R v Wylie

[2020] NSWDC 200

District Court

New South Wales

Medium Neutral Citation:	R v Wylie [2020] NSWDC 200
Hearing dates:	31 March 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted on all 17 substantive matters and taking into account 34 Form 1 matters the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence 7 years with a non-parole period of 3 years and 6 months
Catchwords:	CRIMINAL LAW – Sentence – Intimidate with intent to cause physical or mental harm – Assault occasioning actual bodily harm – Supply quantity not less than the large commercial quantity of prohibited drug applicable to MDMA – Sexual intercourse with a child deemed between the ages of 14 and 16 years – Supply indictable quantity of prohibited drug - Supply quantity not less than the large commercial quantity of prohibited drug applicable to Cocaine – Supply prohibited drug to a minor – Agreeing to supply a prohibited drug – Deal with the proceeds of crime – Middle man – Undercover operation – Prior good character
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act, 1999 Drug (Misuse and Trafficking) Act, 1995
Cases Cited:	Bugmy v R [2013] HAC37; (2013)249 CLR 571 Dinsdale v R [2000] HCA 54; 202 CLR 321; 175 ALR 315; 74 ALJR 1538 (12 October 2000)
Category:	Sentence
Parties:	The Crown Shannon Maxwell WYLIE
Representation:	Counsel: A Bowens – Crown M Langeheim - Offender   Solicitors: Director of Public Prosecutions Michael Dennis
File Number(s):	2018/394041

Judgment

1. HIS HONOUR: Shannon Maxwell Wylie is before the Court for sentence in relation to seventeen substantive offences and asks the Court to take into account thirty-four offences that are on one Form 1. A slightly unusual procedure has been adopted with the consent of the parties; because the Court is operating in a partially remote fashion due to COVID-19 issues, the Crown prosecutor is in the Northern Rivers and Mr Wylie is at Shortland Correctional Centre. Accordingly, the approach that has been adopted is rather than having separate Forms 1 prepared in relation to each count, it has been nominated on the Form 1 now which counts the individual entries on the Form 1 relate to. For abundant caution, once I have been through the substantive offences, I intend to read onto the record what is to be taken into account for which count. Count 1 is the offence of intimidate with intent to cause physical or mental harm in breach of s 13 (1) of the Crimes (Domestic and Personal Violence) Act, 2007 for which matter is provided a maximum penalty of five years and there is no applicable standard non-parole period. Count 2 is an assault occasioning actual bodily harm in breach of s 59 (1) of the Crimes Act 1900 being a matter for which there is a maximum penalty of five years and no standard non-parole period has application. The third matter is the supply of a quantity not less than the large commercial quantity applicable to MDMA being an amount of 501.12 grams. That is a matter for which the maximum penalty is life imprisonment and or a penalty of 5,000 penalty units and there is a standard non-parole period of fifteen years. Counts 4, 5, 7 and 10 are breaches of s 66(C)(3) of the Crimes Act, sexual intercourse with a child deemed between the ages of fourteen and sixteen years. The maximum penalty for each of those offences is ten years. Count 6 is supplying the indictable quantity of a prohibited drug namely, methylamphetamine in an amount of 184.89 grams; that's a matter in breach of s 25 (1) of the Drug (Misuse and Trafficking) Act, 1995; that matter has a maximum penalty of fifteen years and or a 2,000 penalty unit fine and no standard non-parole period has application. Count 8 is an offence in breach of s 25 (2) of the Drug (Misuse and Trafficking) Act, that is supply of not less than the commercial quantity of a prohibited drug being cocaine in an amount of 281.08 grams of cocaine. For that matter is provided a maximum penalty of twenty years and or a fine of up to 3,500 penalty units and a standard non-parole period of ten years is applicable. Counts 9 and 11 are offences in breach of s 25 (1)(A) of the Drug (Misuse and Trafficking) Act, being the supply of a prohibited drug on one occasion, methylamphetamine and on the other occasion, MDMA to a nominated child the age of fifteen by a person being over the age of eighteen years. Each of those offences carry a maximum penalty of fifteen years and or a fine of up to 2,000 penalty units and no standard non-parole period has application. Count 12 is an offence that between 20 September 2018 and 10 December 2018 at Armidale the offender did supply a prohibited drug namely, cannabis, in breach of s 25 (1) of the Drug (Misuse and Trafficking) Act. Being over the indictable quantity, that matter has a maximum penalty of ten years and or a fine of 2,000 penalty units. Count 13 is an offence of agreeing to supply by negotiating and agreeing to supply an amount of prohibited drug namely, 840 grams of MDMA which is not less than the large commercial quantity applicable to that prohibited drug in breach of s 25 (2) of the Drug (Misuse and Trafficking) Act, that matter has a maximum penalty of life imprisonment and or a fine of up to 5,000 penalty units and a standard non-parole period of 15 years. Similar maximum penalty and standard non-parole periods apply to each of counts 14, 15 and 16 which are offences in breach of s 25 (2) of the Drug (Misuse and Trafficking) Act, being the supply on each occasion of MDA in a quantity not less than the large commercial quantity for that prohibited drug. The final count on the indictment is count 17 and is an offence that Mr Wylie dealt with the proceeds of crime namely, $23,618.95 knowing it to be the proceeds of crime.

