R v Winters

[2021] NSWDC 792

District Court

New South Wales

Medium Neutral Citation:

R v Winters [2021] NSWDC 792

Hearing dates:

10 November 2021

Date of orders:

10 November 2021

Decision date:

10 November 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

An aggregate term of imprisonment of three years and one month with a non-parole period of two years: at [32].

Catchwords:

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Objective seriousness

SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness — Special circumstances

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

R v CBK (2002) 135 A Crim R 260

Parente v R [2017] NSWCCA 284

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Mark Winters (Offender)

Representation:

Ms K McCrossin (Solicitor, Office of the Director of Public Prosecutions)

Mr J Moffett (Counsel for the offender)

File Number(s):

2020/152311

Judgment

1. Mark Winters, a 61 year old Aboriginal man, appears for sentence on three counts. He pleaded guilty, in circumstances justifying a 25% discount on any term of imprisonment. He has been in custody since his arrest on 21 May 2020 and it is acknowledged by Mr Moffet of counsel that full time custody is appropriate in the circumstances, and that the sentence should commence on that date.

2. The first count (sequence 2) is supplying 330 grams of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.

3. The second count (sequence 22) is an offence contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 of supplying prohibited drugs on an ongoing basis. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. That offending involved 38 supplies totalling 157 grams of methylamphetamine.

4. The third count (sequence 25) is knowingly allow a premises to be used as drug premises contrary to s 36Y(1)(a) of the Drug Misuse and Trafficking Act 1986. The offence carries a maximum penalty of 12 months imprisonment with no standard non parole period.

5. There are five matters to be dealt with on a Form 1 attached to the second principal count (sequence 22), that is the ongoing supply, namely:

1. Sequence 1 – Possess prohibited drug (1.18g methylamphetamine)

2. Sequence 3 – Supply prohibited drug (69.5g methylamphetamine)

3. Sequence 4 – Possess prohibited drug (2.5g gamma butyrolactone)

4. Sequence 5 – Possess prohibited drug (0.7g cannabis)

5. Sequence 24 – Recklessly deal with proceeds of crime ($1065)

6. The cash which is the subject of sequence 24 will also be dealt with pursuant to a forfeiture order, by consent.

7. The Form 1 matters, as the Chief Justice said in the guideline judgment (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146), require greater weight to begiven to personal deterrence and the community’s entitlement to extract retribution for serious offences while, at all times, the focus remains on the principal offence. As the Crown submits here these Form 1 matters operate to increase the sentence to be imposed for the principal offence to a modest degree.

8. The maximum penalties and where applicable a standard non-parole period are, of course, important yardsticks in the sentencing process and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account.

9. The agreed facts cover an investigation into the supply of methylamphetamine in the Queanbeyan area. Police conducted surveillance of Winter’s residence in March 2020. They identified calls between Winters and his co-offender Tara Stephens‑Biles, who was sentenced by me earlier in the year. They discussed the purchase and sourcing of methylamphetamine and cannabis. The telephone intercepts reveal that they would each purchase methylamphetamine, and in the case of Stephen-Biles, also cannabis from upline suppliers for the purpose of supply. Stephen‑Biles would hire vehicles and travel to collect the prohibited drugs.

10. The offender rented a bedroom and sunroom in the area in the rear of a house at Queanbeyan and between 17 April and 6 May. A number of people visited the residence for the purpose of purchasing prohibited drugs and that’s the basis of the s 36Y count (sequence 25).

11. As to the second principal count (sequence 22), it involved supplying between 17 April and 10 May 156 grams on 38 occasions for a financial reward. It's unnecessary to cover the detail of each individual supply.

12. The first principal count (sequence 2), the supply of 330 grams of methylamphetamine is the same offence for which Stephens‑Biles was sentenced. She was apprehended on 11 May in a rental car with a large quantity of cannabis leaf, the subject of a separate charge, and also the 330 grams of methylamphetamine. Winters and Stephen‑Biles had already made arrangements for the supply of the methylamphetamine. Winters had telephoned a person, told him that Stephen‑Biles was coming and he said the price for 1 ounce would be $4900. Winters arranged for Stephen‑Biles to meet the man at Eaglehawk. It would appear that Winters was directing the operation.

13. On 21 May 2020, Police stopped Winters’ car at Queanbeyan and they found $1065 in cash on him and a small quantity of methylamphetamine. On searching his premises they found the other materials which are the subject of the Form 1 matters.

14. He was not interviewed.

15. He has a lengthy criminal record that I will come to.

16. He gave evidence today adopting the history given to a psychiatrist Dr Dayalan and confirmed the current difficult circumstances of his parents. He said that he was remorseful for what he had done, and he acknowledged under questioning from the Crown Prosecutor that his primary purpose in engaging in the supply of prohibited drugs was to make money, but also, obviously, to provide for his own drug addiction.

17. I have a letter from Your Story Disability Legal Support in which he’s recorded as expressing the cathartic nature of talking about about his childhood sexual abuse has had for him and how he is working to address those traumas.

18. There is very little in contest between the very comprehensive written submissions prepared by the Crown and by Mr Moffet of counsel for the offender who has helpfully acknowledged agreement with most of the important aspects of the Crown’s submissions, with the exception of the assessment of objective seriousness of the ongoing supply offence. Mr Moffet submits, and I accept, that it was not above mid-range as the Crown submits but around mid‑range. I say that bearing in mind his role engaging in persistent, repetitive organised and effective retail distribution operations. His role was to directly source methylamphetamine from the upline supplier and he did so on three separate occasions. He used Stephens‑Biles to collect the drug and relay the purchase money and then he on supplied it to his customers. The was a significant quantity involved, namely 156 grams which is higher than threshold amount for an indictable quantity. As to frequency the supply was on 38 occasions over the relevant period. There is no evidence as to the purity of the drugs.

