R v Windley

[2022] NSWDC 304

District Court

New South Wales

Medium Neutral Citation:

R v Windley [2022] NSWDC 304

Hearing dates:

22 July 2022
28 July 2022

Date of orders:

28 July 2022

Decision date:

28 July 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

1. Of the offence under section 25A(1) of the Drugs Misuse and Trafficking Act and the offence under section 74 of the Firearms Act the offender is convicted.
2. Taking into account the matters on the form 1 and noting the indicative sentences after applying the 25% discount for the pleas of guilty, the offender is sentenced to a non-parole period of 2 years and 10 months commencing on 29 December 2020 and expiring on 28 October 2023 with a balance of term of 17 months expiring on 28 March 2025.

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Hoon 2000 NSWCCA 137

Category:

Sentence

Parties:

Regina (Crown)
Windley (Offender)

Representation:

Dubiniecka Solicitor for the NSW Director of Public Prosecutions
Cranney Counsel for the Accused

File Number(s):

2020/00369001

Publication restriction:

Unrestricted

JUDGEMENT 

1. Nathan James Windley appears for sentence on two charges. The first charge is brought under section 25A(1) of the Drug Misuse and Trafficking Act 1985, that the offender did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug namely crystalline-methylamphetamine for financial or material reward. In respect of that matter there are 12 further matters to be dealt with by way of the Form 1 procedure. Nine of those charges are of supplying a prohibited drug namely crystalline methylamphetamine and one of being knowingly take part in the supply of that drug in the same period that the section 25A matter occurred, as well as two further charges, one being acquiring firearm ammunition in contravention of a prohibition order and the other matter of dealing with certain property where there are reasonable grounds to suspect the property was proceeds of crime.
2. The maximum sentence for the section 25A offence is 20 years imprisonment and all 3500 penalty units. There is no standard non-parole period. In respect of the supply offences on the form one the maximum sentence is 15 years and or a penalty of 2000 penalty units. The maximum sentence for the proceeds of crime matter is three years and the ammunition charge has a maximum sentence of 5 years.
3. The second charge on the indictment is attempting to acquire a firearm when a prohibition order is in place in breach of section 74(1) of the Firearms Act. In respect of that matter there is a maximum sentence of 14 years if the firearm is a pistol or prohibited firearm, or 5 years in any other case. There is no standard non-parole period.
4. I take the maximum sentences into account as a legislative guide as to the seriousness of the offending and to assist in arriving at the appropriate sentence.
5. In regards to the form one procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.
6. All of the offending apart from the ammunition charge on the Form 1 and the proceeds of crime charged on the Form 1 occurred in the period 18 September 2020 through to 2 October 2020.

