R v Williamson

[2019] NSWDC 72

District Court

New South Wales

Medium Neutral Citation:	R v Williamson [2019] NSWDC 72
Hearing dates:	01 March 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	(1) Convicted (2) Aggregate period of imprisonment of three years to be served by way of an intensive correction order commencing on 1 March 2019. The intensive correction order is subject to the following conditions: (a) The offender must not commit any offence; (b) The offender must appear before the Court if called upon; (c) The offender must perform 500 hours of community service work; (d) The offender is to abstain from consuming drugs. (e) The offender must submit to supervision by a community corrections officer. (f) The offender is to report to the Hornsby Community Corrections office within 7 days. (g) Not to use any drugs proscribed under the Drugs Misuse and Trafficking Act 1985 (NSW)
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Community Safety
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 3A Drugs Misuse and Trafficking Act 1985 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Parente v R [2017] NSWCCA 284 R v Pullen [2018] NSWCCA 264 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited:	NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017
Category:	Sentence
Parties:	Regina (Crown) Nicholas Kane Williamson (Offender)
Representation:	Counsel: Ms A Chauvet, Solicitor Advocate (Crown) Mr G Brady SC (Offender)
File Number(s):	2017/00339816

SENTENCE

HIS HONOUR:

OVERVIEW

1. Nicholas Kane Williamson comes before me for sentence having pleaded guilty to one count contrary to s 25(1) supply a prohibited drug of the Drug Misuse and Trafficking Act in relation to the supply of 71.39 grams of methylenedioxymethylamphetamine. The second count that the offender has pleaded guilty to is contrary to s 25(1) of the Drug Misuse and Trafficking Act, knowingly take part in the supply of a prohibited drug, 47.3 grams of 3 4 methylenedioxymethylamphetamine.

2. Both of those charges carry a statutory maximum period of 15 years’ imprisonment and/or a fine of $22,000. There is no statutory non parole period in relation to either of those charges. The statutory maximum is a yardstick for a sentencing judge to steer by but not aim for. There are two charges which are on a Form 1. Both of those charges will be dealt with in relation to count 1 which is sequence 5.

3. The first one is possess or use a prohibited weapon without a permit contrary to s 7(1) of the Weapons Prohibition Act and that would appear to have been a knife that was found at the premises by the police during the course of a raid. The second Form 1 matter to be taken into account is possession of a prohibited drug being 0.1 grams of cannabis seed contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 which was found also at the premises during the course of the police raid. The offender was arrested on 9 November 2017 and spent seven days in custody. I will say some more about that shortly.

4. The parties agree that the plea entered by the offender was at its earliest opportunity and that I should allow a discount of 25%. I do allow that discount. When I announce the sentences, they will be sentences where I have already applied the discount to those sentences.

THE FACTS

5. There is an agreed statement of facts which is contained at tab 5 of exhibit 1. I do not intend to repeat those facts in their entirety but rather supply a summary.

6. Police surveillance of the co-accused’s telecommunication materials revealed that the co-accused would pay money to the offender in order to store 3 4 methylenedioxymethylamphetamine at the offender’s house. In addition to storing the prohibited drugs in his residence, the offender would place the 3 4 methylenedioxymethylamphetamine powder into capsules on the co accused’s request.

7. On 9 November, 2017, police attended the offender’s residence at 8/16 18 Boyd Street, Turramurra. The offender was extremely co-operative with police. It says “and them”. It should read “and told them” that there was MDMA on the premises and he was willing to show police where it was. The offender showed police where the prohibited drugs were stored in his bedroom. The offender also directed police to the top drawer of a chest of drawers in his bedroom. In this drawer police found and seized a clear freezer bag containing 59 capsules filled with white powder.

8. In his interview, the offender advised police of the following, that the co offender would use the offender’s place for storage and it began with substances that the co-offender either started storing there for himself or to find somebody else. He also told the police that he was paid $500 for each ounce that he went - the offender was paid $500 for each ounce that he went through.

OBJECTIVE SERIOUSNESS

9. I have taken the following factors into account:

ROLE PLAYED

10. The offender was involved in storing the drugs and capping the MDMA capsules for the purpose of supply. He formed an integral part of the chain of supply. The offender’s conduct assisted in the drugs being available for actual supply.

QUANTITY

11. The offender was involved in the supply over a period of three months in the supply of 118.69 grams of the drug. The Crown quite rightly points out that the quantity of drug is a relevant consideration. However, it is not the only consideration. Such a submission is in accordance with Wong v The Queen (2001) 207 CLR 584. In Markarian v The Queen (2005) 228 CLR 357, the High Court allowed an appeal against a sentence imposed for supplying a commercial quantity of heroin accepting that the appellant’s submission that the Court of Criminal Appeal had placed too much weight emphasis on the quantity of the drug involved without regard to the facts of the case.