2. Dealing with the matters on the Form 1, sequences 11 and 12 will be taken into account when I deal with count 6. Sequences 13, 16, 17, 18, 24, 28, 29, 30, 40 41, 42, 43, 44, 46, 48, 49, 51, 57 and 58 will be taken into account when I sentence in relation to count 3. Sequence 15 will be taken into account when I sentence in relation to count 14. When I take matters into account for count 8 they will be sequences 25, 26 and 27. When I sentence for count 11, I will take into account sequence 34. When I sentence for count 13, I will take into account sequence 35. When I sentence for count 14, I will take into account sequences 50 and 53. When I sentence for count 12, I will take into account sequence 52 and when I sentence for count 14, I will take into account sequence 53. When I sentence for count 11, I will take into account sequences 54 and 55.

3. The facts in the matters are agreed and extracted in a document of some seventeen pages. The approach that I intend to adopt is not to read all of the facts, which can easily be found in the agreed fact document, onto the record. I will summarise certain relevant detail in relation to varied counts. What I propose to do having done so, is then characterise the objective seriousness of offences as I go.

4. In short, between August 2017 and December 2018, police attached to the New England Criminal Investigation conducted a strike force by the name of Janian which involved investigation into the supply of MDA, MDMA, cocaine, methylamphetamine and cannabis by Shannon Wylie and other people in the New England area. With the exception of one of the matters being sequence 40 on the Form 1 which is a supply of half a gram of MDMA between 14 and 19 January 2018, all of the other offending seems to have taken place between June 2018 and December 2018. In relation to all matters, each of the matters are not aggravated by being in breach of any conditional liberty; they are aggravated by the fact that they are part of a planned criminal activity but there is no greater degree of planning in these offences than would usually be seen and I am limiting those comments to all the drug supply matters. Each of the matters is mitigated because the offender is a person with no relevant prior history. He is a person of prior good character and he is a person who has good prospects for rehabilitation and on balance is unlikely to re-offend.

5. The first two matters on the indictment are matters of quite a different character to the balance of matters which either relate to supply of prohibited drugs in some limited, isolated occasion, supply of prohibited drugs to a minor and then sexual intercourse matters which is a totally different group of matters, as it were.

6. The facts in relation to count 1 which is the offence of intimidation, between 1 January 2018 and 1 October 2018, Fletcher Farrell made arrangements with the offender to purchase ten MDMA tablets for which Mr Wylie charged $300. Mr Farrell attended an address known to the Court , Armidale as directed by Mr Wylie where he was instructed to meet Alice Schneider to collect the ten MDMA tablets. Farrell only paid $100 of the $300 to be paid leaving $200 to be paid at a later date. There were a number of conversations consequently between Farrell and this offender about the payment of the outstanding drug debt which included Mr Wylie walking to increase the price to be paid by Farrell because of the outstanding monies.

7. At some unknown time after the supply of the ten tablets, the facts in relation to the intimidate are that this offender had a further conversation with Mr Farrell via Facebook concerning payment for the tablets. Thereafter, this offender and his brother, Stirling Wylie, attended an address known to the Court, Armidale with the intention of intimidating Fletcher Farrell to pay the outstanding debt. The offenders banged on the front door of that address, however, Farrell was not home. The door was answered instead by Farrell’s mother, Leanne Russell and his father, Richard Farrell. Also present were Farrell’s siblings. Shannon Wylie began yelling at Leanne Farrell and Russell asking for Farrell further stating that he’s a piece of shit and owes Wylie money. Other threats included telling one of the siblings to tell him, that is Fletcher Farrell, that Mr Wylie is going to kill him. They are the facts that relate to the intimidate.

8. The assault occasioning actual bodily harm which is count 2 is factually related to this matter. On 2 June 2018 Mr Farrell attended a party in Uralla. Mr Wylie was also at the party. Mr Wylie commenced swearing at Mr Farrell and ultimately punched him. They ultimately went away from the party premises and Mr Wylie punched Mr Farrell to the left cheek causing him to fall to the ground. He then continued to assault him. Attendees at the party had to intervene and drag the offender away from Mr Farrell who suffered bruised and swollen left eye with a marked blurred vision for a number of weeks. Wylie was later monitored and recorded making admissions in relation to that assault. In relation to the intimidate I take the view that the objective seriousness of that matter falls at intersection between the low range and the mid-range of objective seriousness given that there were threats by words only and that there was some level of apparent provocation not by the victims themselves but by Mr Farrell or apparently failing to pay his debts. It was a relatively quick incident.

