The Queen v Watson

[2020] NSWDC 659

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Queen v Watson [2020] NSWDC 659

Hearing dates:

18 September 2020; 21 September 2020

Date of orders:

21 September 2020

Decision date:

21 September 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence. Decision at [60] – [63]

Catchwords:

CRIME – sentence – multiple offences relating to the manufacture of a prohibited drug

Legislation Cited:

Bail Act 2013 (NSW) s 79

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 10A

Drug Misuse and Trafficking Act 1985 (NSW) ss 24, 24A

Summary Offences Act 1988 (NSW) s 11C

Category:

Sentence

Parties:

Trevor Watson (Offender)
Regina (ODPP)

Representation:

Solicitors:
Mr Gibbons (Offender)
Mr Murray (Crown)

File Number(s):

2017/378793; 2019/213719

Publication restriction:

None

Judgment

1. Mr Watson appears before the Court today for sentence having pleaded guilty to a number of charges on the Crown sentence summary, marked Exhibit A.

2. The Offender was born on 18 January 1955, and is now 65 years of age. He is not engaged in employment. The charges for which he is to be sentenced include the following:

1. charge number ending 733 sequence 6, being manufacture a prohibited drug, methylamphetamine, in breach of s 24(1) of the Drug Misuse and Trafficking Act 1985 NSW. This offence carries a maximum penalty of 15 years’ imprisonment and/or a fine of 2,000 penalty units; there is no standard non-parole period; and

2. sequence 7 of the same charge number, being possess a precursor referred to and set out in Exhibit A, intending for the said precursor to be used in the manufacture of a prohibited drug, namely, methylamphetamine. That is in contravention of s 24A(1)(a) of the Drug Misuse and Trafficking Act and carries a maximum sentence of 10 years’ imprisonment and/or a fine of 2,000 penalty units.

3. The following charges appear on a s 166 certificate and are related matters. The first is sequence 2 of the same charge number, being possess drug manufacturing apparatus intending for the said apparatus to be used in the manufacture of a prohibited drug, namely, methylamphetamine in breach of s 24A(1)(b) of the Drug Misuse and Trafficking Act 1985. That carries a maximum sentence of 10 years’ imprisonment and/or a fine of 2,000 penalty units.

4. The next charge is in respect of charge number ending 104 sequence 3, custody of knife in a public place in breach of s 11C(1) of the Summary Offences Act 1988. It carries a maximum penalty of two years imprisonment and/or a fine of 20 penalty units.

5. The fifth charge for sentence is sequence 4 of the same charge number, namely, fail to appear in accordance with bail acknowledgement in breach of s 79(1) of the Bail Act 2013. This offence carries a maximum penalty of 3 years’ imprisonment and/or a fine of 30 penalty units.

6. There are 3 Form 1 documents. The first, attaching to sequence 6, it carries upon it a single charge of supplying an indictable quantity of a prohibited drug being 13.93 grams of methylamphetamine in breach of s 25(1) of the Drug Misuse and Trafficking Act. It has a maximum penalty of 15 years’ imprisonment and/or a fine of 2,000 penalty units.

7. The second Form 1 attaches to sequence 7 and carries 3 charges, all in relation to the same charge number, being sequences 5, 10 and 11. They are all breaches of the same section of the Drug Misuse and Trafficking Act, namely possessing a precursor intending for the said precursor to be used in the manufacture of a prohibited drug, namely, methylamphetamine. The maximum sentence for those 3 charges is 10 years’ imprisonment and/or a fine of 2,000 penalty units. In the Local Court the summary disposal of such charges attracts a maximum penalty of 2 years imprisonment and/or a fine of 50 penalty units.

8. The third Form 1 attaches 4 charges, all of which are of the same charge number ending 733. They are sequences 1, 3, 4 and 9, attaching to sequence 2. All 4 charges are a contravention of the same section of the same Act, for possessing drug manufacture apparatus intending for the said apparatus to be used in the manufacture of a prohibited drug, namely, methylamphetamine in breach of s 24A(1)(b). On indictment they all carry a maximum penalty of 10 years’ imprisonment and/or a fine of 2,000 penalty units. In the Local Court they carry a maximum penalty of 2 years’ imprisonment and/or a fine of 50 penalty units.

