//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2023] ACTSC 196
Supreme Court of the ACT
2023-07-27
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Wright Citation: [2023] ACTSC 196 Hearing Date: 26 July 2023 Decision Date: 27 July 2023 Before: Mossop J Decision: See [72]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – conspiracy to cultivate a trafficable quantity of cannabis – trafficking in a controlled drug – possessing a drug of dependence – money laundering – possessing a prohibited weapon – possessing equipment to cultivate a controlled plant – conspiracy offence in the low to mid-range of objective seriousness – possessing equipment to cultivate a controlled plant, possessing a drug of dependence and possessing a prohibited weapon offences in the low-range of objective seriousness – trafficking and money laundering offences in the mid-range of objective seriousness – good prospects of rehabilitation – sentence of imprisonment imposed to be served by way of intensive correction – fines imposed Legislation Cited: Crimes Act 1900 (ACT), s 114B Crimes (Sentencing) Act 2005 (ACT), ss 11, 21 Crimes (Sentence Administration) Act 2005 (ACT), s 42(1)(h)(i) Criminal Code 2002 (ACT), ss 48, 616(5), 603(7) Prohibited Weapons Act 1996 (ACT), s 5 Parties: Director of Public Prosecutions John Wright (Offender) Representation: Counsel M Dyason (DPP) S Whybrow SC (Offender) Solicitors Director of Public Prosecutions Aulich Criminal Law (Offender) File Numbers: SCC 212 of 2023 SCC 213 of 2023 SCC 267 of 2023 MOSSOP J: Introduction
John Donald Wright (who has also gone by the name of Winchester) pleaded guilty on 14 February 2023 to certain offences contained on two separate indictments.
In relation to an indictment dated 10 November 2022, he pleaded guilty to a count of conspiracy to cultivate a trafficable quantity of cannabis plants with the intention of selling or believing someone else intends to sell any of the plants, contrary to ss 48 and 616(5) of the Criminal Code 2002 (ACT) (CC 2021/11941). This offence occurred between 15 January 2021 and 15 September 2021. The maximum penalty is 10 years’ imprisonment or 1000 penalty units or both.
In relation to that offence, he asked that the court take into account an additional offence of possessing equipment to cultivate a controlled plant, contrary to s 621 of the Criminal Code (CC 2022/6062). The additional offence occurred on 25 November 2021. The maximum penalty for this offence would be five years’ imprisonment or 500 penalty units or both.
In relation to an indictment dated 6 October 2022 he pleaded guilty to: (a) Two counts of trafficking in a controlled drug, contrary to s 603(7) of the Criminal Code (SCANN 2022/189 and CC 2021/11404). The maximum penalty is 10 years’ imprisonment or 1000 penalty units or both. These offences both involved the possession of cocaine and occurred on 23 July 2021 and 25 November 2021, respectively. (b) Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT) (SCANN 2022/192). The maximum penalty is 10 years’ imprisonment or 1000 penalty units or both. This offence occurred on 25 November 2021. It involved the possession of $15,730 in cash. (c) Possess prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC 2021/11405). The maximum penalty is 5 years’ imprisonment or 500 penalty units or both. This offence occurred on 25 November 2021 and involved the possession of knuckle dusters.
There is also a related transfer charge of possessing a drug of dependence (CC 2022/1862). The maximum penalty is two years’ imprisonment or 50 penalty units or both. This offence was committed on 23 July 2021. It related to the possession of cocaine.
In chronological order the charges to which he has pleaded guilty are as follows: Date Charge 15 January 2021-15 September 2021 Conspiracy to cultivate trafficable quantity of cannabis (CC 2021/11941) 23 July 2021 Traffic in a controlled drug (cocaine) (SCANN 2022/189) Possess drug of dependence (cocaine) (CC 2022/1862) 25 November 2021 Traffic in a controlled drug (cocaine) (CC 2021/11404) Money laundering (SCANN 2022/192) Possess prohibited weapon (knuckle dusters) (CC 2021/11405) Possess equipment to cultivate controlled plant (CC 2022/6062)
Facts
Conspiracy to cultivate cannabis
Between January 2021 and August 2021, police lawfully intercepted conversations between the offender and Mr Adam Beniamini. The two discussed setting up a ‘grow room’ at premises owned by Mr Dwaine Madden. The offender, Mr Beniamini and Mr Madden agreed that they would build an artificial growing system with lighting, ducting, pots and irrigation at a garage in a house in Calwell.