9. Similarly in relation to the assault occasioning actual bodily harm although it is made more serious because Mr Wylie punched Mr Farrell when he had already been punched to the ground, the injuries were relatively limited and there was also operating some level of provocation in relation to that matter. Both those facets represent the only suggestions of violent or aggressive behaviour across him being monitored for many months by the police and the Crown prosecutor put that they were really aberrations compared to the balance of the offending. In relation to the assault occasioning actual bodily harm it is at the bottom of the mid-range of objective seriousness for the reasons that I have identified.

10. Before I go and read the facts in relation to various other drugs matters, I just want to make some observations about Mr Wylie’s role so that my assessments about objective seriousness can be understood. In relation to the matters on the Form 1, most of those matters can be, I accept, on the submissions of both of the parties, characterised as street level dealer supplies where Mr Wylie was if you like the principal of his own small drug distribution operation. Happily, the majority of the drugs involved were MDA or MDMA rather than the more pernicious methylamphetamine which has so damaged both rural and metropolitan communities. MDMA and MDA are what are commonly known as party drugs although they render their own degree of devastation in the community as can be seen by this offender’s decline at the effect of those drugs and getting involved in these kinds of matters.

11. Each of the big matters, by which I mean the supplies of larger amounts of drugs where the large commercial quantity agreeing to sell but not in fact selling the large commercial quantity of MDMA. Each of those bigger transactions involved an undercover operative. Madam Crown, having heard Mr Langenheim’s submissions, conceded that it was within the proper fact finding available to this Court to consider that Mr Wylie in relation to those matters was, if you like, a middle man where he was supplying increasingly large quantities of drugs or increasingly large amounts of money operating at a middle man between the undercover operative as the purchaser and other people operating on the seaboard from whom he was able to source these larger amounts of drugs. There is a very real distinction to be drawn between the way Mr Wylie conducted himself when he was dealing with the undercover operative as opposed to his more general way of operating as a street level user dealer of a principal kind. Although Mr Langenheim asked me to be satisfied that there was some level of duress in the absence of sworn evidence about that, I am not in a position to make a finding on the balance of probabilities of that in favour of the offender. I am able to draw a ready distinction between the size of the deals when the undercover operative was engaging Mr Wylie. That does not perform some kind of excuse but it just shows that there were two quite discrete patterns of offending no doubt across a period of seven months from June 2018 until Mr Wylie’s arrest on 21 December 2018.

12. The facts in relation to count 3 are that between 29 June and 20 December Mr Wylie across a number of events supplied amounts of MDMA being greater than a large commercial quantity. Each of these were supplies made to the undercover operative and included on 29 June supplying ten tablets at fifteen dollars a tablet being $150 and fifteen odd grams of a light-coloured substance purported to be MDMA for which he charged $2,700. Those items were ultimately analysed; the tablets had a purity of 0.25 per cent the larger quantity of fifteen grams had a purity of 18 per cent. On 17 August 2018 there was a supply of 493 tablets which were purported to be MDMA at fifteen dollars a tablet. It netted an amount of $7,500. On analysis, 118 of MDMA were found to have a purity of 18 per cent. On 31 August there was a supply of what were purported to be 500 MDMA tablets, again for fifteen dollars a tablet and again, for a net of $7,500. On analysis, the 121.2 grams of MDMA had a purity of 16.5 per cent. On 22 November Mr Wylie supplied 28 odd grams purported to be 28 grams of a substance which was purported to be MDMA and which was sold for an amount of $3,500. The coloured substance was later seized, analysed and found to be MDMA in an amount of 28.1 grams with a purity of 28 per cent. Finally on 20 October, Wylie supplied 2,000 round tablets purported to be MDMA at twelve dollars a tablet for a net of $24,000. The tablets were seized by police and analysed and found to contain MDMA with a purity of 10.05 per cent. It can be observed because of the various different purities involved that the drugs were likely sourced in the quantities they were rather than being from one bulk store which could have been expected to have a uniform purity. Given the role that I have determined in relation to this offender, the objective seriousness of count 3 falls towards the lower end of the mid-range of objective seriousness. I take into account in assessing the objective seriousness of that matter that the total amount of MDMA supplied at 501.12 grams represents just over the commencement threshold at 500 grams for the large commercial quantity. Although weight is not of itself determinative, that is a factor that takes the objective seriousness of the matter towards the lower end of the range in the way that I have found. When I come to sentence the offender and provide an indicative sentence in relation to count 3, I will be taking into account twenty street level supplies of MDMA that are made out on the Form 1 and I have already read out onto the record that will be consistent with legislation and principle and authority placed upward pressure and in the circumstances of that many extra supplies, not insignificant upward pressure on the penalty to be imposed for count 3.