9. There is a further charge on a section 166 certificate, being a backup offence to be withdrawn and dismissed. That is a possession of a prohibited drug, namely, methylamphetamine in breach of s 10(1) of the Drug Misuse and Trafficking Act. It carries a maximum penalty of 2 years’ imprisonment and/or a fine of 20 penalty units.

10. The maximum sentences just referred to represent the community’s attitude to the seriousness of the offending. They are guideposts for sentencing for a sentencing judge.

11. The matters on the Form 1 are to be taken into account by me in relation to the principal charges to which they attach. They are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to 2 elements which are always material in the sentencing process. The first is the need for personal deterrence, and the second is the community’s entitlement to extract retribution for serious offending.

12. The offending in respect of charge number ending 104 took place on 14 December 2017. The offending in respect of the charges with the charge number ending 733 took place 15 December 2017. The Offender was arrested on 15 July 2017, and was granted bail at court.

13. On 16 February 2018 he was due to appear before court, however failed to do so. A bench warrant for his arrest was then issued. That warrant was not executed until 24 July 2019, when the Offender was arrested in Queensland and extradited to New South Wales.

14. On 15 May 2020 the Offender was committed for sentence from the Local Court, and he has been in custody since his arrest in Queensland on 24 July 2019.

15. The Agreed Facts appear at tab 10 of the Crown bundle Exhibit A. In September 2016, Strikeforce Burleigh was established to investigate the manufacture of prohibited drugs by the Offender.

16. I will read out the Agreed Facts in relation to charge number ending 104 as they occurred first in time. At around 10pm on 14 December 2017 police stopped a South Australian-registered hire car on the Pacific Highway. The car was being driven by the Offender and a person, whose name appears in the facts, was seated in the front passenger seat. A random breath test was conducted which produced a negative result. Police saw three mobile phones in the vehicle.

17. Following checks on the Offender police conducted a vehicle search. The Offender got out of the vehicle and police observed a small knife on the seat where he was sitting. The Offender explained that he had the knife “in case I want to peel some food”. When the passenger exited the vehicle police located a plastic container with a white crystal substance. The passenger said, “What, it’s not mine, what is happening and I’ve never seen it”. The Offender then said, “It’s mine, it’s not hers, it’s mine”. The Offender said that he had put the container on the seat underneath her. The Offender was then placed under arrest.

18. The Offender told police that he believed the substance in the container was methylamphetamine and he had “just got it on tick”. The substance was later analysed and determined to be 13.93 grams of methylamphetamine. The substance was also found to contain pseudoephedrine.

19. Police then left and the Offender was taken to the police station. The Offender was charged and granted bail on 15 December 2017 at Gosford Local Court. On that date the matter was adjourned to 16 February 2018 for mention. On 16 February 2018 the Offender failed to attend Gosford Local Court, at which time a bench warrant was issued for his arrest. On 24 July 2019 the Offender was arrested in Queensland, and extradited to New South Wales.

20. Returning to the Agreed Facts at tab 9 of Exhibit A which are duplicated at tab 10 with colour photographs. In September 2016 the strikeforce was established to investigate the manufacture of prohibited drugs by the Offender.

21. On 15 December 2017 a search warrant was carried out at 28A Hempstalk Crescent, Kariong, where the Offender was living. This property was rented by a Mr Evans. In the bedroom occupied by the Offender and his friend, police located 3 sets of scales and a plastic jar containing a white powder/crystal substance.

22. That substance was later analysed and found to be 0.55 grams of methylamphetamine. In the Offender’s bedroom police also located two cans of butane, numerous resealable plastic bags, ice pipes, a formula tin and an ID in the name of Robert Guy Turner, with the Offender’s photograph on it. The Offender was cautioned by police when he arrived at the premises. The Offender said the ID had been created for him for a fancy dress party and that he had the scales and resealable bags for fossicking.

23. Police from the NSW Drug Squad Chemical Operations Unit attended the property and performed a search of the garage and seized a number of items indicative of methylamphetamine manufacture being performed.

24. Methylamphetamine is commonly manufactured by mixing pseudoephedrine with hypophosphorous acid and iodine, and then heating the mixture in a vessel with a condenser on top so that vapours from the vessel can be condensed and returned into the vessel. The salt form of hypophosphorous acid can also be used in the reaction. By‑products from the reaction can include the chemicals referred to in para 8 of the Agreed Facts.