Intercepted calls captured Mr Beniamini and the offender discussing the identification of a safe location for a potential grow room, ensuring security of the location, arranging the necessary equipment, undertaking necessary modifications to fit out the grow room and discussing environmental conditions.
On 15 April 2021, Mr Beniamini told the offender “you’re going to fucking add [Dwaine Madden] as a friend” and that “you’re going to be bestest of mates”. This was a reference to the fact that Mr Madden’s home had been identified as the location of the proposed grow room.
On 15 June 2021, the offender and Mr Beniamini did some preliminary work constructing the grow room.
On 23 June 2021, the offender told Mr Beniamini that he could keep the seedlings proposed for the grow room for an additional “week or so”.
On 1 and 4 July 2021, Mr Beniamini and the offender had further conversations relating to setting up the grow room at Mr Madden’s residence. During these conversations they discussed insulation that Mr Beniamini had obtained and other material that the offender was to bring out.
On 9 July 2021, the offender attended Goat Hydroponics in Mitchell to purchase hydroponic equipment for the grow room.
On 10 July 2021, the offender and Mr Beniamini discussed the issue of the grow room becoming too cold. Mr Beniamini indicated “I’ll go and get some bigger things to make sure it’s warmer and yeah, we’ll go from there.” A few days later, after having had power issues, the offender contacted an electrician to undertake electrical work for the grow room.
On 13 July 2021, the offender told Mr Beniamini that “once we get this issue out, that’s – that it then every – nearly everything’s set – bang bang.” The offender purchased further equipment from Goat Hydroponics and delivered it to Mr Madden’s residence in Calwell the following day.
On 18 July 2021, the electrician that the offender had organised attended the residence in Calwell to undertake electrical work but was unable to access the grow room because Mr Madden did not have the key.
Around 21 July 2021, approximately 15 immature cannabis plants were placed under growing lamps in pots in the grow room at the residence in furtherance of the conspiracy. Speaking about their project, Mr Beniamini said to the offender, “Oh bro, it was perfect”.
Trafficking cocaine, money laundering, and possession of a drug of dependence and a prohibited weapon
Between March and July 2021, the offender and Mr Taran Cummins, his co-offender, engaged in several conversations relating to the acquisition and use of illicit substances. The two offenders often spoke about “waiting for stuff to arrive” or “bringing the little one” and were conscious of not speaking openly on the phone.
Between 15 and 22 July 2021, the offender and Mr Cummins decided to acquire a quantity of cocaine. By 1:07pm on 23 July 2021, Mr Cummins had received the drugs from a source. Mr Cummins told the offender to come over to his place. The offender asked Mr Cummins, “Is the colour good”, referring to the apparent purity of what Mr Cummins had obtained, indicating, “I am sick of the primer. I need something good… see you soon”. At around 5:30pm the offender attended Mr Cummins’s address in Bonner.
Later that day, at around 5:37pm, another man arrived at Mr Cummins’s residence in Bonner.
At 5:40pm, police executed a search warrant at Mr Cummins’s residence. When police arrived, four men were on the premises – Mr Cummins, the offender, the man who had just arrived and another man.
Police located the following items during their search: (a) Four plastic bags containing white powder with blue tape around the neck found on a table in the downstairs office. Subsequent analysis revealed the bags contained 27.9 g, 27.883 g, 27.941 g and 28.196 g (approximately one ounce each) of white powder that was found to contain cocaine. (b) White powder on the table in the office. Subsequent analysis revealed this weighed 0.179 g and cocaine was detected within this powder. (c) Black scales with loose white substance on the table in the office. Subsequent analysis revealed the white substance weighed 0.310 g and contained cocaine. Cocaine, methylamphetamine and lignocaine was also detected in the residue found on the scales. (d) A bag containing white powder in a toolbox on top of a bar in the garage. Subsequent analysis revealed this weighed 27.421 g and both lignocaine and cocaine were detected in this powder.