19. As to the individual supply (sequence 2), it is clear again that he acted on his own behalf and directly sourced and negotiated the purchase of a large quantity of methylamphetamine from an upline supplier. Again, he directed his co-offender Stephen‑Biles and liaised with the unknown purchaser. The quantity involved was 80 grams which is higher than the threshold amount for a commercial quantity but less than large commercial quantity. The purity was between 73- 75%, again clearly for financial gain and had it not been seized it would undoubtedly have been disseminated into the local community in Queanbeyan.

20. It is acknowledged that as an aggravating factor his record of previous convictions. In terms of mitigating factors his plea of guilty and additionally I accept his expression of remorse today.

21. Notwithstanding Mr Moffet’s initial submission that sentences for sequences 2 and 22 should be wholly concurrent for the simple reason that the course of conduct occurred over a defined period of time, I accept the Crown’s submission that there should be a degree of accumulation, bearing in mind the questions of totality given that there are two separate episodes of criminality involved and the sentence for one could not comprehend the criminality of the other.

22. As to his criminal history it is helpfully summarised in the crown bundle as demonstrating a continued attitude of disobedience to the law and thus retribution, deterrence and protection of society are important factors. The record of custodial sentences commences in September 1999 with a sentence of 12 months for knowingly take part in the supply of prohibited drug and two years and six months for knowingly take part in the supply of a commercial quantity. In September 2007 he was sentenced to two years and ten months for supply prohibited drug. In July 2014 he was sentenced to six weeks imprisonment for three counts of possessing prohibited drug. In July 2018 he was given a s 10 bond on the condition he participate in drug counselling for drug possession offences. In March 2019 he was given a 12 month good behaviour bond for driving with a prescribed drug in his oral fluid or blood and a 12 month good behaviour bond for possess a prohibited substance. He also served a nine month term of imprisonment, suspended, for a trafficking in a controlled drug.

23. The subjective considerations have been helpfully summarised from the report of Mr Dayalan. As I have indicated he’s a 61 year old man, identifying as Aboriginal. He has four children and 16 grandchildren. His parents are alive but in poor health. His father has dementia and is in a full time care facility. His mother lives alone and significantly relied upon the offender before his detention.

24. He was the subject of horrendous and sustained sexual abuse for a number of years at the hands of who he described as his favourite uncle who also introduced him to alcohol at a very young age.

25. He has a significant drug and alcohol history, a diagnosis of alcohol stimulant and opiate use disorders. His longstanding criminal behaviour is directly related to his alcohol and drug abuse and his attempts at rehabilitation have not been successful in the past but he has expressed a desire to engage in long‑term residential rehabilitation. Given the extensive nature of his substance use history he has attended the remand addictions course and his prospects of a successful engagement in rehabilitation would be improved if he received simultaneous psychological treatment to reduce the effect of early childhood trauma and his current mental state.

26. His incarceration will be more onerous than a standard or average prisoner given his limited access to long term psychological treatment, sense of guilt associated with not caring for his elderly parents and challenges to availing treatment for his physical health conditions within the correctional environment, particularly given the evidence which is daily produced in these sentencing courts as to the effects of the COVID pandemic at present.

27. I accept Dr Dayalan’s view should he be admitted to a residential rehabilitation facility, that an extended parole period allowing for some supervision and support during transition from the rehabilitation facility into the community would be of assistance and would justify a finding of special circumstances.

28. As to the co‑offenders, Stephen‑Biles was sentenced to an aggregate term of imprisonment of two years and three months to be served by way of intensive corrections order. The co-offender, Trent Stevens, was sentenced for taking part in the supply of 168 grams of methylamphetamine to be served by way of intensive corrections order for 11 months.

29. It is accepted by Mr Moffet that Mr Winter’s role is more serious than the co‑offenders’ and questions of parity don’t loom large in the sentencing exercise. He acknowledges that the clear record and compelling subjective case of Stephen-Biles in particular, put her in a completely different category to this offender. She also had good prospects of rehabilitation. The best it can be said for Mr Winters, given the background to which I’ve referred, is that his prospects are guarded and the Court would be optimistic that at the age of 61 he’s finally coming to the recognition and the realisation that it’s necessary to engage in rehabilitation and attempt to become a prosocial member of society.

30. As the Crown submits, general and specific deterrence and protection of the community should be given significant weight where this offender’s operation serviced and maintained a market for methylamphetamine, which in turn provides the economic incentive for the manufacture, importation and distribution of methylamphetamine at bulk and wholesale levels and the offences were committed in disregard of the social impact of drug use upon the community. As the Courts have said in cases such as R v CBK (2002) 135 A Crim R 260 and Parente v R [2017] NSWCCA 284 a consistent message of deterrence from sentencing judges is necessary to discourage the ongoing trade in drugs which depends entirely on the availability of people such as Mr Winters.

31. The Crown acknowledges that his moral culpability is lessened by Bugmy v The Queen (2013) 249 CLR 571 factors. He has experienced sexual abuse and drug and alcohol addiction and his difficult childhood as has been established in evidence.

32. The orders that I will make are that;

1. Mr Winters is convicted of each offence.

2. Taking into account a 25% discount for the pleas of guilty, the indicative sentences are:

1. sequence 2 two years and six months with a non‑parole period of 20 months.

2. Sequence 22 taking into account the Form 1 matters two years and two months.

3. Sequence 25 six months and

3. I impose an aggregate sentence of three years and one month commencing 21 May 2020 and a non‑parole period of two years expiring 20 May 2022.

4. I find special circumstances.

5. I make a forfeiture order in relation to $1065 by consent.

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Decision last updated: 31 May 2022