understand it, the six month sentence upon which any sentences I impose are cumulative.

9 The facts of the matter are set out in a statement of facts which, as I understand it, is an agreed statement of facts of some length. This statement of facts deals with both the counts to which the prisoner has pleaded guilty at the Local Court, and continued his plea of guilty in this court, and also contains details in relation to the matters on the Form One. The statement of facts gives a total picture, as I would understand it, of the prisoner’s criminality over a period of time, taken in conjunction, of course, with his own evidence on the subject.

10 Before I turn to the facts and give a short summary of them, I also note that two co-accused, Christopher Norton and Jed Stockton, were sentenced by his Honour Judge Charteris S.C. on 6 December 2006. Although it would appear that his Honour heard the submissions in relation to those two prisoners prior to the remarks on sentences, as I would understand it, in what order I do not know, his Honour sentenced both prisoners at separate occasions on that particular date. Apparently one in the morning, one in the afternoon. It should be pointed out that Mr Norton pleaded guilty to three charges, the last two in time were charges identical, as I understand it, to the third and fourth charges to which this prisoner has pleaded guilty.

11 Mr Norton pleaded guilty to two charges. Those two charges were identical, as I understand it, to the third and fourth charges to which this prisoner has pleaded guilty. I have taken into account his Honour’s remarks on sentence; they are relevant to the sentencing of this particular offender. To some extent they may constrain the appropriate exercise of discretion in accordance with the judgment of the Court of Criminal Appeal in Tisalandis (1982) 2 NSWLR 430. However, strict parity does not arise in relation to the sentencing of this offender because, firstly, the offences committed by this offender have to be seen in the context of the other offending revealed in the first two charges to which he pleaded guilty and in the Form One matters. Furthermore, the prisoner’s record was significantly more serious than that of either Mr Stockton or Mr Norton.

12 Mr Norton was aged approximately twenty-five years of age at the time of the commission of the offences; Mr Stockton was aged nineteen years of age. Neither of their criminal histories, as I say, go anywhere near matching this prisoner. This prisoner had previously been in gaol on several occasions; neither of those men had been gaol. I note, relevantly, that the prisoner at the time of the commission of the offences would have been twenty-eight years, about to turn twenty-nine years, and thus was somewhat older. I will deal with their relationship with one another when I deal with the facts.

13 These charges arise out of an operation commenced in November 2005. That operation started off being known as Operation Surfboard and was changed to Operation Boiling. The names of the operations are not important other than to stress the fact that this prisoner was targeted by police and their investigations revealed firstly, in respect of the first charge to which the prisoner pleaded guilty, that he on three separate occasions, that is, on 26 November 2005, 10 December 2005, and 16 December 2005, provided an undercover police officer on three separate occasions with what was understood to be “speed” on each occasion for the sum of $100. The quantities on each occasion weighed 0.25 grams. The purity was very high indeed, between 80.5 and 83.5 per cent. It would appear, based on the evidence of the prisoner, that he was unaware of the extremely high purity of the drugs, which is to my mind consistent with the prices he sought for what were described as “three points” of speed on each occasion. That criminality represents what is reflected in count one.

14 In relation to the second charge to which he pleaded guilty the prisoner likewise on 23 January 2006, 1 February 2006, and 4 February 2006, provided what could be described relevantly as small quantities of methylamphetamine for financial reward. On the first occasion he was paid $150 for 0.45 grams of methylamphetamine of a relatively low purity, on the second occasion he was paid $300 for what amounted to 0.88 grams of methylamphetamine of 12.5 per cent purity, and on 4 February 2006 the prisoner was paid $700 for a slightly larger quantity of 2.96 grams of 9.5 per cent purity. The trafficable quantity required for the drug methylamphetamine, as I understand it, is 3 grams. That was the second charge, the principal offence to which I earlier referred.

15 The facts reveal supplies by the prisoner on 23 February 2006, which is the first charge on the Form One, where the prisoner handed over 23.8 grams of methylamphetamine of 8.5 per cent purity in exchange for $4,000. This is clearly a more significant supply in an individual sense than the earlier supplies. Discussions were had with the prisoner through March and early April regarding the supply of methylamphetamine. On 3 April 2006 discussions occurred between the prisoner, the undercover agent and a third man regarding the possible sale of half a pound of amphetamine for $30,000. During this exchange the prisoner provided Luke, the undercover officer, with methylamphetamine and an MDMA in exchange for $1200. This, as I understand it, constitutes the second charge on the Form One.