In total, approximately 139 g of white powder containing cocaine was found in the residence. Analysis of the substance detected cocaine in the powder. Possession of the cocaine gives rise to the charge of trafficking in cocaine (SCCAN 2022/189). The street value of the seized cocaine was estimated to be between $24,970 and $55,932.
Police also located other items consistent with trafficking in controlled drugs, including: (a) a black plastic bag containing 637.78 g of paracetamol and 372.542 g of lignocaine; (b) $6460 of Australian currency in a black and white bum bag; (c) a large number of empty freezer bags; and (d) a large pill press.
On the same day, police executed a search warrant at the offender’s home in Braddon. Police located $8750 of Australian currency and a small bag containing white powder in the kitchen. Subsequent analysis revealed that the white powder weighed 0.935 g and contained lignocaine and cocaine (transfer charge CC 2022/1862). Police also found a set of electronic scales with white powder residue. Subsequent analysis detected methylamphetamine, cocaine and lignocaine in the residue.
Subjective circumstances
The subjective circumstances of the offender come from a number of sources. There is a report of Mr Patrick Sheehan, forensic psychologist, dated 16 June 2023. There are other documents about his psychological and medical treatment. There are a series of character references, including from his current partner and the three mothers of his children and some other documents about his tiling business. There was also a letter from the offender. The offender and his current partner gave oral evidence and were cross-examined.
The offender is 48 years old. He was born in the Australian Capital Territory (ACT) and raised in Queanbeyan. His father was a heavy binge drinker. The offender was uncontrollable as a child. His symptoms were consistent with Attention Deficit Hyperactivity Disorder. He commenced using alcohol at the age of 12. By 14 he was drinking every day. At the age of 17 he collapsed and was hospitalised. He entered a residential rehabilitation program in Canowindra where he stayed for more than 12 months. Since that time, he has been abstinent from alcohol except on a single occasion 10 years ago.
His father died when he was 24. He fell out with his mother and has remained estranged from her. He has maintained links with his three sisters.
Because of his behaviour he was suspended from school in Year 8 and never returned. After completing his rehabilitation, he entered into a bricklaying apprenticeship but discontinued that after two years. He then went into commercial tiling. He worked as an employee for eight years and has successfully operated his own tiling business for 15 years. Although he had let his business run down during his period of cocaine abuse in 2020 and 2021, he has been working hard and successfully in the period since his arrest. He employs one other worker, and his partner does the administration for the business. He makes about $3000 a week before tax.
For 10 years prior to his arrest, he was a member of the Rebels Outlaw Motorcycle Gang (OMCG). At the time of his arrest, he was the ACT Vice President. He had previously been the Sergeant-at-Arms. Since his arrest he has ceased his involvement with the gang. His current partner said that he was “exhausted and wanting to step away from the OMCG lifestyle”. He has returned his “colours” and obscured a club tattoo on his leg. He understands that ceasing to be involved in the club in this way would be seen as offensive to club members. He anticipates some aggressive retribution from club members in the future. th
He was introduced to cocaine at about his 30 birthday. Monthly use gradually increased to fortnightly use over a few years. Three years prior to his arrest in 2021 he was using one gram of cocaine most days. He kept this use hidden from his partners. Drug tests since being subject to bail on these charges have been negative.
An unusual feature of his subjective circumstances is that, notwithstanding having had three children with three different women and no longer being in intimate relations with any of them, each of them has provided a glowing reference to the court relating to the offender and his involvement with his children and their siblings. This is notwithstanding that there remains a significant pattern of volatility and interpersonal trauma. His three children are aged 24, 21 and 14. He sees them every day. He has in the past and continues to contribute to their financial upkeep. He very regularly goes to the gym with his two younger children. He is also the stepfather to the son of his current partner. He has provided support for the other children of his former partners, in particular, the second son of his first partner and the young daughter of his third partner. A reference letter from a friend of 40 years describes the change that he has observed in the offender in the last couple of years and says that he “comes across as being this big tough guy, but deep down he is the most loyal and caring person I know and he would do anything for his loved ones”.