25. Where a reaction has not gone to completion it will still contain some of the starting precursors. Items seized in the garage include the items referred to at pp 1, 2, 3, and 4 of the Agreed Facts. I do not intend to recite what appears other than to observe that they include baby formula tins containing liquid containing pseudoephedrine and other drugs, a glass coil condenser, a glass flask, a number of round‑bottomed flasks, an electric heating mantle, two bags containing white crystal substance, further formula tins containing liquid, a number of glass bottles, a baking dish, a portable stove, a work unit, a box containing various items including a microfilter with vacuum arm around a glass joint, some filter papers, pH test strips, separating funnel and additional items such as clamps and the like.

26. On 21 December 2017 Mr Evans participated in an ERISP interview with the police. The Offender is the uncle of Mr Evans. Mr Evans told police that he had allowed the Offender, his uncle, to live with him after he, that is his uncle, had an accident. It had been intended that it would be a short term arrangement, but at the time of the interview the Offender had been living with Mr Evans for about 2 years. The Offender’s girlfriend was also living with Mr Evans for that period.

27. Mr Evans told the police that he would generally only go into the garage if he was going to mow the lawns or change the oil in his car. Mr Evans worked 12 to 14 hours per day, 6 to 7 days a week. Other than Mr Evans, the Offender and his girlfriend were the only people with access to the garage. Mr Evans said in the garage he had a lawnmower, whipper snipper, some fishing rods, tools and other items. He also said that the Offender had a bedside table with roll wheels and a mounted light stand on it, which generally had G-clamps sitting on it. Mr Evans denied owning the formula tins found in the garage.

28. Between 3 June 2016 and 31 August 2019, numerous packages were sent to the Offender containing lab equipment. On 11 January 2018 police located 57 boxes of Claratin‑D, 243 boxes of Demazin and 219 boxes of Logicin and a large quantity of loose blister packs. The Demazin boxes were labelled to contain 12 tablets; the Offender’s fingerprints were located on the ClingWrap wrapping the Demazin tablets. The Logicin boxes were labelled to contain 12 tablets each comprised of 60 milligrams of pseudoephedrine hydrochloride.

29. On 11 July 2019 an arrest warrant was issued for the Offender, who was arrested on 24 July 2019 in Queensland and then extradited to New South Wales the following day. Those are the Agreed Facts.

30. Turning to the Offender’s subjective case, as I have already noted he is 65 years of age, and he was involved in an accident in 2015, in respect of which he underwent a number of operations. His criminal history is generally unremarkable save for a prior conviction of manufacturing a prohibited drug not less than a commercial quantity, in respect of that conviction, he was sentenced to imprisonment for 4 years with a non‑parole period of 3, which occurred in 2007.

31. In December 2018, when in Queensland, after the subject offending he was charged and convicted of possessing dangerous drugs (2 counts), and possessing utensils or pipes et cetera for use. Further, in May 2019, he again offended and he was subsequently charged and convicted of possessing dangerous drugs (2 counts), and again possessing utensils or pipes et cetera that had been used.

32. I have also read and had regard to a report by Anita Duffy, psychologist, dated 21 July 2020 (Exhibit 1), that followed a 2 and a half hour interview with the Offender, which occurred on 14 July 2020. At the time of the interview, the Offender told the psychologist that he was ready to participate in relapse prevention programs. He gave a history of a happy and stable upbringing. The Offender has 3 sons and 1 grandson, his grandson unfortunately suffers from autism.

33. The Offender left school at the end of Year 10, and commenced an apprenticeship in building, which he completed by the age of 19. He held a number of forms of employment of a manual nature. As mentioned, in 2015 he was involved in an accident in which he broke his tibia and fibula and underwent a number of operations, however otherwise he has enjoyed reasonable health.

34. He told the psychologist that he manufactured ice for his own use. Upon testing for psychological issues, there was a significant result for anxiety causing the psychologist to diagnose a mild, generalised anxiety disorder and a mild substance abuse disorder. Ms Duffy considered the Offender to be a low risk of reoffending, although she seemed not to have been aware of the offending that took place between the subject offending and the time of the interview, that being the offending which took place in Queensland

35. The Crown submitted that little weight should be attributed to the report of Ms Duffy, as she was unaware of the Queensland offending or the charge relating to supply being sequence 2 of charge number ending 104. The latter charge contradicts the assertion made by the Offender to Ms Duffy that the manufacture of ice was for personal use.