13. Counts 4, 5, 7 and 10 are each breaches of s 66 (C) (3) being sexual intercourse with a child between the age of fourteen and sixteen years. When I come to sentence for count 10, I will be taking into account another offence of like kind on a Form 1 to that count. The facts are that on 12 July for count 4, on 14 July for count 5, on 28 July for count 7 and two counts on 12 August for count 10 in the matter on the Form 1, for all bar the matter on the Form 1, at various locations, the offender had penile vaginal intercourse with somebody identified as LEG who at the relevant times was aged fourteen years of age. It is worth observing that although LEG is the person who was also supplied prohibited drugs as a juvenile, that that happened at a later time than any of the episodes of sexual offending save for Count 10. In relation to the matter on the Form 1 to count 10, the particulars are that LEG performed oral sex upon Mr Wylie at the time later in the day that they had had penile vaginal intercourse. It is common ground between the parties that LEG was not able to provide her consent in the legal sense because she had not yet achieved the age of consent, being sixteen years of age. However, Madam Crown agreed with a proposition that the complainant was acquiescent in relation to these matters. There is nothing to suggest any force or intimidation or coercive behaviour. The age gap between the offender and LEG was six years which makes this offending less odious than where there is a much bigger age gap. There is material before me in the Sentencing Assessment Report that suggests that Mr Wylie may have had a defence available to him in terms of his knowledge of LEG’s age but he elected to plead guilty to the matters not only to obtain a utilitarian discount but as a manifest of his remorse for being involved in those matters and I take into account that the objective seriousness of each of the matters is at the top end of the low range for the reasons that I’ve identified.

14. The facts as to count 9; I confirm what I said about supply prohibited drug that is count 11 and it is noted that I on count 9, the supply was on the same day as the sexual activity which founds count 10 in the matter on the Form 1. There is no material for me to form a view as to whether LEG was in any way affected by drugs when she had her acquiescent sexual intercourse. The facts as to count 9 which is a charge of supply prohibited drug to somebody under the age of sixteen by an adult are it is a supply that relates to three tablets or 0.56 grams of methylamphetamine. On 12 August at 1.22 Handel Street in Armidale, Mr Wylie supplied LEG seven brown-coloured tablets with a bear symbol. Investigators had seized brown tablets with a bear symbol from Mr Wylie on 5 August 2018, those tablets were analysed with the tablets found to contain a purity of 7.05 per cent methylamphetamine. LEG was fourteen years of age at the time of that supply.

1. The facts in relation to count 11 are the same offence but committed at a time when LEG was fifteen years of age and after any of the sexual offences averred were committed. At about 8.17 on 14 September within McDonalds car park at Armidale, Mr Wylie supplied two triangle-shaped tablets without motif to LEG which he purported to be MDMA for which he charged $25 to $20 each being a net amount of $50 or $60. When I sentence Mr Wylie in relation to count 11 I will take into account a matter on the Form 1 which is that some time during 2018 when LEG was still fourteen years of age, he supplied to her one MDMA tablet which was provided without charge. Obviously the objective seriousness of each of those matters is the matters where LEG was fourteen are obviously more serious than the matter where she was fifteen and the small amounts of drugs and small amounts of money involved mean that they fall in the low range of objective seriousness for that class of offence.