Criminal history
Somewhat surprisingly, having regard to his subjective circumstances, the offender has only two previous criminal convictions in the ACT. In 1996, when he was aged 20, he committed the offence of armed robbery and was given a two-year suspended sentence. After the present offending, he committed the offence of driving while suspended and was given a fine of $500. In New South Wales he has some [redacted] two minor convictions which were dealt with by fines [redacted].
While, because of his involvement with the OMCG, it cannot be said that he is a person of good character, given his limited criminal history he is entitled to a degree of leniency.
Plea of guilty
Time in custody
Consideration
Plainly each of the purposes of sentencing in s 7(1) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) are relevant. Of particular significance is the need for general and specific deterrence and the desirability of the offender being rehabilitated. So far as rehabilitation is concerned, that relates not only to his drug use, cultivation and dealing but also more generally to his antisocial associations and attitudes. There is obviously a strong public interest in the rehabilitation of people who have been previously involved with outlaw motorcycle gangs where there are reasonable prospects of that occurring as a result of the motivation of the individual concerned.
In the submissions made to the court at the sentence hearing, there was no dispute that the offender ought to receive a substantial custodial sentence. The real focus of the submissions put on behalf of the offender was as to how such a sentence should be served.
Counsel for the prosecution helpfully provided tables summarising previous sentences imposed in relation to the cultivation of trafficable quantities of cannabis and relating to trafficking cocaine. Those cases demonstrated considerable variation in the sentences imposed which were undoubtedly driven by the differences in the objective and subjective circumstances of each case.
In relation to the sentences imposed upon his co-offenders, so far as the conspiracy to traffic cannabis charge is concerned, Mr Madden received a sentence of two years and three months’ imprisonment suspended upon the making of a drug and alcohol treatment order. Mr Beniamini received a sentence of 14 months and 15 days with a non-parole period of nine months. The starting point for his sentence was a sentence of 17 months. While the offender in the present case had a role more significant than Mr Beniamini and different from Mr Madden, he has a much less significant criminal history than either of them.
In my view, the charges of possession of a drug of dependence relating to 0.935 g of cocaine (CC 2022/1862) and the charge of possessing the knuckle dusters (CC 2021/11405) are matters which may be dealt with by fines. They will be subject to fines of $1000 and $500, respectively.
In relation to the balance of the charges, no sentence other than a sentence of imprisonment is appropriate. The starting points and sentences that will be imposed are summarised in the following table.
Charge Starting Sentence Cumulation point Conspiracy to cultivate trafficable quantity 24 months 20 months of cannabis (CC 2021/11941) (taking into account CC 2022/6062) Traffic in a controlled drug (cocaine) 20 months 17 months 10 months (SCANN 2022/189) Traffic in a controlled drug (cocaine) 20 months 17 months 10 months (CC 2021/11404) Money laundering (SCANN 2022/192) 12 months 10 months 2 months Aggregate sentence 42 months
The next issue is that which was at the forefront of the submissions made on behalf of the offender, namely, the manner in which the sentence should be served. The offender has been assessed as suitable for both an intensive correction order and community service. I consider that the offender’s prospects of rehabilitation are good. I consider that a period of intensive supervision in the community during a substantial sentence is likely to consolidate the trajectory that the offender is presently on.
Given that the sentence exceeds two years, on the assumption that s 11(3) of the CS Act applies to the aggregate rather than individual sentences, service of a sentence by way of intensive correction is only available if the court considers it is appropriate to make such an order, having regard to the matters set out in s 11(3). Having considered each of those matters, and the potential for the making of a combination sentence which I refer to below, I do consider that it is appropriate to make an intensive correction order for a period of greater than two years.