36. It seems to me that whilst those considerations may have a bearing upon the finding by Ms Duffy that the Offender is at low risk of reoffending, the report is otherwise of use to the Court in providing a history of the Offender’s background and personal circumstances.

37. I also note that, whilst in custody, the Offender has participated in a course for alcohol and other drugs involving 6 one hour sessions for those on remand in respect of narcotic charges.

38. Other than the criminal offences to which I have made reference, most particularly to the subject offending in respect of manufacture and the historical conviction for manufacture, the Offender’s subjective case is reasonably unremarkable, he had what might be regarded as a normal upbringing and has it seems the support of some of his family including his grandson.

39. Turning to considering the submissions advanced on behalf of the parties, the Crown has very helpfully prepared a table in relation to the charges, with submissions in respect of the objective seriousness which the Crown contends relating to each.

40. In respect to the charge of manufacturing a prohibited drug, the Crown submitted that it fell at the mid‑range of objective seriousness. Mr Gibbons, solicitor for the Offender, accepted that submission and made the concession that it fell at about the mid‑range.

41. I adopt the submission of both parties, and find the objective seriousness for the manufacture charge falls at the mid‑range. This is bearing in mind the period of time over which the offending took place, the fact that the manufacturing was undertaken by the Offender himself, and the fact that the manufacture took place in a residential premises in a residential area.

42. In relation to the charge of possessing precursor, being sequence 7, it was submitted on behalf of the Crown and conceded by the Offender that it fell at the mid‑range of objective seriousness. As Mr Gibbons submitted on Friday, the seriousness of that offending follows the seriousness of the manufacture offending, as one precedes the other. I accept the submission by Mr Gibbons on behalf of the Offender, and find the objective seriousness in relation to the precursor charge falls at the mid‑range.

43. The same submission was advanced in relation to the apparatus charge, that being sequence 2. I accept the submission by the Crown adopted by the accused that it fell at the mid‑range. There was a variety of equipment in the possession of the Offender which permitted the manufacture of the prohibited drug. Sequence 2 relates to the possession of the 500 ml clear, glass, round bottomed flask. I find that it fell at the mid‑range of objective seriousness.

44. In relation to the sequence 3 or charge ending 104, the custody of a knife in a public place, the Crown submitted that it fell below the mid‑range. Mr Gibbons submitted it fell in the low range. I accept the submission of Mr Gibbons for the Offender, and find that the offending relating to the possession of the knife falls at the low range of objective seriousness.

45. Finally in relation to sequence 4 of charge ending 104, being failing to appear in accordance with a bail acknowledgment it was submitted for the Crown that it fell in the mid‑range. Mr Gibbons did not speak against that. Given the nature of the charge, that is the failure to appear, and the absence of any gradation of offending, I accept the Crown’s submission that it fell at the mid‑range of objective seriousness.

46. In its written submissions the Crown submitted that an aggravating factor arose, being that the offence was committed in the home of the victim or any other person, that is s 21A(2)(eb). On behalf of the Offender, that finding was resisted on the basis that this subsection does not exist to capture this type of offending, but rather it exists to capture offending of a type that jeopardises the safety of those who may reside at the premises or alternatively may expose those residents to unfortunate and inappropriate conduct. Given that the offending took place in a garage not often frequented by the resident of the premises, Mr Evans, I accept the submission behalf of the Offender that the aggravating factor is not made out beyond reasonable doubt. I decline to make that finding.

47. The Crown submitted that the only mitigating factor which arose was that the Offender pleaded guilty. Plainly that is a statutory mitigating factor, which I find in favour of the Offender, and which will result in a reduction in his sentence by 25%. This reduction represents the utilitarian value of his guilty plea.

48. In the submissions for the Offender, marked MFI 2, there was reference as an aggravating factor to the Offender’s prior criminal history, and in particular to the prior similar offending. It was conceded by Mr Gibbons, on behalf of his client, that in light of that prior offending, a custodial sentence is required in relation to the subject offending. Whilst I agree with that submission, I do not find that his prior criminal record is an aggravating factor, but rather that it deprives him of a finding of good character and disentitles him to any leniency which may otherwise flow.