16 On 13 April 2006 the undercover agent in company with another undercover agent involved in these investigations discussed with the prisoner, in the presence of Mr Norton, the future sale of amphetamine and ecstasy, and in particular, the supply of 2,000 ecstasy tablets at the price of 1300 or $1500 per thousand tablets. This discussion regarding the supply of the 2,000 ecstasy tablets which occurred in the presence of the prisoner but primarily involved the offer from Norton gives rise to the third charge to which the prisoner has pleaded guilty to in time, being the offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. I point out in relation to that matter, as with the fourth charge in time, that the prisoner was acting as a middle man between the undercover agents and Mr Norton. This is to be understood in the context of the prisoner having demonstrated to the undercover police that he was well capable of supplying prohibited drugs, albeit at that point of time methylamphetamine rather than MDMA.

17 There is no evidence that Mr Norton actually possessed 2,000 ecstasy tablets. Whether Mr Norton, if given the opportunity in due course, could have produced these tablets is a matter of speculation. I note that Mr Norton was sentenced by his Honour Judge Charteris on the basis that Mr Norton did not have the 2,000 ecstasy tablets, but the crime was complete by the offer to supply, in respect of which the prisoner formed part of a joint criminal enterprise by reason of his role as a middle man.

18 On 19 April 2006 things escalated in reality when the undercover police, both Luke and Sandra, obtained $66,000 in cash and presented it to the prisoner for inspection as with others at a motel in Wagga. On this occasion Norton and Stockton were present. There was further discussion about the future supply of the 2,000 ecstasy tablets, and also discussion about purchasing 4 ounces of amphetamine for $10,000. What the $66,000 was going to purchase is a little unclear from the facts. On my very rough calculation even if the 2,000 tablets had been produced, at $15,000 per thousand that would have involved $30,000. The amphetamines were to be purchased for $10,000, it left another $26,000 unaccounted for.

19 Be that as it may, it is clear that this very large sum of money was used to demonstrate to the offenders, including this prisoner, that the undercover police were serious about purchasing some drugs. It is clear that Norton and Stockton had access to the 4 ounces which the prisoner at that time did not have. Again he performed the role of the middle man. When the money was shown and further discussions occurred, Norton and Stockton left the room and returned with the 4 ounces of amphetamine which, as I understand the facts presented before Judge Charteris, and as I understand the analyst’s certificate, in fact amounted to a total of 110 grams or 4 ounces of amphetamine as it is particularised in the charge.

20 During the course of these various investigations leading up to this transaction which led to the arrest of both the prisoners, Mr Norton and Mr Stockton, various conversations were intercepted by the use of listening devices, and telephone intercepts were used to intercept conversations. The third charge on the Form One is said to represent that various transactions the prisoner conducted between the various dates that were intercepted by telephone intercepts.

21 It must be said that the courage and the ingenuity of the undercover police is to be recognised. It is well known in law enforcement circles and within judicial circles that the detection of the pernicious trade in drug trafficking is very much dependent upon the courage of these officers which is, on many occasions, unrecognised and unheralded, and for the purposes of the record I believe it is appropriate that I should place on the record the appreciation of the community for the courage that is demonstrated by people such as Luke and Sandra, and the potential danger they face on a daily basis passing themselves off as drug dealers. Of course, having said that, I do not for a moment suggest that this prisoner in any way threatened them or perhaps even presented any danger to them. However, the truth of the matter is the undercover officers themselves are not to know what threat a particular person presents to them should their cover as drug purchasers or dealers be blown.

22 In relation to the co-accused, if I might just turn to those persons for one moment, I have already pointed out the common charges relating to Mr Norton and Mr Stockton. Mr Norton was also charged with another charge of supplying fifteen ecstasy tablets, which apparently he had some difficulty obtaining in any event. As I understand the sentences imposed by the learned sentencing judge, ultimately for the offer to supply 2,000 tablets he sentenced Mr Norton and Mr Stockton to six months imprisonment. In relation to the supply of the 4 ounces of amphetamine on 19 April 2006 he sentenced each of those offenders to three years imprisonment. Mr Norton received an additional term of imprisonment for the small quantity of ecstasy tablets.