The real issue is whether or not a sentence served in the community pursuant to an intensive correction order would adequately meet the needs for punishment, denunciation and general deterrence. In my view, that would only be the case if the sentence also incorporates fines and a requirement to perform community service.
The author of the pre-sentence report makes a recommendation that a non-association order be made that the offender not knowingly contact either directly or indirectly any current or previous member of an outlaw motorcycle gang. For persons who have or claim to have departed from outlaw motorcycle gangs, continuing association with persons who share or have shared an antisocial attitude of defiance to the law is an issue. There is certainly evidence in the present case of ongoing association with persons who have been but are no longer members of outlaw motorcycle gangs. However, s 21 of the CS Act requires that a non-association order be related to named persons and s 23 requires that the court be satisfied that it is “necessary and reasonable” to make an order for one of three specified purposes. It is therefore not possible to make an order in the terms recommended in the pre-sentence report. The prosecution made no submission that a non-association order should be made and did not identify any persons in relation to whom it submitted a non-association order should be made. I therefore decline to make a non-association order.
The author of the pre-sentence report also recommended a condition allowing the offender to travel to Queanbeyan without a travel permit from ACT Corrective Services for the purposes of visiting his children only. The parties did not direct any submissions to such a condition. The requirement to obtain the Director-General’s approval for leaving the ACT is one of the core conditions of an intensive correction order pursuant to s 42(1)(h)(i) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act). The power to impose other conditions on an intensive correction order under s 11 of the CS Act is limited by the fact that the condition must not be inconsistent with the CSA Act. This appears to preclude conditions which would have the effect of dispensing with the requirement of a core condition. In those circumstances, I do not consider that the recommended condition should be imposed. I note that the power for the Director-General’s approval of leaving the ACT is not expressed in a manner that would require each approval to be a one-off approval. Thus, it may be possible to achieve administratively practicable arrangements for a person with family connections in Queanbeyan without the need for a court order.
Orders
I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 9 August 2023
DPP
Wright [2023] ACTSC 196
On 3 and 4 August 2021, the offender attended the residence in Calwell. He arranged for an electrician to attend and monitor the temperature of the grow room.
On 14 September 2021, police executed a search warrant at Mr Madden’s residence. They located the grow room in the locked garage. There were 15 planter pots set up with 15 corresponding lampshades. The cannabis plants had already been cut at the roots and were not located. 12 root balls were located in the garage and another two in the backyard. Bags of loose cannabis were also found, comprising: (a) 74.3 g of cannabis in a bag found in the bedroom; (b) 813.3 g of cannabis in an orange bag found in the kitchen; (c) 110.6 g of cannabis in a green container found in the kitchen; (d) 1.5 g of loose cannabis and 12 root balls in the garage; and (e) 220.3 g of cannabis stem and two root balls in the backyard.
Mr Madden was questioned under caution by police. He stated that “a friend” had bought the hydroponic equipment for him as a favour. He refused to provide details about the friend but indicated that they had given him instructions most of the time.
Mr Madden did not have a key to the garage. The offender had left his key with the electrician to provide access to the grow room.
Mr Madden’s mobile phone was examined by police and was found to contain a photograph of the offender crouching behind a mature cannabis plant in the garage at Mr Madden’s residence.
These facts give rise to the charge of conspiracy to cultivate a trafficable quantity of cannabis (CC 2021/11941).
At 9.31pm on 25 November 2021, police executed a search warrant at the offender’s residence in Braddon. Police located the following items: (a) instructions for growing plants hydroponically; and (b) a silver Renault van bearing New South Wales registration, parked in the building’s car space, containing growing equipment.
The growing equipment found in the van gives rise to the scheduled offence (CC 2022/6062).
Neither the offender nor Mr Cummins were arrested or charged after the execution of the search warrants.
On 24 July 2022, a conversation was intercepted between Mr Cummins and the offender. They discussed the search warrant and the offender recalled that “there was some white powder in a bag” at his house at the time of the warrant execution.