Facts

7. The facts of this case are very serious as the maximum sentences involved suggest. Without minimising the seriousness of the offending the facts can be stated shortly. The section 25A offence is made up of nine occasions of supply between 18 September and the 2 October 2020. Each of those nine occasions either by way of a telephone conversation or SMS message the offender agreed to supply amounts of methylamphetamine in quantities ranging from 3 ½ g to 14 g for prices ranging from $700-$6000.  The facts recount brief conversations reflecting the agreement to supply, and include the offender saying words to the effect that it was easy for him to get the drug requested; eg supply 1 re “a half”, which given the price of $6000, I infer is a refers to half an ounce, or 14g, a conclusion supported by supply 7, which was that price for that amount.  The conversations also show that those being supplied by the offender intend to on supply the drug; see eg supplies 2 and 9.  The total of the drugs so supplied was 54.25g, which does not account for the unstated amount of supply 8.
8. The point made by the offender is that the agreed facts state for each supply that the offender “agreed to supply”, so that it meets the definition of supply under the Act but should be viewed as of lesser seriousness because it does not reflect the actual supply of the drug.
9. The Crown says the more serious situation of the supply actually occurring is made out on the facts. In particular the Crown relies on the fact that in the 14 day period of 18 September to 2 October the offender received 23 payments from 11 different people into his bank account totalling $8520.  At that time the offender was in receipt of jobseeker payments and had no other identified sources of income to explain such payments. In addition the Crown relied upon by recorded telephone call of 20 October. The gist of that conversation is that it shows the offender aggressively seeking money from a person for drugs that he has supplied to that person. The date of the conversation places the outside of the dates of the offending. It nevertheless provides a good insight into the determination for the offender to receive payment for having supplied drugs.
10. Furthermore the offender gave evidence. In his evidence in chief he was asked what he did with the money that he received from selling drugs and said he used it to buy more drugs. He said he sold drugs so he would not have to pay out of his own pocket.  Without being specific to the supplies in question, it is clear the offender is a supplier of drugs whose practice is to make good the initial agreement to supply.
11. In cross examination the offender said he sold drugs at a premium during Covid because of the border closures and he was able to source it from Queensland. The premium reflected the difficulty in doing that with the border closed. He also agreed to selling on tick values allowing credit.
12. This evidence as to a premium may not directly relate to the particular 18 occasions of supply relevant to firstly the section 25A offence and then the Form 1 matters.  It does however give further evidence of his practice.
13. It is with respect fairly clear that at the same time as the offender was agreeing to sell the drugs in question he was receiving payments. It is also clear from his own evidence in chief that he sold drugs in return for money and transactions were completed.
14. The evidence of payment in the offending period stops short of total payment for the drugs in question with the respective figures being approximately $8500 and $26,000.  The $8500 figure reflects on ly payment by electronic transfer.  There may well have been, and in my view most likely was, payment by other means, including cash to account for the difference. Nevertheless I am conscious of the need to be satisfied beyond reasonable doubt of the completion of the supply to sentence on the more serious basis. The approach I take is to consider that the supply charges for both the indictment matter and Form 1 matters have been affected by the agreement to supply and by actually supplying in approximately equal measure.  That is, I am satisfied, based on the above evidence, beyond reasonable doubt, that the agreements to supply set out in the facts were completed by payment on at least one half of those occasions of agreement.  Juries are routinely told to apply their common sense, and I direct myself to that effect here, and together with the evidence just referred to, reach that conclusion.
15. Of course the issue is not as to whether the offence is committed but the manner in which the elements of the charge have been made out. The above finding will be taken into account in assessing the objective seriousness of the offending.
16. The method of the offending was the same for the Form 1 matters of supply.  The conversations again show the offender to have a ready source of methylamphetamine to access for supply; eg see sequence 7.  The facts refer to the cost of the drug being supplied, more than the quantity; on the 4 occasions quantity is mentioned the amounts are  .5g, .1g, .5g and .2g.  These are much smaller amounts than for the primary offence, and indicate the role of the offender as a street dealer, rather than being further up the supply chain supplying on suppliers, which is established by the earlier facts.  In other words, the offender is both a street dealer, and also a person able to provide larger amounts to other street dealers, or on suppliers.
17. The remaining Form 1 matters occurred when police searched the offender’s residence on 18 December 2020 and located one round of shotgun ammunition and two gold coloured rounds of ammunition. One round had been loaded into a barrel. The offender admitted possession of the ammunition. The final Form 1 matter related to 29 December 2020 when the offender was arrested and searched and found to have in his possession $1058.75. It is admitted that that is reasonably suspected of being from the sale of drugs.
18. The facts relating to the firearms offence on the indictment are based on a phone conversation involving the offender asking for something which the evidence showed was a 12 gauge. The offender asked what the price was and was told $1000-$1200.  The accused had been served with a firearms prohibition order on 13 April 2018 prohibiting him from acquiring firearms.
19. In cross examination the offender was asked why he was sourcing a firearm and said “I like firearms”. In cross examination he was asked what was it that he liked about firearms and he said he “liked shooting stuff”.  When asked for what purpose he said “I don’t know. Probably protection”.

