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[2015] ACTSC 145
Supreme Court of the ACT
2015-06-05
Refshauge ACJ
Original judgment source is linked above.
1. Rhys Wilkins be convicted of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013.
2. Rhys Wilkins be sentenced to 12 months imprisonment to commence on 8 March 2015.
3. Rhys Wilkins be convicted of possessing methylamphetamine for the purpose of sale or supply to another person on 10 October 2014.
4. Rhys Wilkins be sentenced to 16 months imprisonment to commence on 8 May 2015, that is to be cumulative as to 6 months on the first sentence.
5. The sentence be suspended today for a period of 2 years.
6. Rhys Wilkins be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with the following conditions:
(a) a probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him decides is appropriate and that he obey all reasonable directions of the person supervising him; and
(b) a community service condition that he perform 150 hours of community service work within 15 months.
CRIMINAL LAW - Jurisdiction, practice and procedure - Sentencing - Possessing methylamphetamine for the purpose of sale or supply to another person - Offender has completed rehabilitation
Crimes (Sentencing) Act 2005 (ACT), ss 7, 27, 33(1)
Criminal Code Regulation 2005 (ACT), Item 44, Pt 1.1, Sch 1
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), Pt 8
Bui v The Queen [2015] ACTCA 5
Cameron v The Queen (2002) 209 CLR 339
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Rubino v The Queen [2015] ACTCA 22
R v DF (No 2) (2012) 257 FLR 31
R v Kilicaslan [2015] ACTSC 39
R v Robertson (Unreported, Australian Capital Territory Supreme Court, Refshauge J, ACT SCC No 53A and 53B of 2012, 25 October 2013)
R v Spencer [2014] ACTSC 364
R v Wilkins [2015] ACTSC 8
Saga v Reid [2010] ACTSC 59
Wilkins v Hague (2011) 258 FLR 355
1. There can be no doubt that the use of illicit drugs is a severe problem for the community. Users are often, but not invariably, unable to maintain employment. They, therefore, have to resort to offences of dishonesty to obtain funds to buy the drugs to feed their habit. Their family relationships often disintegrate and their children are often neglected or removed from their care.
2. Nevertheless, drug addiction can be pernicious and difficult to manage. As I pointed out in Saga v Reid [2010] ACTSC 59 at [89], drug addiction can take a number of attempts at rehabilitation before it is successful.
3. Thus, trafficking in illicit drugs is rightly regarded as a serious offence. Used not only to maintain the user, with the problems to which I have referred, it is often the means by which new addicts are created.
4. The courts must do their part to protect the community from these offences. That clearly makes it important for the court not only to encourage drug addicts to rehabilitate but also to disrupt the distribution of drugs and show, by the sentences set, that the distribution of drugs is unacceptable in our society.
5. Now appearing before me for sentence for two serious drug offences is Rhys Wilkins, who has pleaded guilty to two counts of possessing a drug of dependence, namely methylamphetamine, for sale or supply.
6. In addition, three offences were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). At the sentencing hearing, however, the Crown offered no evidence on these offences and I dismissed them. They, therefore, play no part in the sentencing of Mr Wilkins.
7. Possessing methylamphetamine for sale or supply is an offence against s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT), and attracts a maximum penalty of 500 penalty units (that is a fine, at the time of the first offence, of $70,000 and, at the time of the second offence, of $75,000) and imprisonment for five years.
8. The two offences for which I must sentence Mr Wilkins are, therefore, serious offences, as assessed by reference to the yardstick of the maximum statutory penalty which the High Court has required, in authorities such as Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31], sentencing courts to use. They are not, however, by that yardstick, the most serious offences in the criminal calendar and share the same maximum punishment with offences such as dishonestly taking a motor vehicle without the owner's consent, going equipped with an offensive weapon for theft, making false statements in a statutory declaration and, without the fine, assault occasioning actual bodily harm and making a threat to inflict grievous bodily harm.
9. There were two incidents which gave rise to these charges. The first case involved police executing a search warrant on 9 December 2013. Under authority of the warrant, they entered and searched a one-bedroom apartment in Phillip in which Mr Wilkins lived. During the search, police found and seized two small plastic bags containing a clear crystal substance, one in the laundry and the other in the kitchen. They also seized a number of other items including a glass smoking implement with residue that was later analysed and shown to be methylamphetamine, a grey handled pair of scissors on which a powdered residue was located, also later shown on analysis to be methylamphetamine, $7,465 in cash, a set of silver scales and some other items I do not need to mention.
