R v Wilson

[2018] NSWDC 162

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Wilson [2018] NSWDC 162
Hearing dates:	20 April 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for 5 years with a non-parole period of 2½ years. Drugs are to be destroyed.
Catchwords:	CRIMINAL LAW – Sentence – Supply commercial quantity of gamma-Butyrolactone – GBL – Offender suffers from a number of psychological conditions - Discount for way trial was run efficiently.
Category:	Sentence
Parties:	The Crown Peter Raymond WILSON
Representation:	Counsel: Ms J Hopper (Crown) Mr G Stanton (Offender)   Solicitors: Director of Public Prosecution (Crown) Toomey Lawyers (Offender)
File Number(s):	2015/109340

SENTENCE

1. HIS HONOUR: After a short trial involving only two days of evidence, much of it not in dispute, a jury convicted the accused Peter Raymond Wilson of an offence of supplying a commercial quantity of the drug gamma‑Butyrolactone also known as GBL.

2. The offender and two women were staying at a hotel near Wynyard in the city. They wanted to extend their stay but as their original room was no longer available they had to move rooms. After they did so, and when their original room was being cleaned one of the housekeepers discovered a toiletries bag had been left behind. In it were found drugs and drug paraphernalia. Accordingly police were called. They began investigations into, and surveillance of, the offender.

3. On 13 April the hotel manager went to the new room. The offender was in that room and appeared to be alone. The manager asked him to leave the hotel because of what had been found in the previous room. The offender said that he would comply with that request and said “I’ll start to pack”.

4. Later that day the hotel porter removed a significant quantity of luggage from the room and took it down to the lobby. The offender was seen to be in possession of two suitcases with wheels on them and one laptop bag. He asked for a taxi to be called for him but this proved difficult. Eventually the offender left the hotel pulling the two suitcases, one of which had the laptop bag on it, and he began walking down the road.

5. Police who had been watching him approached. They asked him to stop and told him that they were going to search his bags. The offender co‑operated. In one of the bags, which contained only male clothing, police found two wine bottles. The seals on both wine bottles had been broken and indeed one of the screw caps did not match the bottle it was on. One bottle was almost full but the other was not. Police believed there were drugs inside the wine bottles and they arrested the offender. He exercised his right to silence, although he had earlier said to the police who arrested him that he had not packed either of the bags he was pulling. Later analysis revealed that the liquid inside both bottles contained the drug GBL, the weight of the liquid being slightly over 1 kilogram.

6. By their verdict the jury clearly found the offender was in possession of the drugs, that he knew they were in the bag he was pulling and that he knew there was a real chance that they weighed more than 1 kilogram. I am to sentence the offender on the basis that he had all of those drugs in his possession for the purposes of supplying them.

7. The offender is a 53 year old man with no relevant previous convictions. His background was made known to me by the tender of a psychological report prepared at the request of Mr Wilson’s lawyers.

8. Mr Wilson is now 53 years of age. When he was much younger he lived in a family which suffered from the circumstance that his mother suffered from schizophrenia. She was hospitalised on regular occasions. The offender’s father worked hard and often in order to provide payments for all the bills that the household incurred. Although his mother has been well for some significant period of time it is undeniable that Mr Wilson’s background when his mother was ill, and his father had to work to pay the bills, was far from ideal. Nevertheless Mr Wilson managed to achieve a significant amount. He decided not to go to university when he finished his HSC and began working, firstly for someone else and then he opened a number of successful businesses. At the time of his arrest he was the proprietor and sole operator of four successful early learning centres named Little Bright Stars. After his arrest, not surprisingly, those businesses went into liquidation.

9. Although Mr Wilson has had some success at work and in business, the same cannot be said about his personal relationships. Mr Wilson told the psychologist that he has always struggled to make deep and meaningful connections with people. No doubt continuing to the problems that he has in relating to other people are his alcoholism and his addiction to gambling. It is not surprising to learn that those conditions had an impact on his relationships.

10. Mr Wilson began to drink at an early age, at around the age of 15. Partly or perhaps more than partly that was due to the fact that his mother was often hospitalised and his father was working hard. Mr Wilson has treated the short term benefits of consuming alcohol and gambling as ways of numbing his mind and escaping his reality, although he recognised that what he was doing had long term consequences. He was unable to defer the gratification which the short term benefits of alcohol and gambling provided him.

11. The psychologist formed the opinion that Mr Wilson now suffers from a number of psychological conditions: A generalised anxiety disorder; a major depressive disorder; a severe alcohol use disorder; and a severe gambling disorder. Not surprisingly Mr Wilson’s depression has got worse since he was returned to custody after the jury found him guilty and I refused him bail as Mr Stanton was unable to show cause as to why his client was entitled to be at liberty awaiting sentence.