2. The facts in relation to count 8 are a supply of prohibited drug being cocaine at greater than the commercial quantity of 281 grams across the various supplies; where the commercial quantity cuts in at 250 grams weight means that the matter is less objectively serious than many matters that are caught. This was made up by a number of transactions which effectively were as follows; 4 August 2018, supply of 0.08 grams of a substance purported to be cocaine. The amount was seized but there was insufficient amount to determine the purity of it although it was analysed to be cocaine. That might be seen as being what one would describe as a sample. On 21 September 2018 Mr Wylie supplied 3.5 grams to the undercover operative for an amount of $1,200. That on an analysis, cocaine was determined to be of a purity of 25.5 per cent. On 26 October 2018 at a nominated Armidale address, Mr James Faulkner, a co-offender, was monitored and recorded while he supplied 55.1 grams of a white substance that he and Mr Wylie purported to be cocaine and for which Wylie and Faulkner charged $19,000. The substance was ultimately seized, analysed to be cocaine weighed 55 grams at a purity of 24 per cent. On 8 November 2018 Mr Wylie was monitored and recorded while he supplied 84.5 grams of substance that he purported to be cocaine for an amount of $24,500. On analysis, the item turned out to be cocaine weighing 84.5 grams with a purity of 12.5 per cent. On 6 December, Wylie and Faulkner were monitored as they supplied 55 grams of a white-coloured substance which they purported to be cocaine and for which they charged $16,500; that was found to be cocaine with a weight of 55.6 grams and a purity of 25 per cent and ultimately on 20 December 2018, Mr Wylie was monitored when he supplied 82.4 grams of powder purported to be cocaine for $24,750. On analysis, it was cocaine in an amount of 82.4 grams with a purity of 26 per cent. When I come to sentence Mr Wylie for those matters I will take into account three street level supplies, two for small amounts and one for a bigger amount of 3.5 grams of cocaine which are recorded on sequences 25, 26 and 27 of the Form 1. Because of the observations that I have made about weight and purity which I repeat, Mr Wylie’s role while being greater than Mr Faulkner’s was still as a middle man. But for the retail matters on the Form 1, the objective seriousness of the matter is at the bottom of the mid-range of objective seriousness in relation to count 8.

3. Count 12 is an offence of supplying more than the indictable quantity of a prohibited drug being cannabis. At 1.190 kilograms, it is less than 200 grams over the bottom threshold for indictable supply. The supply is effectively rolled up a number of supplies to make it more than the indictable quantity. In brief, on 20 September 2018 the offender was monitored supplying the undercover operative with 207.9 grams of cannabis which was later analysed to be so and sold for an amount of $1,700. On 26 September 2018 Faulkner was monitored supplying 452 grams of cannabis for which Mr Wylie and Mr Faulkner charged $3,800. The cannabis was seized by police and later analysed to be cannabis weighing 452.1 grams. On 26 October 2018 for an amount of $900 Mr Wylie and Mr Faulkner supplied 83.9 grams of cannabis which was later analysed and determined to be cannabis and finally, on 6 December 2018 those gentlemen were monitored and recorded when they supplied 446.7 grams of cannabis for an amount of $4,000. The cannabis was later seized and analysed to be such. When I sentence Mr Wylie on that matter, I will take into account a supply of one gram of cannabis on sequence 51 for an amount of $20 which is very low in objective seriousness and will place little upward pressure on the penalty to be otherwise imposed for count 12. The observations that I have made about role and the weight of the drug mean that the objective seriousness of count 12 falls into the top of the low range of objective seriousness.

4. Count 13 is an agreement to supply a prohibited drug in greater than the large commercial quantity. Between 24 September 2018 and 25 October 2018 Mr Wylie agreed to supply an amount of 3,500 MDMA tablets which would have been about 840 grams. There was an agreement that that would be for $14 a tablet or $21,000. Ultimately, although Mr Wylie agreed to supply 2,000 tablets of MDMA, the facts disclose that Mr Wylie was not able to deliver either the amount of 3,500 tablets or the amount of 2,000 and gave the undercover operative his $21,000 back. It is the agreement to sell that operates as the offence here but it is accepted by the prosecution that no drugs were delivered and this instance of offending tends to underline Mr Wylie’s role as a middle man and that he relied on others to be able to make good his promise in a way that he was not in relation to this matter. The objective seriousness of this matter therefore falls into the middle of the low range of objective seriousness.

5. Counts 14, 15 and 16 are all supply of prohibited drug being MDA in an amount not less than the large commercial quantity. It is worth observing that in relation to the co-offender, Mr Faulkner who was sentenced yesterday to a period of imprisonment but lesser than the period of imprisonment by way of aggregate sentence that this offender will attract, each of the events that make up counts 14, 15 and 16 for Mr Shannon Wylie were rolled up into one count of knowingly concerned in the supply of prohibited drug of the large commercial quantity. That had two implications for Mr Faulkner; one, I found that the standard non-parole period did not have application in relation to any of his matters because of the way that the Sch 2 s 54 of the Crimes (Sentencing Procedure) Act 1999 is made out but secondly, apart from a low level of criminality then, I have found for Mr Wylie, Mr Faulkner only faced one charge in relation to all of this conduct whereas Mr Wylie faces three. Although the total across the three offences is 1,587.1 grams of MDA, I note that in relation to each of the matters, a supply on 22 November 2018 of 1,981 MDMA tablets for a net price of $27,500 that the weight at 17.14 grams and a purity of 15 per cent means it takes that charge just over the large commercial quantity. They are the facts in relation to count 14.

