R v Webster

Judicial Commission statistics

1. I have consulted the statistics kept by the Judicial Commission. For the Local Court, there are statistics relevant to 1,897 cases of the supply of illicit drugs (not including cannabis) less than the commercial quantity. In 49 cases, or 2.6% of the cases, the Local Court imposed a conditional release order without recording a conviction. In 18 cases, or 0.9% of cases, a fine only was imposed. In 24 cases, or 1.3% of the cases, there was a conditional release order made together with a conviction being recorded. In 631 cases, or 33.3% of all cases, a community corrections order was imposed. In 689, or 36.3% of all cases, an intensive correction order was imposed. In 486 cases, or 25.6% of cases, a prison sentence was imposed.
2. The prison sentences range between one month and 24 months. The median sentence was imprisonment for 12 months, with a non‑parole period of seven months. At the bottom of the 80% range the head sentence was nine months, with a non-parole period of either four or five months, and the top of the 80% range the head sentence was 18 months, with a non-parole period of nine months. In short, only in rough terms, a quarter of those sentenced for this offence in the Local Court are sentenced to imprisonment, the mid-range sentence is imprisonment for 12 months with a seven-month non-parole period. That must be contrasted with the fact that, as a result of being arrested for the offences charged in the indictment, the Defendant has spent two years, seven months, and 26 days, in custody.
3. Statistics are also available from the Judicial Commission for supplying illicit drugs less than the commercial quantity dealt with in higher courts. The total cases recorded in this Court are 1,048. One case has been the subject of dismissal under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 25 cases have been dealt with by the imposition of conditional release order without a conviction. One case has been dealt with under s 10A, that is, meaning by the recording of a conviction with no other penalty. Nineteen cases have been dealt with by way of a conditional release order with a conviction being recorded, 143 cases, that is 13.6% of the total cases, were dealt with by the imposition of a community corrections order. 533 cases, or 50.9% of cases, were dealt with by the imposition of an intensive corrections order. 324 cases were the subject of imprisonment, that is 30.9% of all cases where the sentence was imposed in this Court.
4. The range of head sentences was between six months and seven years imprisonment. The non-parole periods were between six months and three years. The median sentence imposed was two years imprisonment with a 12 month non-parole period. For the bottom of the 80% range, there was a head sentence of 18 months imprisonment with a 12 month non-parole period. The top of the 80% range was a sentence of three years imprisonment with a non‑parole period of 18 months. It can be seen that, for sentences imposed in this Court, just over 30% of the cases were dealt with by imprisonment, that is, in almost 70% of cases no full-time custodial order was imposed.

Comparing the time-served

1. Given that the Defendant spent two years, seven months, and 26 days, in custody, the top of the 80% range would only have required him to spend 18 months in custody. In other words, the amount of time the Defendant spent in custody far outstrips every possible penalty that this Court or the Local Court would normally impose. Indeed, given the Defendant's prior good character, it is highly unlikely that he would have been sentenced to imprisonment at all, and an order such as a community corrections order or intensive correction order would probably have been imposed.