FINANCIAL

12. The offences were also committed for financial gain and were part of a planned and organised criminal enterprise with the co-accused. The offender was involved in serious criminality with general deterrence the major sentencing consideration.

THE SENTENCE OF THE CO-ACCUSED

13. The co-accused received a head sentence of five and a half years with a non-parole period of three and a half years. The sentencing judge found special circumstances. The Crown submits that a disparate sentence is available to me.

14. Mr Brady of senior counsel who appears for the offender submitted that disparity exists for the following reasons:

THE WEIGHT

15. The co-accused was dealt with for a commercial quantity.

ROLE OF THE OFFENDER

16. The co-accused was involved in actual supplies with an undercover operative over a lengthy period of time.

FINANCIAL GAIN

17. The co-offender had a far greater financial interest and gain than this offender in the supply of those drugs. I accept Mr Brady’s submissions and will impose a disparate sentence.

SUBJECTIVE CIRCUMSTANCES

18. Exhibit A contains a report from Mr Sam Borenstein, psychologist, dated 23 February 2019, an affidavit of Michael Williamson sworn on 21 February 2019, the father of the offender, a reference by Michael Priestly, 25 February 2019, a reference by Paul Maher 25 February 2019, a reference by Lori Kirk 24 February 2019, a letter by Samishka Moodley 26 February 2019 and a letter addressed to the Court by the offender dated 24 February 2019.

19. Mr Williamson attended the Northern Beaches Christian School between years 7 and 9, and St Leo’s Catholic College where he completed years 10 to 12. He enrolled at the Australian Institute of Music at Surry Hills to complete a bachelor of music degree. He completed his first year of studies and then deferred his studies. He commenced working in a warehouse for a few years and then at the Hornsby Inn in 2016. He holds certificates in RSA and RCG and has worked with Deluxe Media since November 2016.

20. He had difficulties with a relationship. It was the most significant relationship in his life. He had met that girl at high school. Their relationship slowly dissolved in 2016 leaving Mr Williamson increasingly depressed, against which he self medicated with cocaine. Throughout 2016 his mental state deteriorated. Mr Williamson felt confused and uncertain about the status of his eight-year relationship with his girlfriend Lauren. He reported so to the psychologist. He further reported that his mental state deteriorated with symptoms of a depressed mood, variable motivation, sleep disturbance, rumination and anxiety as to the status of his relationship with Lauren.

21. Mr Williamson was employed at the Hornsby Inn and gravitated towards a different social group which provided him distraction. He began to self-medicate with alcohol, MDMA and later cocaine, which became his preferred drug. Mr Williamson met his co-accused, Cailin Robinson, who Mr Williamson knew to be a drug dealer. Mr Williamson self-medicated with increasing amounts of cocaine, which he became increasingly reliant upon. He moved into a flat in Hornsby and agreed to store MDMA for Mr Robinson in exchange for cocaine. It is to be noted that he was also receiving financial gain from Mr Robinson for acting as a storeman.

22. He was arrested on 9 November and as I have said he spent seven days in custody. He has been compliant with bail conditions and reporting to police twice a week, and reports to his psychologist that he has been free of all illicit substances since his arrest. He currently lives in Turramurra with his parents, who are supportive, and he has been consulting a psychologist since his arrest.

23. Mr Borenstein reports that there is nothing in Mr Williamson’s history to predict antisocial or criminogenic tendencies. Mr Williamson described an ideal childhood and a positive relationship with his parents and siblings, all of whom remain supportive of him. He asserts that he has now been drug free since November 2017 and is party to a stable relationship with his current partner, Eliza. He is well supported by his parents, employer and friends, and I have gained that from reading his father’s affidavit and the references provided from the people I have listed.

PROSPECTS OF REHABILITATION

24. The offender was arrested on 9 November 2017. He spent seven days in custody. There is much to the submission made by Mr Brady that the “slamming of the gates” has broken the chain of causation. Arrest, imprisonment and swift prosecution are relevant to the concept of specific deterrence. Time in custody and what a person does thereafter assists a sentencing judge in making findings about rehabilitation.

25. The offender is drug free. He has not come under police notice since the commission of the offence. A sentencing assessment report has been provided and is dated 23 January 2019. It sets out that Mr Williamson has commenced counselling and expressed a willingness to continue with sessions as required. He has been assessed at a low risk of re-offending according to the Level of Service Inventory.

26. Mr Williamson has indicated that he realises the consequences of his offending and the impact on his victims and the community. He has expressed regret and shown a willingness to engage in rehabilitation and counselling. In his letter dated 24 February 2019 he expresses his overwhelming remorse for the offences that have brought him to Court, and he takes full responsibility for his actions that led to those charges; this shows insight. He goes on to say that he feels his actions were completely disrespectfully to his parents; that shows insight.

