R v Wilkins
[2017] ACTSC 111
•24 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wilkins |
Citation: | [2017] ACTSC 111 |
Hearing Dates: | 27 January 2017 and 19 April 2017 |
DecisionDate: | 24 April 2017 |
Before: | Burns J |
Decision: | See [16]-[23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking a controlled drug other than cannabis, namely methylamphetamine – plea of guilty – breach of Good Behaviour Orders – community service completed – drug-related offences – good prospects for obtaining employment – reasonable prospects of rehabilitation – community better protected through addressing drug issues and avoiding reoffending – Good Behaviour Orders cancelled – re-sentenced – Intensive Correction Order imposed. |
Legislation Cited: | Criminal Code2002 (ACT) s 603(7) |
Parties: | The Queen (Crown) Mr Rhys Wilkins (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 224 of 2014; SCC 225 of 2014; SCC 305 of 2014; SCC 306 of 2014; SCC 152 of 2016; SCC 208 of 2016 |
BURNS J:
Rhys Wilkins, you appear before me today for sentence with respect to one count of trafficking in a controlled drug other than cannabis, namely methylamphetamine. This offence occurred on 5 April 2016. It is an offence contrary to s 603(7) of the Criminal Code2002 (ACT) and carries a maximum penalty of 1,000 penalty units, 10 years imprisonment or both.
A Statement of Facts was tendered at the sentence hearing. I will not now recite all of those facts. I note that after a number of adjournments of the charge in the Magistrates Court, eventually on 12 July 2016 you pleaded guilty to this charge (CC16/3827) in the Magistrates Court and you were committed to this Court for sentence on the same day. A conviction with respect to this offence places you in breach of orders made by Refshauge J on 5 June 2015 with respect to two other offences of supplying a drug of dependence.
I accept that your role in this matter was effectively one of guarding a relatively large amount of methylamphetamine for the owner of that drug. The owner was at some stage to return and retrieve the drug from you and it was your understanding that the owner was proposing to sell some or all of that drug. Accordingly, the Crown accepts that you were at a relatively low level in the hierarchy of supply. I also take into account that there is no evidence that you were engaged in this offence for personal financial gain. I accept that you are a user of methylamphetamine and on the balance of probabilities, that you were involved in this offence as part of a process of supplying your own needs in that regard.
As I have said, you entered a plea of guilty in the Magistrates Court on 12 July 2016. I accept that this was an early plea of guilty and I will reduce by approximately 25 per cent the sentence that would otherwise have been appropriate in order to reflect your plea of guilty.
You have a relatively lengthy criminal history but the most important or significant offences that appear on your criminal history relate to the offences that were dealt with on 5 June 2015 by Refshauge J. As I have said, on that date, you were charged with two offences of possession of methylamphetamine for the purpose of sale or supply. One such offence occurred on 9 December 2013 and the other occurred on 10 October 2014. With respect to the first charge (XO15/30184) you were sentenced to 16 months imprisonment which was suspended with a Good Behaviour Order for a period of two years and you were required to complete 150 hours of community service. With respect to the second charge (XO15/30185), you were convicted and sentenced to 12 months imprisonment but that sentence was also suspended and there was a further Good Behaviour Order for a period of two years with a requirement to complete a further 150 hours of community service.
You were dealt with for breaching those orders on 30 June 2016 by Refshauge J. He reimposed the same sentences of imprisonment but reduced the Good Behaviour Orders from 2 years to 18 months and also omitted any further community service because, as I understand it, by that time you had completed the community service orders. I also understand that you have a fairly lengthy history of failing to comply with non-custodial orders and community based orders. You have in the past failed to comply with directions given to you by Corrective Services, but it is to your credit that you did complete the community service orders that were imposed by Refshauge J.
I accept that the majority of your previous offending, including the most serious offences, are drug related and, of course, the offence which is before the court today is also drug related. Since being remanded in custody on this occasion, you have been tested on numerous occasions for drug use and no drugs have been detected.
I note that you have undertaken drug rehabilitation successfully in the past but you have relapsed into drug use. The present relapse was connected to a lack of coping strategies to deal with the breakup of a relationship that you were in at the time. After that relationship, you became depressed and you resumed the use of methylamphetamines. Since being remanded in custody you have commenced on anti-depressants and as I have said, it appears that you have not used any illicit substances since being held in custody.