6. In relation to count 15, on 6 December 2018, Mr Wylie and Mr Faulkner were monitored and recorded as they supplied 2,000 tablets of various kinds, each of which were purported to be MDMA. They charged $13 a tablet and was ultimately for a price of $26,000. The tablets were later seized by police and analysed; they were determined to contain MDA in an amount of 388.4 grams with a purity of 11 per cent, 108.6 grams with a purity of 9 per cent and 54 grams that ultimately did not contain any MDMA.

7. The facts in relation to sequence 16 are that on 20 December 2018, Mr Wylie was monitored and recorded while he supplied 2,000 round tablets with heart shaped symbols which were said to contain MDMA for which were charged $12 a tablet for a total of $24,000. On seizure and analysis by the police, the tablets were found to contain MDA in an amount of 517.6 grams with a purity of 7 per cent. I repeat the comments that I have made about the different purities of drug that reinforce my finding about Mr Wylie being a middle man rather than a warehouseman, for instance. In each of those matters, when I come to sentence, the objective seriousness each of those matters is towards the low end of the mid-range of objective seriousness for the reasons that were identified and the penalty will be stouter in relation to count 14 because I am taking into account sequences 25, 26 and 27, all of which are relatively low-range street supplies, apart from the supply of 3.5 grams of cocaine which is disclosed at sequence 25.

8. Finally, the facts in relation to count 17 which is an offence of knowingly dealing in the proceeds of crime, during a search of his premises at an address known to the Court, Armidale on 21 December 2018 a total of $23,618.95 in Australian currency was seized. This money had been obtained as a result of the offender’s drug enterprises. Although the Crown have yet to make a formal claim for forfeiture, Mr Wylie’s barrister was not seized of instructions. Given the way that the offender has conducted himself in terms of making admissions and pleas of guilty and assisting in the administration of justice to the extent that he has been able to upon his arrest, I take into account that it is highly likely that there will be an uncontested forfeiture application. In the Form 1 that I am taking into account the proceeds of crime matter but given the relatively low amount of money compared to, I have dealt with hundreds of thousands if not, millions of dollars on these charges. Accordingly, the objective seriousness of that matter even though it flows directly from retail drug supply is in the low range of objective seriousness for that class of offence. The penalty will be made a little bit more stout because I am taking into account sequence 31 on the Form 1 which is that the offender had been identified as the leader of drug supply activities in relation to particularly large amounts of MDMA and MDA. Accordingly, he has acknowledged his guilt in the offence of knowingly direct activities of a criminal group. I have had something to say about the limited level of sophistication of these matters. It is pretty obvious that with a little bit of sophisticated policing, Mr Wylie’s activities were brought to book but that matter will place some upward pressure on the penalty to be otherwise imposed.

9. Now I want to come to some matters personal to the offender. I have briefly adverted to some of these a little earlier. The offender has two minor traffic matters on his record and it was the Crown position that I could properly treat Mr Wylie as a person of prior good character and with no relevant criminal antecedents. Some of the contents of the Sentencing Assessment Report have been corroborated by other subjective material before the Court. On a risk assessment, he is assessed as having a medium to low risk of re-offending according to the statistical testing. Among some of the material that can be usefully drawn from the Sentencing Assessment Report is that Mr Wylie acknowledged that his gambling and excessive drinking had been normalised by his father’s behaviour. The author found he tended to blame his father for his fear of not having enough money and that is perhaps explicable when one understands some of the family circumstances that I will come to in due course.