23 His Honour quite properly made the various sentences partially accumulative upon each other and fixed appropriate non-parole periods for each of the offenders. The ultimate sentences his Honour imposed on the other offenders involved a recognition that the pleas of guilty had been entered at the first reasonable opportunity and thus the prisoners were entitled to the maximum discount for the utilitarian value of those pleas of guilty in accordance with the guideline judgment of Thomson and Houlton. There was no discount in either case for cooperation. Cooperation was not relevant.

24 I have already pointed out that each of these offenders clearly, particularly Mr Norton, had access to some of the drugs in question, the subject of the charges, and facilitated their supply with the assistance of this prisoner as a middle man. It is submitted, and I accept as the case, that this prisoner is to be regarded in an objective sense as equally culpable with each of these offenders. These other offenders, of course, as I pointed out, had lesser records and were younger, particularly Mr Stockton, who was only nineteen years of age. Both offenders were facing their first terms of imprisonment respectively.

25 In relation to this particular prisoner his pleas of guilty were entered at the Local Court. They are pleas of guilty that were entered, as I understand it, at the first reasonable opportunity. He is entitled to the maximum discount available pursuant to the guideline judgment for the utilitarian benefit of the pleas of guilty.

26 Furthermore, he has provided cooperation to the authorities set out in material that has been tendered in this court, that I need not dilate upon, as well as giving an undertaking to give evidence in the future in relation to a co-accused who has ultimately pleaded guilty before me in these sittings. I am informed that the prisoner gave a statement in relation to matters upon which he could give evidence in early August 2006. That means that he provided cooperation well before he pleaded guilty to the current charges, or before he was at least sentenced in relation to the current charges. I am also informed that following upon the giving of that statement he attended upon the Local Court and has already given evidence against the person who pleaded guilty before me. Thus can be seen that his cooperation was timely, valuable, significant, and has been underscored, if I can use that expression, by the practical fact that he has actually given evidence. The offer of future assistance would appear to be now unnecessary to be taken up by the prosecution, but that earlier offer of future assistance is relevant to assessing the relevant discount to be applied.

27 This matter has been the subject of submission by Mr Weir who has skilfully represented his client’s interests in these proceedings, and has also been the subject of submission by the learned Crown Prosecutor. I have had regard to the judgment that was handed up by Mr Weir, SZ v Regina [2007] NSWCCA 19, particularly the discussion of the application of appropriate discounts by Howie J and Buddin J, and I have noted their remarks. And also earlier decisions of this Court, Sukkar [2006] NSWCCA 92, and of course, El Hani [2004] NSWCCA 162. There are many other judgments, of course, that inform this topic predating these more recent expositions on the subject, such as Cartwright, Gallagher, amongst others, which are significant judgments in this regard.

28 Ultimately, to summarise the situation, I understand that it is appropriate to give a combined discount for both the utilitarian benefit of the plea and the cooperation that a discount in excess of 50 per cent would only arise in exceptional circumstances. In any event, a discount of up to 50 per cent for both would require the maximum benefit being given for the utilitarian value of the pleas of guilty as well as significant cooperation, and that is the case here. As I foreshadowed to the accused and the Crown, I propose to accord the prisoner in the context of what is discussed in SZ that a discount of 50 per cent in combination for both matters, which I understand to be the appropriate approach in terms of the practical application of the discount, if not the actual quantification of the discount. That will obviously be calculated on a case by case basis.

29 With regard to the prisoner’s background I have a document that the prisoner wrote for my information, which I have read. In that document I have noted his expression of contrition which was confirmed in his evidence before me, and his desire to undertake courses to rehabilitate himself, and particularly, to address a long standing dependence upon methamphetamines. I accept as a fact that the prisoner has been using prohibited drugs, particularly methamphetamines or amphetamines for a lengthy period of time going back over ten years. To some extent this fact is reflected in his criminal history. It is also reflected to some extent in the facts on these charges because at one stage, as I understood the matter, the prisoner in fact injected methamphetamines in the presence of the undercover officer.

30 The prisoner is a man who has been seriously injured as a very small child in a house fire. Sadly, his younger sister died in that same incident I am informed, and I have no reason to doubt that. This occurred when he was three. The physical scars of that incident are still with him as he approaches his thirtieth birthday in April. One can see the scarring on his face and I understand he has extensive scarring on his body. This horrendous incident has affected and infected his life ever since, and to some extent may explain his history of offending going back to 1993. Certainly it has placed him in an invidious position in a range of ways. He has been the subject of torment, both physical and mental, caused by the conduct of others. And of course, as he has grown he has had to be subjected to painful surgical treatments. Perhaps further treatments will be required, which not only have affected him physically, but I am sure have had a profound effect upon his mental wellbeing. It would appear on the evidence available to me that in part his dependency upon prohibited drugs stems from the psychological reaction to these deprivations.