The offender continued to traffic cocaine following the police searches on 23 July 2021, up until his arrest on 25 November 2021. Recorded telephone conversations between Mr Cummins and the offender explicitly made reference to the purchase of cocaine and its quality.
From at least 1 October 2021, the offender sold cocaine to a street dealer of cocaine. On 29 October 2021, police recorded a telephone conversation between Mr Cummins and the offender, during which Mr Cummins told the offender that he was going to send the street dealer to meet him in Braddon. The police recorded telephone conversations between the offender and the street dealer on 30 October 2021 arranging to meet in Braddon for the offender to supply him with cocaine. The street dealer subsequently met with the offender from time to time to purchase cocaine to replenish supplies for his street dealing operation. Text messages indicated that he was selling cocaine for $300 per one gram bag.
On 25 November 2021, police executed a further search warrant at the offender’s home in Braddon. Police located the following items: (a) two small freezer bags, containing a total of 12.198 g of white powder that was found to contain cocaine (this gave rise to charge CC 2021/11404); (b) $15,730 in cash (this gave rise to charge SCANN 2022/192); (c) a set of knuckle dusters on the loungeroom table, later identified as a prohibited weapon (this gave rise to charge CC 2021/11405); (d) a blender on the kitchen cooktop with white powder residue inside; and (e) electronic scales in the kitchen with white powder residue on them. Objective seriousness
In sentencing Mr Beniamini, I assessed the objective seriousness of the conspiracy to cultivate a trafficable quantity of cannabis as being in the low to mid-range of objective seriousness for this offence. That was principally because, despite the small number of plants, only slightly above the minimum for a trafficable quantity, there was a degree of sophistication in the preparation and maintenance of the grow room. Even though the relevant facts are not precisely the same, the same characterisation is appropriate.
The scheduled offence of possessing equipment to cultivate a controlled plant must be characterised as being in the low-range of objective seriousness because the equipment is not described in the Statement of Facts other than as “hydroponic growing equipment”. The reference to “hydroponic” appears to be inaccurate as, so far as the evidence discloses, the cannabis was not grown hydroponically but rather in soil. However, for present purposes it may be assumed that it is equipment of the nature of that installed at the grow room.
The two charges of trafficking in cocaine both represent activities of a user/dealer. There is specific evidence of trafficking to a street-level dealer in relation to the second charge. Both may be categorised as in the mid-range of objective seriousness. Having regard to the quantity of drugs proved to have been involved, the first in time offence involving 139 g of cocaine is more serious than the subsequent offence involving 12.198 g, notwithstanding the explicit evidence of trafficking.
The drugs of dependence charge relating to the small quantity of cocaine found at the offender’s home in Braddon is at the low end of objective seriousness for that offence.
The money laundering charge is closely related to the second charge of trafficking in cocaine. The money was the direct product of criminal activity. It was a substantial amount. This offence is in the mid-range of objective seriousness.
Having regard to the scope of the offence of possessing a prohibited weapon, the possession of the knuckle dusters is at the low end of objective seriousness for this offence.
He has a family history of heart disease. He has had various cardiovascular problems since his early 20s. In March 2023 he collapsed with tachycardia and hypertension. He is on the waiting list for the implantation of a heart monitoring device. He also has obstructive sleep apnoea and uses a CPAP machine. He has seen a psychologist on three occasions but has paused that process until after the outcome of the sentencing process is known.
The report of Mr Sheehan recalls: “He is approaching an age when disillusionment with crime culture is common with antisocial males, as processes of maturation and also the physical ageing process can work to shift values and interests positively”.
He is assessed by the author of the pre-sentence report as being at a medium risk of general reoffending. The author expressed concerns about his potential for associations with former members of the OMCG. The author suggested a non-association order. He is assessed by the author of the pre-sentence report as being suitable for a community service work condition and suitable for an intensive correction order.
So far as the author’s concerns of ongoing contact with former members of outlaw motorcycle gangs, the offender was asked questions in cross-examination about his involvement with a group known as the “All Brothers Crew”, a group of former OMCG members, but the questioning did not extend beyond the fact that he has contact with certain named individuals.