10. The Sentencing Assessment Report verifies that Mr Wylie completed Year 10 and also a cabinetmaker’s apprenticeship. A former supervisor spoke highly of him. In terms of the subjective material that is otherwise before the Court in relation to Mr Wylie there is a deal of helpful testimonial material. The testimonial material is mainly drawn from family and friends but also includes an insightful reference from Dean Walsh who originally supervised the offender when he was undertaking his work at Timberline Bathroom Products pursuing his cabinetmaking apprenticeship. All of the family references speak of a young person with significant commitment to family. Mr Wylie has repeatedly expressed his remorse to his mother, his grandmother and various other close family friends who are, I would describe, quasi family. There is a very helpful four page typed document by the offender’s mother, Maria Wylie. On 20 February this year at this Court before COVID-19 health restrictions restricted significantly the ability of witnesses and support people to attend court, I sentenced the offender’s co-offender and older brother, Stirling Peter Wylie, to a Community Corrections Order without objection from the Crown in relation to some related offending, although not nearly as serious as Shannon Wylie’s offending. In the course of those proceedings, I heard evidence about the family upbringing of both Stirling and Shannon Wylie. Mrs Wylie was a very impressive witness and the Crown prosecutor in these proceedings who was the Crown prosecutor in those proceedings very fairly suggested that I could give extra weight to the written material from Mrs Wylie having had sworn evidence of it from her. Although Shannon Wylie’s barrister and solicitor, nor Shannon Wylie for that matter, were present in court, it was a consent position that I could have regard to that evidence in these proceedings. As I said, Mrs Wylie was a very impressive witness who struck me as being somebody who had great commitment to both of her sons, was horrified by their engagement and particularly, this offender’s engagement in serious criminal activity which took her totally by surprise. The family had a difficult background, both the boys were talented sportsmen and tried to engage themselves in community activities. Indeed, this offender’s older brother got a scholarship to Toowoomba Grammar School which had the effect of this offender losing one of his key influences in his mid-teens when his older brother went away to boarding school. Shannon Wylie’s sporting activities were curtailed in due course because of a difficult ankle injury that presented problems for him. The reason that the Wylie boys and this offender in particular have an upbringing that attracts some of the Bugmy v R [2013] HAC37; (2013)249 CLR 571 principles is that the family upbringing was highly dysfunctional. This was because the father had an unmanaged alcohol addiction and an unmanaged gambling addiction which had the effect of the family often being short of money, there being physical fights between the parents in the family home and the father would be ejected from the family home or the mother would invite the boys to encourage the father to leave the family home and thereafter, the father would make and repeat threats of suicidality. It was a very disruptive upbringing. Sadly, some of the patterning from the father seems to have circled round and affected Shannon Wylie in some of his choices. At the breakdown of a long running relationship and a need to change his occupation from cabinetmaker to concreter, in the backdrop to his relationship breakdown, he commenced to use prohibited drugs. Within a matter of months, his addictions got out of control and ironically, he picked up a gambling addiction notwithstanding having had to bail his father out financially repeatedly over the years when he should have been able to depend on his father rather than the other way round. It is to the offender’s credit that he, apart from his sporting distinctions and his commitment to an orderly work life for most of his time since he left school in Year 10 that he also has some artistic talents. There is material before me to suggest that he was a successful DJ. The downside of that was that it was in the world of DJ-ing that he commenced to meet people who introduced him to recreational drugs. It is inescapable that his problems with gambling and his addiction to recreational drugs over time made it more attractive for him to commit these offences. There is no question that these offences were committed for financial reward but against a backdrop of his more regular supports in life falling away.

11. The offender himself has written a detailed handwritten document expressing his remorse and setting out some circumstances, some of which I have just been recounting which he thinks are relevant to how he came to behave in the way that he did. He expresses his remorse for his behaviour. I am prepared to place extra weight on what Mr Wylie says for a couple of reasons. There is a great deal of concordance between all the subjective material and indeed, the Sentencing Assessment Report, but against that, the way the offender has conducted himself in relation to these proceedings speaks also of remorse and of insight. He participated in a record of interview on his arrest and made ready admissions to a great range of offences. Although a lot of activities were monitored by the undercover operative and other police officers, the passage of the matter through the courts was made much more simple because of the offender’s conduct. I find that he is highly remorseful and I consider that he is unlikely to reoffend.

12. All of these offences were committed at a time when he was only twenty years of age and he is now only twenty-two years of age. I take into account that the delays in the matter coming to Court, which Madam Crown accepts are not to be put at the feet of the offender. The reality is that he spent about fifteen months in custody serving the first part of his sentence in circumstances of maximum security. Additionally for the last month or so and for the coming months, his time in custody has been and will be made more onerous because of the impacts of the COVID-19 health situation. His time in custody is more onerous because he will no longer be able to enjoy the physical visits that his family attests he enjoys and participates in. There will not be any face-to-face visits for some time. Additionally there is a greater feeling of threat when one knows that one is confined in a close population with the possibility of the virus gaining power in that enforced, close environment. Additionally, I draw judicial notice of the fact that the way in which the correctional centres are managing this is risk is by largely locking prisoners down and spending much more time not being able to socialise or exercise and being locked in their cells. His time in custody will be made a lot more onerous because of that fact.