12. There is no opinion expressed by the psychologist, or any other evidence, which would suggest that the offender’s decision to become involved in serious drug supply was in any way related to any of the conditions from which he suffers. On the other hand it is undeniable that Mr Wilson will do his time in custody harder than most other people because of the major depressive disorder from which he suffers.

13. As I have noted, the trial was a relatively short one. At least part of the reason for that was that the accused agreed to the evidence being presented in an efficient way. For example rather than calling surveillance police to give evidence of what they saw, their observations were conveyed to the jury through the officer-in-charge. I have taken into account the offender’s co‑operation in determining the sentence I will impose upon him.

14. It is trite to say that possessing a commercial quantity of drug for the purpose of supplying it is a serious offence. There is a paucity of evidence about such things as the offender’s role which make it difficult to go beyond that assessment. I note that the quantity involved was barely beyond the 1 kilogram cut off for commercial supply GBL, and there is a suspicion, perhaps even a likelihood, that the two women who shared the accommodation with the offender were in some way involved in the offence. Beyond that it is difficult to say more.

15. On sentence the Crown tendered a document which suggests that the value of the GBL Mr Wilson possessed for the purposes of supplying was somewhere in the order of $2,000 to $ 5,000. As I said to Mr Stanton when that document was tendered I would have expected that most commercial quantities of drugs were more valuable than that.

16. The maximum penalty for this offence is imprisonment for 20 years. It has a standard non-parole period of ten years. I will take into account both the maximum penalty and the standard non-parole period in determining the sentence to impose upon Mr Wilson. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.

17. The Crown suggested that a number of aggravating features were present but upon analysis I find that the features the Crown refers to were part and parcel of the offence for which the offender is to be sentenced. Some financial gain for example is to be expected in almost every case of possession for commercial drug supply.

18. The Offender did not plead guilty of course. He is not to be punished for that but he does not receive a discount on his sentence for any utilitarian value that a plea of guilty would have. Although I note, as I have already said, that he is to receive a discount on sentence which I will not quantify because of the way in which the trial was conducted. What could have been a much longer trial was reduced in length because of his co‑operation.

19. Objectively the offence is below the mid-range of objective gravity of commercial drug supplies. The major reason that I make that finding concerns the quantity. As I have said, perhaps more than once, the quantity involved was just barely into the commercial quantity range. On top of that is the value of the drug which again as I have already noted was less than I would have expected for commercial quantities of other drugs.

20. Mr Wilson has now served two discrete periods of custody. He was bail refused upon his arrest but eventually granted bail. Another period of custody started after the jury’s verdict. In order to reflect his pre‑sentence custody I will date the sentence I will shortly announce from 15 November 2017.

21. Mr Stanton submitted that there was no suggestion that the crime that Mr Wilson committed was part of an ongoing enterprise and I accept that submission immediately. What I do not accept is Mr Stanton’s submission that a sentence to be served by means of an Intensive Corrections Order or suspended sentence is appropriate. The sentence I will ultimately impose upon Mr Wilson is significantly longer than the two year cut off which will allow an alternative to full time custody. Nor do I accept Mr Stanton’s submission that the offender should be released in the near future, depending of course what “the near future” means.

22. The standard non-parole period is a guide to the sentence which should be imposed upon commercial drug suppliers. Parliament has made it clear, both through the maximum penalty and the standard non-parole period, that those who do engage in commercial drug supply by being in possession of drugs for the purposes of supplying them are committing very serious offences. It is notorious that drugs cause enormous harm, both to the consumers of them and also to the community generally. For that reason a substantial sentence of imprisonment must be imposed upon Mr Wilson.

23. There are special circumstances in this case. It is no longer the law, if it ever was, that the mere fact that a person is serving their first time in custody amounts to a special circumstance. However taking that factor into account together with the significant psychological problems that Mr Wilson is experiencing I am satisfied that special circumstances have been demonstrated such that the offender is entitled to an extended period upon parole at the expense of his non-parole period. I impose sentence as follows.

24. I set a non-parole period of two and a half years and a head sentence of five years to date from 15 November 2017. The non-parole period will expire on 14 May 2022 on which day Mr Wilson is eligible to be released to parole.

25. If the drugs haven’t been destroyed they are to be destroyed.

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Amendments

25 June 2018 - Spelling correction in para[20]

Decision last updated: 25 June 2018