10. The clear crystal substance found in the two bags was analysed and weighed. The total weight of the substance was 6.348 grams. It was found to contain methylamphetamine with a pure weight of 4.81 grams.
11. Mr Wilkins told police of his financial circumstances; he was then unemployed but did not receive any government income support. He was living on an employment termination payout and he had a small amount of savings. He was polite and co-operative with police during the search and subsequent questioning. He was, however, not formally interviewed.
12. As a result of this search, a summons was issued on 14 May 2014 charging Mr Wilkins with trafficking in methylamphetamine.
13. He appeared in the ACT Magistrates Court on 27 June 2014 in accordance with the summons and entered a plea of not guilty to the charge.
14. After some adjournments, Mr Wilkins was, on 25 September 2014, committed for trial to this Court on the charge of trafficking in methylamphetamine. On 5 November 2014, an indictment dated 4 November 2014 was filed charging Mr Wilkins with that offence.
15. On 3 March 2015, the trial was listed to commence on 22 June 2015.
16. In the meantime, on 10 October 2014, while Mr Wilkins was on bail for the earlier charge, police again executed a search warrant and searched Mr Wilkins' then home, a two-bedroom unit in Curtin. They seized a clear zip lock bag containing 8.418 grams of a white crystalline substance. They also found two other bags, one in a drawer in the kitchen containing a white crystalline substance and the other on a shelf in the kitchen pantry cupboard containing a brown crystalline substance. Police also found $2,600 in cash in the living room and, in a storage shed in the courtyard of the premises, $400 in cash in a brown paper bag which also contained a plastic zip lock bag holding a large number of similar bags.
17. He was arrested and charged again with trafficking in methylamphetamine.
18. The white crystalline substances were analysed and shown to be methylamphetamine. The amount in the bag found in the kitchen was 0.174 grams but I had no information as to whether the substance in the other bag was methylamphetamine or its weight.
19. Mr Wilkins explained to police that the money had been withdrawn from his bank account and had been won by him from playing poker machines. In this regard, I note that, in a bail application I heard on 7 January 2015, R v Wilkins [2015] ACTSC 8, I commended the industry of the lawyers for Mr Wilkins who had obtained material from a local club which I described as follows (at [30]):
Finally, photographs taken from closed circuit television footage at the Canberra Southern Cross Club show Mr Wilkins receiving what appears to be quite significant amounts of cash from the Club on 8 and 9 October 2014.
20. Mr Wilkins was also questioned about other matters not presently relevant.
21. He appeared in the Magistrates Court that day and was remanded in custody. On the second adjournment, he pleaded not guilty to the charge. After some further adjournments, he was, on 18 December 2014, committed for trial to this court on the charge of trafficking in methylamphetamine.
22. Mr Wilkins remained in custody, but, on 7 January 2015, he was granted bail. See R v Wilkins.
23. The committal was mentioned in the Supreme Court on 5 February 2015 and it was indicated to the Court that the parties were discussing the proceedings and further adjournments were granted.
24. I have referred above to the indictment dated 4 November 2014 charging Mr Wilkins with trafficking in methylamphetamine on 9 December 2013. That offence was contrary to s 603(7) of the Criminal Code 2002 (ACT), which attracts a more severe maximum penalty than that for the offence of possessing methylamphetamine for sale or supply to another person.
25. On 20 March 2015, however, a further indictment dated 19 March 2015 was filed, charging Mr Wilkins with possessing methylamphetamine, on 9 December 2013, for the purpose of sale or supply.
26. On the same date, an indictment, also dated 19 March 2015, was filed charging Mr Wilkins with possessing methylamphetamine on 10 October 2014 for the purpose of sale or supply.
27. On 14 April 2015, Mr Wilkins pleaded guilty to the counts on the two indictments dated 19 March 2015. I assume that, in accordance with the practice established following R v DF (No 2) (2012) 257 FLR 31 at 38; [45], a Notice Declining to Proceed will be filed in respect of the indictment dated 4 November 2014.