31 His criminal history, however, does not entitle him to any particular leniency. He has a number of findings of guilt in the Children’s Court for various offences, including offences of dishonesty. He has a conviction for possessing a prohibited drug in 1999 when he would have been, on my very rough calculation, twenty-two. He has a number of drink driving offences. He has convictions of violence, and in fact in May 2004 in the Sydney District Court he was sentenced to eighteen months imprisonment for assault occasioning actual bodily harm with a non-parole period of nine months, which would have concluded, on my very rough calculation, in May 2004. He has thus been subject to parole supervision, he has been previously gaoled also for driving whilst disqualified. He has already been gaoled, as I have pointed out, in relation to another driving whilst disqualified offence committed on or about 19 April 2006.

32 He does not have any prior convictions for the supply of drugs but has been previously gaoled, in addition to the matters I have referred to, for other driving offences in 2002 in the Bathurst Local Court.

33 The prisoner has given evidence before me that until his last release from gaol he lived in the Bathurst area. He had a relationship with a woman for approximately ten years. On his release from gaol that relationship came to an end. He owned a property in Bathurst which I will assume for the moment was acquired by lawful means. That property was sold, presumably paying out the interest of his partner, and the prisoner purchased a property in Wagga. I accept he’d come to Wagga to start a new life, and I accept that on his release from custody he was able to, for some weeks at least, remain drug free. However, come mid to late 2005, as I understood his evidence, he started using methamphetamines again, and this led ultimately to the circumstances in which the first of the supplies to which he has pleaded guilty occurred.

34 I accept for the purposes of sentencing him that he is a drug user/supplier, but on the other hand I do not accept that he has solely sold drugs, that is, methylamphetamine, for the purposes of obtaining methylamphetamine for himself. Whilst this would be a substantial part of his rationale for being involved in the trade in methylamphetamine his own evidence points to the fact that he has used the money from the sale of drugs for living expenses. In light of the fact that he purchased a property in Wagga before commencing this criminality it could not be said on the evidence available to me that he has acquired significant assets from this criminal conduct, but it has sustained his lifestyle. I accept that the more amphetamine he used the more he needed; the more he needed the more he involved himself in the sale of drugs in the manner as set out in the facts prepared by the prosecution.

35 The Probation and Parole Service has prepared a report for the information of the Court, which sets out details relating to his past supervision. In the past his response to supervision has been described as poor and he has been breached in relation to a failure to complete community based orders. The report confirms the matters to which the prisoner referred to in his evidence about the effect upon him of his significant injuries and the deprivations of his upbringing.

36 He has been, to his credit, when at large - and he has been at large for most of his adult life, to be fairly said - a very good worker. In fact, he gave evidence before me that he worked as a concreter in Wagga and was anxious to start his own business on his release from custody. True it is he is disqualified for a lengthy period of time, but he believes he can still start such a business. It is a very demanding type of work, concreting, and it would appear that the Probation and Parole Service confirms that the prisoner has always been employed and has never been reliant on unemployment benefits.

37 The prisoner confirmed to the Probation and Parole Service that once he started using, it was impossible for him to stop, and that his dependency grew as time wore on. The prisoner would wish to attend upon a rehabilitation program in the wider community such as the Peppers program near Wagga. This, to my mind, will be a matter for the parole authorities. There is no report from Peppers which confirms his suitability for that course but I accept his statement that he would wish to do that program as some evidence of his desire to address the fundamental issues that affect his drug dependence.

38 The Probation and Parole Service have noted the prisoner’s ability to fit into society “as a law abiding citizen” had been blurred by his alcohol and poly substance abuse over many years. He appeared to the Probation and Parole Service to exhibit insight into what were his “crimogenic needs”, and it noted the continuing support of his family, although his family, I assume, live, from what I heard of the evidence, either in Sydney or Bathurst. He has been assessed as suitable for admission into the Peppers Illicit Drug Program according to the Probation and Parole Service in its inquiries, but I have no evidence, as I said, from Peppers itself.