Objective seriousness

20. The s25A offence is directed to the business operation of supplying prohibited drugs. It is those features that determine its objective seriousness; see R v Hoon 2000 NSWCCA 137; it should also be noted the offence directed to repetition as well as organisation and system. The quantity of each supply is not irrelevant.
21. In this case there are nine occasions of supply within 14 dayswhen the offence is made out by three supplies in 30 days. The quantities are in the main above street level quantities.  That said, the quantity overall is approximately 55g, which is a factor supporting a less serious case.
22. Just what the business structure of the offender is is difficult to state precisely. It can be said it was fairly rudimentary with the communications occurring by seemingly open phone and SMS messaging. The drug is required to service the customers were able to be obtained quickly if not already available.  As referred to above, the role of the offender is of someone, for the primary matter, above the street level dealer.
23. In my view this would be below mid range, the position adopted by the Crown with which I agree.
24. In terms of the firearms offence this attempt was happening at a time when these ongoing supplies were occurring. Beyond that the offence is made out by sufficient facts to make out its elements. It is a gravely serious offence; the legislation's purpose is to achieve a community with an absence of guns. I would place this in the low range of seriousness.  However given the stated aim of the offender is to have such a weapon for protection, which I infer is a reference to assistance in his drug supply activities, I would place it just below the mid range.
25. The Crown submitted that the offending was aggravated by the criminal record of the offender, the fact it was part of planned or organised criminal activity and that it was committed for financial gain.  I deal with the impact of the previous criminal history below but in my view that should be viewed not as an aggravating feature but one that might see a need for greater emphasis on deterrence. As to planning or being organised in my view it is obvious that this is fairly well organised due to the frequency of the supply and the ready availability of product as suggested by the evidence but in my view the organisation and planning here is what might be expected for this offending, and is not aggravated in the way envisaged by section 21A(2)(n).  As to being committed for financial gain I accept the submission of the accused that financial gain of the type evidenced here is considered part and parcel of offending of this type.  There was in this regard the evidence of the offender himself of possessing a Rolex watch and two Mercedes cars.  Superficially that suggests success and profitability in the drug trade. However, that the offender may own two motor vehicles which by some are considered to be a prestige brand does not without more show them to be of great value. As to the Rolex watch nothing was established other than that the offender owned one. Again common sense would suggest that that is a flashy bauble obtained from his illegal activities but there are other possibilities and there is no evidence of value.  As a result these assets do not change my conclusion.