28. It is, therefore, for these two charges of possessing methylamphetamine for sale or supply to another person that I must now sentence Mr Wilkins.
29. Mr Wilkins was born in 1975 and is now 40 years old, the only child of his parents. He was raised in a stable family environment.
30. I had occasion to deal with Mr Wilkins in an appeal I heard in 2011 when he was sentenced for an offence of negligent driving causing death: Wilkins v Hague (2011) 258 FLR 355. Those reasons were handed up to me in these proceedings and it is appropriate to set out the findings I then made as to his subjective circumstances. I said at 373; [137]-[143]:
140. Mr Wilkins has never used drugs and drinks socially.
31. I will take this into account, though in these proceedings, I had further information. He started his employment as an apprentice chef and, on completion, worked as a chef until he decided to move into the information technology (IT) sector.
32. In upholding his appeal in 2011, I re-sentenced Mr Wilkins to an effective sentence of 7 months and 21 days, suspended after he had served 4 months full-time custody and I made a Good Behaviour Order for 2 years. The criminal record admitted into evidence in these proceedings disclosed no further offences. Oddly, the record states that in the appeal I confirmed the orders of the Magistrates Court; that is not correct.
33. Mr Wilkins' father, with whom he was close, was supportive of him while he was in custody. His father, however, was ill with cancer and Mr Wilkins said that he died soon after Mr Wilkins was released from the Alexander Maconochie Centre (AMC). The author of the Pre-Sentence Report, however, recorded that Mr Wilkins' father died in 2013. I do not have to resolve the differences.
34. His mother, with whom he has a supportive relationship, lives in Victoria, however, and is not presently aware of these charges.
35. He suffered some mental health issues, namely anxiety, at the time of his incarceration and with the death of his father, exacerbated by the pressure placed on him by the disqualification of his driver licence. His employment required him to travel around Canberra. He also suffered from impulsivity.
36. He entered a relationship with a woman who, at the time, was a user of methylamphetamine, though he did not know that. He resisted using the drug for some time, but eventually did try it and soon, inevitably, became addicted. He did not rely on the mental stresses he had earlier suffered as an excuse for his descent into drug addiction, though I accept that it was a likely precipitator.
37. He did manage to exercise some discipline for, despite his addiction, he continued working and held down his IT job. He only used methylamphetamine before he went to work, after work and at weekends. He estimates that he used about half to one gram a week.
38. His explanation for the further offending even after his first contact with police was not unrealistic, though it was not significantly mitigating. He said that, after the first search, nothing happened for a long time; indeed, the summons did not issue until May 2014, over five months later. He says that he did not take the charge seriously at the time and just kept using.
40. When I granted Mr Wilkins bail in January 2015, he was required to enter the Arcadia House twelve week residential program. He did so and completed it. I have described that agency and its day program in R v Spencer [2014] ACTSC 364 at [24]- [28].
41. The Arcadia Transition Program, designed to empower the participant to make informed choices about a range of ongoing treatment options so as to experience an improved lifestyle consists of programs in Cognitive Behaviour Therapy, Drug Awareness, Health and Wellbeing, Relapse Prevention, Conflict Resolution, Self-Esteem, Anger Management, Living Skills, Hepatitis C Awareness, First Aid, SMART Recovery, Art Therapy and Harm Minimisation Strategies. It provides case management and requires planning for those leaving the program.
42. The Discharge Summary provided by the agency was supportive and positive. It stated:
Throughout the program, Rhys has presented as highly motivated and willing to learn new behaviours. He has been a helpful member of the community and regularly offered insightful comments to other members which have been highly valued. Rhys has also identified areas he personally needs to work on. By doing this, he has demonstrated insight and a high level of motivation to improve his skillset. This being said, there have also been some challenges Rhys has had to face. Throughout the program, he identified inconsistent and unrealistic thought patterns and has worked hard to challenge these. Rhys also showed initiative by stating that he wanted to participate in the day program after graduating to help solidify everything that he had learnt in his time spent in the residential phase.
Since his time throughout his stay at Arcadia, he has become a senior member in the community and helps guide the junior members through their journeys. Feedback from both staff and residents has demonstrated that Rhys is a valuable, honest member of the community who participates with enthusiasm. He has showed insight and initiative throughout the program and has taken challenges in his stride which has resulted in personal growth. Finally, Rhys has been required to provide random urine samples to ensure he remains abstinent. These were requested twice and both came back negative for all illicit substances.