39 The Probation and Parole Service does say that the prisoner has been assessed as “unlikely to benefit from supervision from this service” because of “unresolved drug and alcohol issues”. I have very great difficulty understanding this formulation. I would have thought the very purpose of Probation and Parole supervision amongst other things would be to ensure that he did undertake the drug rehabilitation programs that it itself says that he is suitable for. One of the purposes of parole supervision is to assist others to maintain a law abiding lifestyle and to assist offenders who are released from gaol to adjust to community living. This may involve directing those offenders to undertake drug and alcohol counselling and treatment programs. In fact, a major part of the Probation and Parole Service’s work is concerned with this matter. I, for myself, find it difficult to understand, notwithstanding his poor history of supervision in the past, why the prisoner would not benefit from Probation and Parole Service supervision when there is a clear need on the facts of this case for him to have some structure on release and some motivation to address programs that will assist in his rehabilitation.

40 I have concluded, having regard to the totality of the evidence, that, apart from the fact of accumulation providing a special circumstance, there should be some adjustment of the relationship of the relevant non-parole period to the total sentencing imposed to assist in the supervision of the prisoner whilst at large, to direct him in relation to drug and alcohol counselling or treating programs. Also, most importantly, to provide professional guidance to the prisoner to enable him to adjust to community living, which is an important aspect of parole supervision, because those that are just thrown into the streets from gaol with no professional assistance, particularly with backgrounds such as this prisoner, will inevitably find their ways back to gaol sooner rather than later. This cannot possibly be in the community interest.

41 That having been said, the adjustment I propose to make is in one respect a marginal adjustment, but it does recognise the need for an extended period of supervision to assist in regard to those matters I have identified.

42 In relation to this particular matter, of course, I am taking into account matters on a Form One. Those three matters are very relevant to an assessment of the criminality in the principal offence. They show, for example, that the matters set out in the principal offence are not “one off” offences, that is self-evident in any event, by reference to the first, third and fourth charges, particularly the first and fourth charges. They also show a sustained criminality at a relatively lower level than can be seen from time to time in this Court, and show the prisoner as a person involved in the business of drug supply and not simply supplying for the purposes of his immediate needs insofar as drugs are concerned. This criminality, reflected in the Form One is a matter that requires, in the fixing of an appropriate sentence for the second charge in time, or the principal offence, a greater sentence than would otherwise be appropriate for that offence.

43 The relevance of Form One matters in the sentencing exercise was discussed by the Court of Criminal Appeal in the guideline judgment of that court concerning such matters. Without going into detail in relation to what the learned Chief Justice said on behalf of the Court in that matter, it is clear that when Form One matters, such as these are taken into account in relation to the principal offence, those matters will have the effect of changing the length of the appropriate sentence for the principal offence and will properly provide a context for understanding the criminality reflected in the principal offence. Of course, as the Court of Criminal Appeal said in that judgment, there is no need to quantify the additional penalty to be ascribed to the principal offence by reason of the Form One matters. But in sentencing the prisoner I have had close regard to the terms of that guideline judgment and what the court said about the appropriate approach in circumstances such as this.

44 In sentencing the offender I am required to take into account s 3A Crimes (Sentencing Procedure) Act, and in this matter there must be both a need to adequately punish the offender to prevent him and others from committing similar offences, promote his rehabilitation, make him accountable, and denounce his conduct as well as recognise the harm that his distribution of drugs would have done to the community. Whether the community needs actual protection from the offender is a little hard to say, but certainly if he wanted to continue in the trade of prohibited drugs then there is an element of protection of the community that would need to be taken into account.

45 In relation to s 21A I note, of course, that relevant aggravating and mitigating factors where known to the court do not require necessarily the court to increase or reduce the sentence for the offence. In respect of relevant aggravating factors that arise from this particular matter, I note in relation to the offences that the prisoner was involved in planned criminal activity. It is not suggested that he is part of an organised crime network as such, but it is clear that he was part of a network of people who were involved in the trade of prohibited drugs in the Wagga area.

46 I also note that each offence was committed as an offence amongst a series of criminal acts, each of course requiring proper recognition as discussed in, for example, Pearce v The Queen (1998) 194 CLR 610, particularly at para 45. The wording of s 21A(2)(m) is somewhat ambiguously phrased but clearly, of course, I cannot sentence the prisoner in respect of each offence to anything other than the appropriate penalty for each offence. I will do so in accordance with Pearce principles, as will I in calculating accumulation and having regard to the totality of the criminality. The fact is that there is a relationship between the offences, one to the other, in a sense albeit that the offences were committed over a period of time.