3. In relation to mitigating factors, it was submitted for the Offender that he had good prospects of rehabilitation and is unlikely to reoffend. That was based principally upon the submission that the Offender is committed to avoiding further use of amphetamines, and the fact that he was attending courses whilst in custody. In view of the evidence given by the Offender that he wishes not to further offend and not to further use drugs, and rather focus upon his relationship with his family, I accept the submission on behalf of the Offender that he has good prospects of rehabilitation and that, in the circumstances, he is unlikely to reoffend.

4. Before sentencing any person in this Court, it is necessary to remind myself of the purposes for sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. The first purpose is to ensure that an adequate sentence is imposed. The manufacture of drugs in the community gives rise to not only ill health by those who consume the drugs, but also to a large number of other crimes. The number of offenders who appear in this Court for non drug‑related crimes are often themselves affected by drugs at the time of committing the offences. It is important that the offender is adequately punished, so as to reflect the abhorrence with which the community has regard to the dissemination of drugs within the community.

5. The sentence must also deter both the community and the Offender from committing similar offences. Protection of the community, accountability of the offender, denunciation of his conduct and recognition of the harm done are also important purposes for sentencing. Another is the rehabilitation of the offender.

6. Before sentencing an offender to a sentence of imprisonment, it is necessary to consider all possible alternatives, those being all alternatives other than imprisonment. Pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I find that no sentence other than a term of imprisonment is an appropriate sentence outcome in this case. Further, I find that the term of imprisonment is to be served by of full‑time custody.

7. Before moving any further into the sentence, I also intend to find special circumstances on the basis that the Offender is in need of further rehabilitation and treatment, which might include counselling in order to rid himself of the addiction to drugs which he had prior to his incarceration. Accordingly, the ratio of parole to non‑parole will be favourably adjusted.

8. I intend to impose an aggregate sentence, prior to doing so I am required to indicate the sentence which I would otherwise have imposed upon the Offender for the offending.

9. In relation to sequence 6, being manufacturing a prohibited drug, having regard to the matters contained on the Form 1, and after a discount of 25% for the guilty plea, I provide an indicative sentence of 3 years.

10. In relation to sequence 7, namely possess a precursor, having regard to the matters on the Form 1, and after a discount of 25% for a guilty plea, I provide an indicative sentence of 3 years.

11. In relation to sequence 2, namely possessing drug manufacture apparatus, together with the related charges on the Form 1, I provide an indicative sentence, after the discount of 25%, of 18 months.

12. Those are the indicative sentences.

13. In respect of Counts 4 and 5, I intend to convict but not sentence the Offender to any period of imprisonment. The commencement date in relation to the sentence will be the date upon which the Offender was taken into custody, namely 24 July 2019.

14. Mr Watson, you are convicted of the following offences:

1. sequence 6 of charge number ending 733, manufacturing a prohibited drug methylamphetamine, in breach of s 24(1) of the Drug Misuse and Trafficking Act;

2. sequence 7 of charge number ending 733, possessing a precursor, in breach of s 24A(1)(a) of the Drug Misuse and Trafficking Act;

3. sequence 2 of charge number ending 733, possessing drug manufacture apparatus in breach of s 24A(1)(b);

4. sequence 3 of charge 104, being in custody of a knife in public place in breach of s 11C(1) of the Summary Offences Act 1988; and

5. sequence 4 of charge 104, being failure to appear in accordance with bail acknowledgment in breach of s 79(1) of the Bail Act 2013.

61. In relation to the first 3 convictions, that is the s 24(1) charge, the s 24A(1)(a) and the 24A(1)(b), charge you are sentenced to an aggregate sentence comprising a period of 4 years. The sentence is backdated to commence 24 July 2019, and expiring 23 July 2023. You are sentenced to an aggregate non‑parole period of 2 years, commencing 24 July 2019 and expiring 23 July 2021.

62. In relation to sequence 3 of charge 104 and sequence 4 of charge 104, you are convicted and, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, you are not sentenced to any additional penalty.

63. Finally, I note that the backup charge on the s 166 certificate, being charge 104 sequence 1, is withdrawn and dismissed.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 63 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

Associate

James Bailey

Amendments

04 November 2020 - Catchwords added

Decision last updated: 04 November 2020