The Defendant's submission

1. The Defendant, through his counsel, asks me to deal with the Defendant under s 10(1)(a). In R v Mauger [2012] NSWCCA 51 the offender pleaded guilty to supplying 5.13 grams, or 20 tablets, of MDMA, contrary to s 25 (1) of the Drug Misuse and Trafficking Act 1985. In other words, Mr Mauger pleaded guilty to the offence which I found the Defendant had committed. Mr Mauger also asked the Court to take into account on a Form 1 a charge of possessing 3.1 grams of cannabis. As the judgment of Harrison J points out, the amount of ecstasy was four times the indictable quantity, but still less than the commercial quantity. At the time that judgment was delivered, the offence could not have been dealt with in the Local Court, but it can now be so dealt with. Of course, when dealt with in the Local Court, the maximum penalty that can be imposed is imprisonment for two years. The maximum penalty that can be imposed by this Court is imprisonment for 15 years. English DCJ had dealt with Mr Mauger under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
2. Like the Defendant, Mr Mauger had no criminal antecedents. His personal circumstances were excellent. I shall have more to say about the Defendant's personal circumstances a little later. Harrison J, with whom Beazley JA (as her Excellency then was) and McCallum J (as she then was) agreed with Harrison J. His Honour set out these applicable principles, bearing in mind that R v Mauger was a Crown appeal: "16 The Crown acknowledged that the primary purpose of a Crown appeal against sentence was to lay down general principles for the governance and guidance of courts having the duty of sentencing convicted persons and that the Court had a residual discretion in the exercise of its jurisdiction under s 5D to decline to interfere with a sentence even though the sentence was erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 283 ALR 1 at [1]. 17 In order to succeed on ground 1 of this appeal, the Crown had to establish that the sentencing judge's fact findings were not open on the evidence or that error is shown in the sense referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5; SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219 at [75]. In order to succeed on ground 2 of this appeal the Crown had to demonstrate error in sentencing in the sense discussed in House v R and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], [58]. By asserting manifest inadequacy, the Crown contends that the sentencing judge's orders were unreasonable or plainly unjust. In such circumstances intervention is warranted only if this Court considers that in all of the circumstances there was some misapplication of principle even though it may not be specifically identifiable in the statement of reasons: see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Dinsdale v The Queen at [58]. Section 10 bonds 18 Section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws: Cobiac v Liddy (1969) 119 CLR 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50]. 19 Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305. However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577. 20 In Re Attorney-General's Application under s 37 at [132], Howie J said this: "[132]... The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament's view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable." 21 Considerations of extra curial punishment may be relevant to the exercise of the discretion conferred by s 10: see R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [49] - [50]; R v TMTW [2008] NSWCCA 50 at [52]. However, it is not proper to dismiss a charge without conviction merely to avoid the operation of some other legislative provision that is otherwise applicable: R v Fing (unreported NSWCCA 25 July 1994); R v Stephenson [2010] NSWSC 779 at [66]."
3. Perhaps to egg the pudding somewhat, learned counsel for the Defendant also referred me to Regina v Van Nam Nguyen [2002] NSWCCA 183 where Bergin J (as she then was), with whom Stein JA and Carruthers AJ agreed, said this at [50]: "50 The capacity for a court to dismiss charges under s.556A of the Crimes Act reflected the willingness of the legislature, and thus the community, to provide to first offenders, in certain circumstances, a second chance to maintain a reputation of good character. The fact that such an opportunity was afforded to the respondent is in my view appropriately recognised by his Honour in regarding the respondent as a man of good character with no relevant criminal history. I am not satisfied that his Honour fell into error in this approach."
4. Of course, s 556A of the Crimes Act 1900 has been repealed, but it has been replaced by s 10 of the Crimes (Sentencing Procedure) Act 1999. In Van Nam Nguyen the respondent had pleaded guilty to a count on indictment that he supplied not less than the commercial quantity of a prohibited drug, namely heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence was imprisonment for 20 years.
5. I was also referred by counsel for the Defendant to R v Paris [2001] NSWCCA 83 and to Hoffenberg v The District Court of New South Wales [2010] NSWCA 142.

Extra-curial punishment

1. One factor to consider in this case is what can be described as "extra-curial punishment". That is, a term of imprisonment already served is likely greater than that any court would have sentenced the Defendant.

The antecedents

1. The matters which I have to take into account in considering whether to deal with the matter under s 10 are contained in subsection 3. The first is the person's character, antecedents, age, health, and mental condition. At the time that he was arrested, the Defendant was 38 years old. He is now 41 years old. He, as I have said already, was a man of prior good character. He grew up in a strict Presbyterian family, his father holding a ministry in the Presbyterian Church and was, at various times, the holder of senior office in that Church both in Victoria and later in New South Wales.
2. There is affidavit evidence from the Defendant's youngest brother of their very strict upbringing and the experience of corporal punishment as discipline, and the fact that the Defendant, being a gay man, found his experience of teenage years with his growing up in the family to be a great burden to him, no doubt a physical, intellectual, and emotional, burden. The Defendant is estranged from his parents and has been since he left school.
3. He has two older brothers, but they were adopted, and they now live in Victoria where the family initially was located. The Defendant has two younger brothers, the next brother who is the elder of his two younger brothers, has a genetic disability and works in a bakery in Newcastle where the family moved after leaving Victoria. The Defendant's younger brother, who swore an affidavit on 8 May 2022, currently lives and works in Sweden, but came to Australia to Sydney to support his brother during the trial. The brothers are obviously very close.
4. The Defendant's background can be best gleaned from Exhibit 38, a reference from a personal friend, Associate Professor Caleb Ferguson, and from his younger brother's, Scott Webster's, affidavit. According to Associate Professor Ferguson, the Defendant has worked mostly in hospitality. He refers to the Defendant working at the Rockpool Bar and Grill in Sydney, and at the Ivy Hotel. He also tells me that the Defendant worked as a butler for a well-known Australian entrepreneur, Mr John Symond, at his residence at Potts Point. Associate Professor Ferguson also refers to the Defendant's helping him train for many sporting events, including marathons and triathlons, and he also referred to the Defendant as being a strong ocean swimmer, and having been for some time a volunteer life safer and a member of the North Bondi Surf Life Saving Club. Associate Professor Ferguson's letter also tells me that the Defendant has career ambitions in sports, exercise, and nutrition, amongst other goals. One goal is to start his own brand of swimwear.
5. From the Defendant's brother's affidavit, I know that the Defendant visited his brother in Sweden in Christmas 2018, and most recently in the European summer of 2019, and I know from the evidence given at the trial that he was absent from Australia from either 15 or 16 June 2019 until 30 July 2019, when he returned and took up temporary accommodation at the premises at Birchgrove where he was arrested. The Defendant's brother's affidavit tells me that after the Defendant's brother and the Defendant travelled in Sweden, the Defendant decided to travel to London to meet a previous employer where a job role was discussed, a role that would require the Defendant to live in London. He was also taken by that former employer to Malta where the employer showed him the new residence he had on that island, and the possible prospects for employment there. However, the Defendant decided to come back to Australia where he was offered a job in a restaurant in Sydney which the Defendant had been wanting to take, and in fact had taken up that work at the time of his arrest.
6. The Defendant was only staying at the Birchgrove property until the room that he had previously been renting in Bondi Junction again became available to him, the landlord having rented it out when the Defendant went overseas for his European summer holiday. Everything points to the Defendant being involved in providing personal service, either in restaurants or as a member of the staff of a wealthy household, and otherwise providing services to members of the community as a sports trainer and the like.