13. The effect of his prior clean criminal record, his demonstrated remorse and his entry of early pleas mean that I have formed the view that he has very good prospects for rehabilitation. I have in mind comments by the High Court in Dinsdale v R [2000] HCA 54; 202 CLR 321; 175 ALR 315; 74 ALJR 1538 (12 October 2000) indicating that there will be on occasions cases where a measure of mercy is appropriate, particularly if it promotes the prospects of rehabilitation, particularly for young offenders. That is because rehabilitating young offenders, although the sentences that I impose need to achieve all the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act, because of this offender’s young age and the fact most of the offending was committed in a torrent of offences committed across a seven month period, I have been able to temper the sentences for the reasons that I have identified. The Crown did not wish to be heard against a finding of special circumstances given first, that this is Mr Wylie’s first sentence of imprisonment and second, that he will need a longer time of supervision in the community to adjust to lawful community life and regain the losses that he has occasioned because of his conduct. Against that there are a great many sentence matters that call for sentence and some of the offending is very serious. I have of course had to have regard to the maximum penalties and where relevant, the standard non-parole period as guidelines or bench posts. Both because of the pleas of guilty and the characterisation of the objective seriousness of the matter, none of the matters are matters in which anything close to approaching the standard non-parole period will be imposed. I have determined to deal with the matters by way of aggregate sentences. There is a need for the Court to have in mind notions of totality, partial accumulation and partial concurrence and that there are a range of very serious offences to be the subject of penalty. This is a matter where things really pull in two different directions, the need for general deterrence in serious drug matters and the passage of offending pulls towards a not insignificant head sentence but I have determined to accept the submission made for the offender that a very generous rearrangement to the relevant between the non-parole period and the head sentence so that the dilution of the non-parole period because of the special circumstances I have found should be seen as doing the work of rehabilitation. I am quite satisfied on all the material before me that the period that Mr Wylie has to do serving his non-parole period will certainly do all the work of specific deterrence, punishment and denunciation and then a longer period on parole will attend to making good his prospects for rehabilitation.

1. So now Mr Wylie what I am going to have to do is read out a whole lot of indicative sentences before I get to the aggregate sentence and in cases where there is a standard non-parole period, I am obliged to indicate a head sentence and a non-parole period as well. It was common ground between the parties that apart from the work that the plea had to do in terms of remorse and prospects for rehabilitation, the pleas also should attract a full twenty-five per cent utilitarian discount and I have applied that to each of these indicative sentences. So, count 1 there is an indicative sentence of three months. Count 2, there is an indicative sentence of three months. In relation to both those matters, it is quite possible that the s 5 threshold would not have been crossed but for the pragmatic position that he faces penalisation on more serious matters. In relation to all of the other matters, the Crown correctly identified in terms of the matters particularly that have life sentences as maximum penalties how seriously the legislature views those matters and there was no contest between the parties that the s 5 threshold had been crossed in relation to each of the other matters. The indicative sentence for count 3, taking into account the twenty matters on the Form 1 is three years and three months with a non-parole period of twenty months. The indicative sentence for counts 4, 5 and 7 which are each sexual intercourse with a child between the ages of fourteen and sixteen years, each of those matters have indicative sentences of eighteen months. In relation to the supply matter that is, at count 6, the methylamphetamine and taking into account two matters on the Form 1, the indicative sentence for that matter is eighteen months. Count 8, the supply commercial quantity of cocaine taking into account the three matters on the Form 1, indicative sentence is two years and three months with a non-parole period of fifteen months. In relation to count 9 which is the supply to a juvenile, there is an indicative sentence of eighteen months. In relation to count 10 which is the final sexual intercourse taking into account the other offence of a similar kind on the Form 1, the indicative sentence is twenty-one months. In relation to the second supply to a juvenile notwithstanding that the person supplied was then fifteen but I am taking into account some three matters on the Form 1, the indicative sentence for that matter is two years. In relation to the supply cannabis taking into account the one other supply of one gram of cannabis on the Form 1, the indicative sentence for that matter is nine months. Taking into account the limitations of objective seriousness in relation to count 13 which is the agreeing to supply the large commercial quantity, the indicative sentence is two years with a non-parole period of twelve months, also taking into account one matter on the Form 1 when I fix that indicative sentence for count 13. Count 14 is the first of the supply large commercial quantities of MDA and taking into account the three matters that are on the Form 1, the indicative sentence for that matter is three years with a non-parole period of eighteen months. Each of the counts 15 and 16 are supply large commercial quantity of MDA. The indicative sentences for each of those will be two years nine months with a non-parole period of sixteen months in each case and the dealing with the proceeds of crime, taking into account the other matter on the Form 1, the indicative sentence is eighteen months. I take into account that a lot of the criminality involved in these matters overlaps one with the other in terms of sometimes there were occasions were physically a number of different drugs were supplied to the undercover operative as an example, so there is some warrant for a degree of notional concurrence and obviously, there is some warrant for a degree of notional partial accumulation. In setting an aggregate term, I have done my very best to balance the things that cut in different directions.

2. The offender is convicted in relation to all seventeen matters and I have taken into account the thirty-four matters on the Form 1 in the way I have indicated. The aggregate sentence will be one of seven years to date from 21 December 2018 and to expire on 20 December 2025. There is to be a non-parole period of three years and six months which means the earliest date that Mr Wylie will be eligible for consideration for parole is 20 June 2022. It is my intention that the non-parole period be fifty per cent of the whole term for the reasons I have already expressed.

*********

Decision last updated: 13 May 2020