Subjective Case

26. It is agreed that the offender is entitled to a 25% discount for his early plea of guilty.
27. The offender relied on a psychological report dated 9 May 2022. At paragraph 5 it sets out a summary of his criminal history as shown in exhibit A. The first offending occurred at the age of 18 in 2004 and his early charges were for driving drug and weapons offences. There was a period of not offending between 2008 and 2015 in New South Wales however he would appear to have lived in Western Australia for a time and there was some minor offending in Western Australia in that period.  From 2015 to present his offending has been regular including for offences relating to driving, drugs, disorderly conduct, fraud, breach of bail, harassment and violence.  I note that there is only one earlier offence of supply which was in 2008.
28. The regularity of offending since 2015 is evidence to suggest there is an unhealthy disregard for the law by the offender.  This view was added to by his demeanour in giving evidence. In my view his answers that he sought out the firearm because he liked firearms was flippant and gave me the distinct impression that he considered the proceedings something of a joke. He was also asked if he owned a Mercedes car and answered “yes two of them” which seemed to be an answer if not flippant, then reflecting a total lack of insight into his predicament.  At the same time it must be said that the answer was against his interest as was his answer already noted when he admitted he was seeking a firearm probably for protection.
29. The offender gave evidence that what he had told the report writer was true and also adopted his affidavit which had not been sworn in written form. He said in his interview with the report writer that he was using about 3.5 g of methyl amphetamine each day of the time of the offending. He said he was suffering depression from being separated from his children from around 2016 and concerned about his current partner’s drug use and concern for his own safety having been attacked by somebody with a machete in December 2020.
30. He made statements to the report writer that he knew his actions were wrong and the drugs ruined families. He expressed regret which the report writer considered appeared to be genuine and sincere. He said he was sorry and a bit embarrassed and ashamed and would not do it again. He said he wanted to be a better person for his children.
31. Since being in custody since late 2020 he has been completing a tertiary preparedness program and has also had a job with waste management. He says he has been exercising and feels okay and has had regular access to his loved ones. He said he had been abstinent in custody.
32. The history of the offender is that he was born in Murwillumbah in 1996. He got along with his mother but not with his father who was an alcoholic. He was exposed to domestic violence involving his parents yelling and hitting each other. He reported being sexually abused by a teacher and a young age firstly by a teacher on two occasions and also by a male cousin.  The offender left his home to live with an aunty at about 13 or 14 years old. He seems to have left school sometime in the seven though completed through schooling at TAFE and also the certificate three in engineering.  He has worked as a trade assistant with boiler making, car bodybuilding and concreting.
33. The offender tried cannabis when eight years old and continued on a weekly basis till age 16 when he was using it on a daily basis and stopped at 23.  He used drugs including heroin speed and ecstasy but not habitually.  It was when he was 28 he began regular use of methylamphetamine which coincides with the increased frequency of his offending in 2015.  He started binge drinking in his late 20s but then stopped after a year.  He attended rehabilitation in 2017 but was not motivated to stop using substances at that time.
34. Testing was carried out for neurological assessment, with the results tending to be no better than average.
35. The findings of the psychologist were the offender was not intellectually disabled or cognitively impaired but had some weaknesses with verbal skills and executive thinking. The offending is driven by substance abuse primarily. The substance abuse began most likely the self-medication to manage his distress at the home circumstances and his sexual abuse. The risk of recidivism was put in the high moderate range.
36. The emphasis for intervention is placed on the need to treat the substance abuse.
37. By his affidavit the offender gave evidence consistent with the history just recounted. He says he has been around drugs in his whole life. I note he went to Western Australia in 2006 but fell back into the drug lifestyle at some point,  I infer when in WA. He refers to his children being placed in care in 2015, which is about the time he started using ice consistently. He recalls his childhood and his father drinking each day and “smacking him around” and he saw the same occur to his mother. He sets out that in custody he has been in protective custody making his time in custody more onerous due to the restrictions that go with that.  He also refers to the lockdowns suffered due to Covid asserting there was a lockdown of 36 days and 14 days. He says he has plans for the future wanting to pursue tertiary education. He wishes to rehabilitate for the benefit of his 14-year-old son.
38. His sister also provided an affidavit which corroborates the offender’s background and attesting to the support she will give him upon his release.
39. The findings I make concerning this evidence is that the offender has had an upbringing of disadvantage. There was sexual abuse at school and the domestic violence and drinking at home by his father. The unchallenged evidence is that he has been using one substance or another since the age of eight. As a result the offender will be considered as not being as morally culpable as he may otherwise have been. I note however the comment of Justice Simpson in Millwood at paragraph 68 that circumstances such as those here do allow for leniency, but it may only lead to a limited benefit to the offender. In other words, and in my view this applies to this case, there is a significant role for deterrence to play in this case albeit less than would otherwise be the case absent that history.