It is accepted by your counsel, and I think properly so, that a sentence of imprisonment is the only appropriate sentence with respect to the matter which is before me today. It is also accepted that upon recording an inevitable conviction with respect to this offence, I will be obliged to cancel the Good Behaviour Orders imposed by Refshauge J and either to impose the sentences that his Honour suspended, or alternatively re-sentence you.
In my opinion, nothing other than sentences of imprisonment are appropriate with respect to those offences. The question is whether those sentences should be served by way of full-time imprisonment or whether the imposition of an Intensive Correction Order will be adequate and appropriate in the circumstances of this offence.
I take into account the fact that you have accommodation available to you in the community, but it is clear that you will need to settle rent arrears if you are to remain in that accommodation and also make arrangements with ACT Housing in order to continue in your occupation. It appears, however, that that is not impossible.
I also note that you have a good work record. The evidence before me is to the effect that your prior employment is no longer available to you because of this offence; but I do note that you have skills which have enabled you in the past to obtain employment and as such, I am satisfied that there are good prospects for you again obtaining employment in the near future.
Bearing in mind the fact that you have previously been able to maintain a drug free life, after undergoing rehabilitation for a period of time, I consider that you have reasonable prospects for rehabilitation if you address your current drug issues and particularly issues concerning prevention of relapse into drug abuse. You were assessed by an officer of ACT Adult Corrections for an Intensive Correction Order and you were assessed as suitable. If such an order was imposed, it is proposed that drug use, financial issues and your attitude would be addressed during the period of the Intensive Correction Order. I have taken into account all of the material which has been placed before me. I note that you have not always been honest either with the author of the Pre-Sentence Report or the Intensive Correction Order assessment, or indeed with Refshauge J when he dealt with you in the past.
Nevertheless, the present offence is not so objectively serious as to rule out the possibility of an Intensive Correction Order. Further, the fact that your most serious offending history is drug connected, leads me to conclude that it is worthwhile attempting on this occasion to deal with that issue in the hope that the community will be better protected by you addressing drug issues and avoiding offending in the future, rather than simply placing you in custody at the present time.
However, this is not the first occasion that you have been given an opportunity to address drug addiction and in my view there can be no second chances from this point on. If you do not take the chance that I am about to give you with both hands, I see no alternative other than full-time imprisonment and for a lengthy period. I note also that I am required to sentence you today with respect to an offence of failing to appear which is a related offence transferred to this Court from the Magistrates Court.
Sentence
I record a conviction with respect to the charge of trafficking in a controlled drug (CC2016/3827). The recording of that conviction brings you into breach of the Good Behaviour Orders imposed by Refshauge J. I will cancel those Good Behaviour Orders. I will not simply impose the sentences that were suspended by his Honour but I will re-sentence you, bearing in mind the period of time that has passed since the imposition of those orders and the fact that you have completed the community service orders which were initially imposed by his Honour.
With respect to the charge of possessing methylamphetamine for the purpose of sale or supply to another person (XO15/30184), you will be re-sentenced to a period of imprisonment commencing on 12 December 2016 and expiring yesterday, 23 April 2017. That sentence is to be served by way of full-time imprisonment.
With respect to the charge of possessing methylamphetamine for the purpose of sale or supply to another person (XO15/30185), you will be sentenced to nine months imprisonment commencing today and expiring on 23 January 2018.
With respect to the charge of trafficking in a controlled drug (CC2016/3827), you will be sentenced to 18 months imprisonment which I have reduced from two years in order to reflect your plea of guilty, which will commence on 24 October 2017 and expire on 23 April 2019.
With respect to the charge of failing to appear (CC2016/06235), I do not consider that to be of such a nature as to require a sentence of imprisonment. You will be convicted and there will be a Good Behaviour Order for a period of nine months which will be restricted to the core conditions only.
In relation to the sentences of imprisonment that I have imposed, commencing today, 24 April 2017, and expiring on 23 April 2019, I will order that those sentences be served by way of an Intensive Correction Order.
In relation to the drive whilst disqualified matter (CC2016/10829), I will cancel the Good Behaviour Order and re-sentence you to four months imprisonment commencing today. That sentence is also to be served by way of an Intensive Correction Order.
The order of disqualification which was made by the Magistrate will remain.
[speaks directly to offender]
Now you have heard what I said, Mr Wilkins, about this being your very final chance, you cannot allow reverses in your life, such as everybody suffers from time to time, to become an excuse for reverting to drug use, as then inevitably when you revert to drug use you get into criminal offending.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 29 May 2017 |
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