Prospects of rehabilitation

1. One thing which the Courts are acutely aware of and consider as of being of great moment are the prospects of rehabilitation. The Defendant has provided to me a letter which is Exhibit 39. That commences with this paragraph: "The last 2 years and 8 months of incarceration [have] been a stressful yet reflective time for me. I have witnessed first-hand the impact that the drug trade has had on society, particularly when coupled with addiction. I regret having any part of this. I have no desire to be around or involved with drugs at all."
2. The Defendant clearly regrets what has happened, and clearly has learnt the cost of illicit drugs in our community. Anyone who has even visited a gaol, let alone spent any time within a gaol, knows the extent to which drugs cause addiction and ruin the lives of those addicted, and affect substantially the lives of those with whom they live and work. The simple fact is that illicit drugs ruin families and cause stress for many members of the community who are affected directly by drug addiction.
3. I am confident from not only what the Defendant says in his letter but also by the way he has conducted himself in this trial that the Defendant will not reoffend. The prospects of recidivism are low, the prospects of rehabilitation are excellent.
4. Associate Professor Ferguson has expressed this view about the future: "I believe Cameron's interest in sport, nutrition and cycling warrant exploration for future career opportunities, both locally, but also internationally. I feel some time overseas would be of advantage to further reflect, explore new opportunities and have a fresh start in life."
5. There is work available for the Defendant in Sweden, working for his brother, who runs a business known as "Webster Body Therapy and Massage". Towards the end of his affidavit, Mr Scott Webster said this: "Now he is in the community, I have offered Cameron my home and work in Sweden. I have financial security for him if ever he needs it. He also has employment prospects in London as I understand it."

The nature of the offence

1. Under s 10(3)(b) I am required to take into account the "trivial nature of the offence". The offence with which I am currently dealing cannot in my view be described as trivial. Section 10(3)(c) requires me to consider the extenuating circumstances in which the offence was committed, but I fail to see any extenuating circumstances at all.

Other considerations

1. Under s 10(3)(d) I am permitted to take into account any other matter that I think proper to consider. Here I consider the fact that the Defendant has spent in prison as I have said two years, seven months, and 26 days, far longer than any possible sentence that might have been imposed upon him. I also take into account the circumstances in which he spent this time in custody. In his letter, Exhibit 39, the Defendant said this: "My time incarcerated was particularly hard due to my sexuality and the impact of the COVID-19 pandemic. I was incarcerated for the entire pandemic. Visits were not available to me for most of the time. Most of the time I was incarcerated. AVL visits were cancelled too. This meant that I had very little physical contact with my friends and family. I had no meaningful connection with others that I cared for. There were also regular staff shortages which meant that we inmates were locked in and this became the norm. We were locked in sometimes several days or weeks at a time. All educational programs were cancelled. I did however have employment for about two years. I worked in trusted positions. I worked as an AVL sweeper and reception sweeper. To gain that employment I had an interview with the intelligence manager due to the sensitive nature of the information that I would be privy to. I also was required to work directly with officers in the general population and protection inmates across all classifications."
2. Not only were the circumstances of incarceration severe, but also the Defendant did his best to co-operate with authorities by working in trusted positions in the custodial system, and was clearly well regarded by prison management. That is something that requires adjustment in favour of the Defendant. However, the important thing to note is that the terms of the incarceration were much more onerous than they have been at most times prior to the COVID-19 pandemic. Indeed, one of the reasons there were staff shortages in prison during the COVID‑19 pandemic was because of Corrective Services Officers becoming COVID-positive when they mingled with people outside the corrective system. After that, COVID-19 found its way into Correctional institutions.
3. In R v Mauger a matter that was taken into account by English DCJ was that the offender in that case would suffer adverse consequences in his employment, and that his ability to travel overseas would be impaired if recorded. There was no direct evidence before me of any inability of the Defendant to travel overseas if a conviction be recorded. However, experience teaches me that a conviction for deemed drug trafficking would make it almost impossible for the Defendant to visit the United States of America and perhaps a large number of other countries. Whether that would prevent his ability to enter the United Kingdom or the Kingdom of Sweden I do not know: there is no direct evidence. However, the inference I drew is that, given the nature of the Defendant's work, essentially working with and for other human beings in a personal relationship, that conviction could well be very disadvantageous in permitting the Defendant to find work. It would be hard to see how the Defendant could be employed as a butler or the like in a wealthy family if it was known that he had a conviction for drug trafficking.