26. In my view apart from the leniency that arises due to the offenders background the offender’s subjective case is poor. It cannot be said that the injury or damage is not substantial; on my findings significant amounts of very damaging drug were reaching the community. Nor could this offending be said to be not planned.  As already noted his criminal history does not assist him. Indeed this is a case where it could be strongly argued that his record shows such a disregard for the law that requires some sterner sentence to reflect a heightened need for deterrence. I note however that this is only the second occasion of a supply offence and whilst I find there is some need for greater deterrence due to his pattern of offending the added weight for deterrence will be modest and not such as would outweigh the benefit to the offender of his disadvantaged background.  I am conscious also of the need to ensure proportionality.
27. The psychological report concludes that the risk of recidivism is in the high moderate range. I accept that assessment. I note the reference to the offender in 2017 unsuccessfully attending rehabilitation because he was not then prepared to stop using drugs. It was in 2015 or 2016 (the date varies in the material) that his children  were taken into care. He relies on a motivation to return to his children in this present case for his likelihood to change his ways. There is no evidence as to why that motivation is greater now than then other than the passing of time.
28. I hesitate to place too much emphasis on the unfavourable impression made by the offender in the witness box given his relatively brief time of giving evidence, however the opportunity to assist his case was certainly not taken. The evidence is of a past failed attempt at rehabilitation, persistent offending now for some 7 years which is clearly related to his substance abuse, and involvement in very serious crime extending to the need for weapons as protection. His conduct in custody does support the view that he has some better intentions, which I find more persuasive than the offender’s statements to that effect.
29. Any assessment of his likelihood of reoffending would need to concur with the psychologist in my view and furthermore his prospects overall are highly dependent on overcoming his substance dependency. The evidence overall in that regard does not indicate that those prospects are good.
30. That said I would note here that conditions in custody are presently and are likely to remain for some time onerous due to the Covid pandemic, and I also take into account the offender being in protection, which I accept is more onerous. 
31. There is a clear need for an extended period of supervision to assist in dealing with substance abuse. There is also a need to address the trauma following on from the childhood sex abuse. There will therefore be a finding of special circumstances.
32. There were expressions of remorse made to the report writer and there was no meaningful challenge to it and I allow for the fact that he is remorseful to an extent that allows him some mitigation.
33. It was agreed that any term of custody should commence from when the offender went into custody which was 29 December 2020.

Sentencing considerations

48. The purposes of sentencing are as follows:
    1. To ensure the offender is adequately punished
    2. To prevent crime by deterring the offender and others from committing similar offences
    3. To protect the community from the offender
    4. To promote the rehabilitation of the offender
    5. To make the offender accountable for his actions
    6. To denounce the conduct of the offender
    7. To recognise the harm done to the victim of the crime and the community
49. In this case it is the purposes of deterrence and the protection of the community which should be emphasised. The need to promote rehabilitation also needs to be recognised. The sentence however should be weighted towards the former rather than the latter. I reach this conclusion due to the sheer frequency of the drug dealing occurring and the offender’s criminal history and less than promising prospects.  That of course may point to a need to make greater efforts to achieve rehabilitation but he has on his own account decided previously not to engage in rehabilitation at a time when his motivation to do so, namely his children was as present then as it is now. By no means should this be interpreted as a disregard for the need of rehabilitation; the indicated finding of special circumstances indicates it is recognised, and it will be a sentence that reflects the need for both general and specific deterrence and the need to protect the community tempered by the lesser moral culpability discussed above.
50. There is no suggestion that in this case there was any other more appropriate sentence than a term of full-time imprisonment.
51. I propose proceeding by way of an aggregate sentence. In respect of the section 25A offence there are the many Form 1 matters.  The supply matters on the Form 1 each have a maximum sentence of 15 years.  Yet any resulting harsher sentence must still reflect proportionality of the principal offence. Taking into account the Form 1 matters and before the application of the 25% discount the sentence is 5 years so that after the 25% discount term is three years and nine months.  In respect of the attempt to acquire a firearm charge, there was no evidence or submission from any party as to whether it was a prohibited weapon, with the resultant higher maximum sentence.  It does not appear to meet the definition of such a weapon in the schedule to the Act, and so I proceed on the basis of the lesser maximum sentence of 5 years.  The indicative sentence for that offence is 16 months before the discount and one year after the discount.
52. I note that both charges arose out of the same course of conduct in the same period of time which justifies a certain degree of concurrency though the discrete nature of the two types of offending also requires that the sentence reflect that fact.
53. The aggregate sentence I arrive at 4 years and 3 months. The non-parole period will be 2 years and 10 months.

Orders

1. Of the offence under section 25A(1) of the Drugs Misuse and Trafficking Act and the offence under section 74 of the Firearms Act the offender is convicted.
2. Taking into account the matters on the form 1 and noting the indicative sentences after applying the 25% discount for the pleas of guilty, the offender is sentenced to a non-parole period of 2 years and 10 months commencing on 29 December 2020 and expiring on 28 October 2023 with a balance of term of 17 months expiring on 28 March 2025.

Decision last updated: 01 August 2022