27. It was not until he was arrested and held on remand, and was forced face-to-face with the people and victims of drug use and abuse that he then had the insight about what his offending had caused. He is embarrassed by what he has done to his parents and their good name. He says that although heavy with guilt and remorse, the past 15 months since his arrest have been transformative and that he now lives a totally drug free life and has adopted a simple and healthy lifestyle, focusing on his work, health and family. I have formed the view that he has excellent prospects of rehabilitation.

28. Mr Brady handed up to me some statistics in relation to people dealt with for this offence, and the table indicates that 1,473 cases have been dealt with from January 2008 to June 2018. Of those cases dealt with, only 16.6% of people received an immediate terms of imprisonment. If one then extrapolates the table to take into account a plea of guilty, there were 628 cases dealt with, and those that received an immediate term of imprisonment were 6.8%.

29. I appreciated that there is limited value in regard to statistics and I have taken into account what the High Court said in Hili and Jones v R [2010] HCA 45 at [46] - [55]. However, those statistics indicate a range of sentences that are available to a sentencing judge. I have taken into account s 3A of the Crimes (Sentencing Procedure) Act 1999 which provides the purposes of punishment. It is clear that general deterrence is the major sentencing consideration in relation to this matter. Mr Brady quite rightly concedes that the threshold question in s 5 has been crossed and that a Court should sentence the offender to a term of imprisonment. I have come to the view that there is no sentence available other than a term of imprisonment.

30. The next question that comes for consideration is whether that sentence should be an immediate term of imprisonment or served by some other means. The Crimes (Sentencing Procedure) Act 1999 was amended on 24 September 2018. The purpose of the amendments was to improve the availability and nature of community-based sentencing options, to protect community safety by reducing offending, to reduce the number of offenders receiving short prison sentences and to get a greater number of appropriate offenders on community based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs.

31. In Parente v R [2017] NSWCCA 284 the full bench of the Court of Criminal Appeal held that the Clark principle that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances, is incompatible with the judicial sentencing discretion and should no longer be applied. See [101] and [108] – [110].

32. The new sentencing scheme was considered in the decision of R v Pullen [2018] NSWCCA 264. Harrison J delivered the judgment, which was agreed to by Johnson and Schmidt JJ. At [63], his Honour had this to say:

“The new statutory scheme provides some additional flexibility to sentencing judges in that it decreases the number of mandatory conditions attached to ICOs and allows the Court to impose further conditions which are appropriate in the circumstances of the particular case”.

33. At [84] he said:

“In determining whether an ICO should be imposed, s 66(1) makes community safety the paramount consideration. The concept of community safety as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone; it recognises that in many cases incarceration may have the opposite effect. It required the Court to consider whether an ICO or a fulltime custodial sentence is more likely to address the offender’s risk of re offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.”

34. At [89] his Honour went on to say:

“Community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs”.

35. I note that the offender, since his release, has been involved in stable employment and has a strong and supportive family, which is indicative of the number of people who have attended Court.

36. The Attorney General, in his second reading speech, said this:

“New s 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise required them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective in bringing about medium to long term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new s 66 requires the sentencing Court to assess whether imposing an intensive correction order or serving a sentence by way of full time detention is more likely to address the offender’s risk of reoffending”: New South Wales Legislative Assembly Parliamentary Debates (Hansard) 11 October 2017 at 2.

SENTENCE

37. I have come to the view that the sentence of imprisonment that I am about to announce will be served by way of an intensive correction order. I intend to impose an aggregate sentence and have taken into account ss 53, 53A and 54 of the Crimes (Sentencing Procedure) Act.

38. In relation to count 1, I impose a sentence of two years. In relation to count 2, I impose a sentence of one year, which is cumulative upon the sentence I have imposed in count 1. So there will be a total effective sentence of three years. I have indicated what the indicative sentences are during the course of these remarks. I will make the following orders:

39. Mr Williamson, you are convicted. As I have said, I sentence you to two years in relation to count 1, one year in relation to count 2. I make the sentence in count 2 cumulative upon the sentence in count 1. So there is a total effective sentence of three years.

40. That aggregate period of imprisonment of three years is to be served by way of an intensive correction order commencing on 1 March 2019. The intensive correction order is subject to the following conditions:

1. The offender must not commit any offence;

2. The offender must appear before the Court if called upon;

3. The offender must perform 500 hours of community service work;

4. The offender is to abstain from consuming drugs.

5. The offender must submit to supervision by a community corrections officer.

6. The offender is to report to the Hornsby Community Corrections office within 7 days.

7. Not to use any drugs proscribed under the Drugs Misuse and Trafficking Act 1985 (NSW)

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Decision last updated: 25 March 2019