Consideration

1. In short, I accede to the application made under s 10(1)(a), the reasons are the Defendant's prior good character, the fact that he has spent in gaol a substantial period of time when, had he not been incarcerated, he might well not have received any full-time custodial sentence at all, and indeed on the statistics available it is unlikely he would have received any full time custodial sentence. The imprisonment which he has spent should be seen as a form of extra-curial punishment, and the extent of that punishment is greater than any normal prison sentence given the COVID-19 pandemic, and probably the Defendant's sexuality would have made him very vulnerable in a custodial institution. I also take into account under s 10 that the fact of a recording of a conviction might jeopardise the Defendant's ability to find work in the fields in which he normally seeks work, and may interfere with his ability to travel overseas where he might find work in any of his usual chosen fields.

Section 166 certificate

1. The remaining offences are the offences dealt with the s 166 certificate. The Defendant pleaded guilty to possessing, on 4 September 2019 at Birchgrove, the prohibited drug cannabis. The amount of cannabis found by the police in his bedroom was 24.9 grams of the drug. The small quantity of cannabis is 30 grams, the traffickable quantity of 300 grams, the indictable quantity is a kilogram, the commercial quantity is 25 kilograms, and the large commercial quantity is 100 kilograms. This is a relatively trivial offence, always dealt with in the Local Court, and it usually attracts a monetary fine.
2. The Defendant has also pleaded guilty to a charge of possession of a small quantity of cocaine found in his bedroom in a tin behind the television, with one folded piece of paper containing traces of cocaine. The amount of the cocaine could not be weighed. In a small resealable plastic bag contained 0.1 grams of cocaine. The total amount of cocaine which he possessed was 0.1 gram. The small quantity of cocaine is one gram, the trafficable quantity is three grams, the indictable quantity is five grams, the commercial quantity is 250 grams, and a large commercial quantity is a kilogram. The Defendant therefore had one‑tenth of a small quantity of the drug. The Learned Counsel for the Defendant submitted that the decision by the Office of the Director of Public Prosecutions to proceed with the charge of the possession of cocaine was "absurd".
3. The final charge to which the Defendant pleaded guilty was the possession of a drug manufacture apparatus, an offence against s 24A(1)(b) of the Drug Misuse and Trafficking Act 1985. Under the Drug Misuse and Trafficking Regulation 2011, which has now been repealed but was current at the time of the alleged offending, drug manufacturing apparatus was defined to include a drug encapsulator. Learned counsel for the Defendant submitted that, in essence, the possession of the drug encapsulator relied upon by the Crown as evidence of the intention of the Defendant to "supply" the traffickable quantity of MDMA is really subsumed in that offence. I agree.
4. It appears to me that, bearing in mind what I have said so far, in respect not only of the offence found by me, that is the statutory alternative count to count 5 in the indictment, that I should also apply s 10(1)(a) to the plea of guilty to the possession of the encapsulator and the plea of guilty to the possession of the miniscule amount of cocaine.
5. The only remaining issue really is what ought I do in respect of the possession of the 24.9 grams of cannabis. Of course, the maximum penalty of the offence is two years' imprisonment but, as I have pointed out, what generally happens is that the Local Court imposes a monetary penalty. Here, assuming the Defendant has been out of work for two years, seven months, and 26 days, imposing a monetary penalty would, in my view, be absurd because of the likely inability of the Defendant to pay any fine. Imposing a nominal period of imprisonment might seem to many to be appropriate, but no sentence of imprisonment for such an offence would survive any appeal and, therefore, is completely inappropriate.
6. The issue then becomes whether I should deal with the matter under s 10(1)(a) or whether I should deal with it under s 10A. Bearing in mind the other considerations, I have determined that is appropriate that that charge will be dealt with under s 10(1)(a).
7. I revoke the conviction recorded for the offence of supplying a traffickable quantity of the drug 3, 4-methylenedioxymethylamphetamine. In respect of the offence of the deemed supply of MDMA, and in respect of the offences known as sequences 3, 5 and 11 under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but, having regard to your prior good character and the other circumstances which I have described, I am satisfied that it is inexpedient to inflict any punishment. I order that each of the charges be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2022