47 With regard to relevant mitigating factors, it is not open for me to conclude that any damage caused by the offences was not substantial. I have no way of knowing what effect the perpetration of these offences in context had upon the wider community. I know the drugs supplied to the undercover police officers were not provided to others but the prisoner clearly was involved in the trade of drugs and other persons received drugs from him. What damage has been to those persons would be a matter of speculation.

48 It is the case the prisoner has pleaded guilty. That requires a discreet recognition as I have earlier outlined. I also note the assistance the prisoner has given to law enforcement authorities as required to be considered as a mitigating factor and as provided for in s 23 of the Act. Unfortunately, it is not a case where I can conclude that the prisoner is unlikely to re-offend or even has good prospects of rehabilitation. His prospects of rehabilitation will be very much dependent upon the attitude he displays on his release from custody. But I do understand and accept at face value the expressions on his part of a willingness to change on release, and a willingness to do things that might assist him to avoid the use of drugs in the future. Given his past history, of course, his prognosis, however, must be fairly said to be problematic. And this is another reason that, in my view, he needs some professional assistance on his release.

49 I note in relation to his circumstances that he has been assaulted in prison. He was attacked by a man wielding what appeared to be a sock with a can of baked beans in it. He suffered some superficial injuries to his face as well as some broken teeth. He was called a “dog”, albeit that there is no evidence to suggest that the perpetrator knew as a fact that he, the prisoner, had provided assistance in relation to Mr Cool. But I note that the occurrence was on or about 14 September 2006 and the prisoner had given his statement to police in relation to this matter in early August 2006. Although it is a matter of speculation on my part one might have thought that a prisoner being called out by the police to give a statement or to be spoken to, at least, by them might give some clue to some other persons that he, the prisoner, was providing some assistance in relation to other matters.

50 Of course, as to what will happen in the future I do not know because I do not know whether Mr Cool will go to gaol; that is a matter to be determined tomorrow. If Mr Cool does go to gaol, however, I would have thought it was almost certain that the fact that the prisoner had given evidence against Mr Cool would be known in the wider prison community. That having been said, as I indicated to the Crown the hardships of custody arising out of the prisoner’s cooperation, both past and potentially in the future, are matters that are fairly already recognised in the appropriate discount for his cooperation to which I have earlier made reference.

51 I also note in the evidence of the prisoner, and in the medical records of the gaol, that the prisoner has been treated in respect of what could be called mental health issues. There is some suggestion that he has been diagnosed in the past with some depression. Whether it is truly major depression I do not know because I do not have a medical report to confirm that. It may well be depression or depressive symptoms reactive to the circumstances of the prisoner being in gaol. The prisoner also says that earlier this year he was diagnosed with a bipolar disorder. I do not have any direct medical evidence of this but the prisoner says, and I am prepared to accept it, that he is currently under medication for the treatment of such a disorder as well as receiving medication for the treatment of depression from time to time.

52 I have taken into account his medical condition, as I understand it. This does not appear to offer an explanation for his involvement in the commission of these offences. However, the existence of a pre-existing depression disorder might more readily lead the prisoner to dependency upon prohibited drugs when the opportunity arises because prohibited drugs obviously provide the means of some form of release from one’s reality. I do not have any medical evidence to confirm that bipolar disorder makes anybody more susceptible to drug addiction or drug usage, but I am also prepared to accept that a mental imbalance of that type may lead to the use of medications, be they legally acquired or not to assuage the symptoms of such a condition.

53 The sentencing of the offender is a complex issue in some respects. There are many matters to be taken into account, not all of them are capable of precise articulation. I have done the best I can in a very busy list with a great deal of pressure of time upon me to cover the field in an extemporary way. I trust I have done justice to the cases presented by both parties but I have taken into account all that has been put to me on behalf of the accused by Mr Weir. It has been most helpful and all of it has been put to me on behalf of the Crown.

54 Ultimately, in fixing upon the appropriate sentences in these matters I must, with the application of the appropriate discount, ensure that even with the discount there is still recognition of the significance of the criminality of the prisoner to ensure that whilst he does receive the benefit that he is entitled to for the matters that do him credit the sentence he serves does not lead to a term of imprisonment which is totally disproportionate to that criminality to which he has admitted in this court.

55 Thus, on the bases of the reasons I have just given, and having regard to the matters that were discussed at the commencement of these sentencing remarks, I will make the following orders.

56 Firstly, in relation to the first charge, which is the charge alleging ongoing supply in November/December 2005, I convict the prisoner and I sentence him to a term of imprisonment of one year and three months to commence from 19 October 2006 and to expire on 18 January 2008. I do not fix a non-parole period in relation to that matter for reasons which will be self evident by my other orders.

57 In relation to the second charge, that is, the ongoing supply committed in early 2006, January and February 2006, taking into account the three matters on the Form One, I sentence the prisoner to a term of imprisonment of two years and six months. That is to date from 19 July 2007 and to expire on 18 January 2010. That sentence is partly concurrent and partly accumulative to the extent of nine months with the first sentence I impose. Both those sentences involve a 50 per cent discount for the matters I have described.

58 For the third charge, that is, the offering to supply the 2,000 tablets of ecstasy committed on or about 13 April 2006, the prisoner is sentenced to six months imprisonment and that term of imprisonment is to date from 19 October 2008 and to expire on 18 April 2009. That sentence is entirely concurrent with the sentence of two years and six months which I have pronounced, but it commences one year into that sentence.

59 In relation to the fourth charge, in respect of that matter I fix a sentence by way of non-parole period of nine months to commence from 19 October 2008. That is to expire on 18 July 2009. In respect of that sentence I fix a balance of sentence of one year and nine months which is to expire on 18 April 2011.

60 In light of the structuring of the orders that I have made in relation to this matter it is self-evident that I will be required in respect of the sentence of count two to fix a non-parole period of two years expiring on 19 July 2009. That non-parole period is of course greater than three-quarters of the total sentence but gives effect to the desire that the prisoner be released to parole on 18 July 2009, and also to give effect to the desire to adjust the relationship of the ultimate non-parole period to the total sentence required to be served by the prisoner, including the six months for the drive whilst disqualified matter.

61 HIS HONOUR: Now, can I just pause for a moment, Mr Crown? Is there any error or technical difficulty with what I’ve done?

62 CORR: No, your Honour, it accords with my calculations.

63 HIS HONOUR: So in effect the sentences I have imposed upon the prisoner commence from 19 October 2006 and expire on 18 April 2011. That is a total of four and a half years. The sentences I have imposed involve a non-parole period of two years and nine months, but in effect, the total sentence that the prisoner is subject to is a sentence of five years with a non-parole period of three years and three months if one takes into account the six months I have taken into account imposed by the Magistrate.

64 HIS HONOUR: Now, Mr Weir, do you understand that?

65 WEIR: Yes your Honour.

66 HIS HONOUR: Thank you. And of course the sentences I’ve imposed involve a discount of 50 per cent for the reasons I have given. Mr Wilkins, do you understand the sentences I have imposed?

67 OFFENDER: Not really, but Mr Weir will explain.

68 HIS HONOUR: Well, the effect is that you’re eligible for parole to be determined by the Parole Board on 18 July 2009. That is two years and four months from now. Do you understand that? You’ll be then subject to a period of parole supervision for a period of one year and nine months. And when you take into account the sentence imposed by the magistrate for the drive whilst disqualified, the total sentence to which you are subject is in effect a sentence of five years with a non-parole period of three years and three months. Because I have to accumulate the sentences I impose upon the six month non-parole period fixed by the Magistrate.

69 OFFENDER: I was under the impression that I was refused bail on these charges.

70 HIS HONOUR: Yes you were, but you were then sentenced for driving whilst disqualified and sentenced to 12 months with a six month non-parole period for that offence. That offence, whilst connected to these offences, is a separate offence and I can do one of two things. I could make these sentences entirely concurrent with that sentence, which I don’t think is appropriate, or I can accumulate this sentence upon the non-parole period fixed by the Magistrate, and that’s what I’ve chosen to do.

71 CORR: The 166 Certificate, the backup charges, if they could be dismissed.

72 HIS HONOUR: The backup charges are dismissed pursuant to s 167 of the Criminal Procedure Act. Thank you.

73 CORR: And if it hasn’t already been done, your Honour, an order for the destruction of the drugs.

74 HIS HONOUR: I order that the drugs seized from the prisoner if not already done so should be destroyed.

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