43. He has now been abstinent for 10 months. Urinalysis since his release has confirmed this. He told me how much better he feels. He attends a gym and has reconnected with friends who are not drug users. He seemed quite positive.
44. He has two friends from his time at Arcadia House and he continues to attend Narcotics Anonymous and Alcoholics Anonymous. He has a rather ad hoc arrangement with Directions ACT with which agency he has contact approximately fortnightly.
45. Mr Wilkins was, at the time of his arrest, employed full-time as an IT contractor. He lost that position as a result of his incarceration but, in late April or early May this year, he obtained employment as an IT support worker. He may not be able to continue in that employment when the police check sought by his employer discloses the current offences. He told me, however, that he was well aware of this possibility and, if it happened, would seek further employment.
46. At that time Mr Wilkins had also been in a relationship for over eight months. His partner visited him while he was in custody. That relationship has, however, now ended and Mr Wilkins is living by himself in government rental accommodation.
47. As indicated above, the offence of possessing illicit drugs for the purpose of sale or supply is a serious matter. There are many statements of the courts to that effect.
48. As I pointed out in R v Kilicaslan [2015] ACTSC 39 at [24]:
Possession of drugs for supply is part of the means by which the social distress that drugs cause is spread through the community and to which the court needs to lend its power to try to curb.
49. It is important for me to bear in mind the legislature's direction that this offence is objectively less serious than the offence of trafficking in methylamphetamine, though it is not clear how the distinction is to be precisely identified so as to determine the objective seriousness of the offence.
50. In Bui v The Queen [2015] ACTCA 5, the Court of Appeal identified some principles concerning the sentencing of those convicted of trafficking in illicit drugs. While a different offence, it is a cognate offence and the principles may be generally applicable. The court there held that sentencing courts should at least identify the role of the offender, the weight of the amount of drug and the motivation for the offence.
51. In this case, it seems to me that Mr Wilkins was not a low-level street dealer but was not high up in the chain of supply. Mr A Doig, who appeared for Mr Wilkins, accepted that and Mr D Sahu Khan, who appeared for the Crown, agreed. His role, therefore, was not the most significant but also not the least significant. He was somewhere as a mid level dealer.
52. It is also the fact that the amount of drug involved was, in each occasion, a relatively low level, though the second amount is larger than the first. For the purpose of the provision in s 604 of the Criminal Code, which deems, unless the contrary is proved, possession of a traffickable quantity of methylamphetamine to be possession with the intention of sale, the traffickable quantity is 6.00 grams: Item 44 in Pt 1.1 of Sch 1 of the Criminal Code Regulation 2005 (ACT). This is a different offence and involves different circumstances but is a helpful very general guide.
53. The other matter is motive and, although the information was sparse, I note that Mr Wilkins was an addict. His financial circumstances, at least in the earlier case, are relevant and helpful. Further, although he had a good salary while he was working, there was no evidence to suggest that he was involved in any distribution for commercial gain. I accept that the likely dealing contemplated by the offending behaviour was not for profit.
54. The second offence was, of course, more serious because he had already been summonsed for the first offence. Indeed, he had, by then, been committed to this Court for trial and bailed to appear for his trial. The grant of bail ordinarily occurs at committal, despite him being summonsed originally. That he was, then, on conditional liberty also adds to the seriousness of the later offending. Offending while on conditional liberty is generally regarded as an aggravating factor, though I am not sure it aggravates the offence much more over the repetitive offending following being charged.
55. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is a significant consideration, in part because of the seriousness of the offence and in part because of the nature of the offence. While the repeat offending suggests some element of specific deterrence is necessary, the conduct of Mr Wilkins since his arrest suggests this should be at a minimal level.
56. Rehabilitation is important. It is important, in the case of drug offences, to support genuine efforts at reform. For a drug addict to become abstinent is very significant and that approach is evident from the current sentencing regime which makes specific provision for mechanisms to encourage this, such as the Deferred Sentencing Order under s 27 of the Crimes (Sentencing) Act and the provision of the Solaris Therapeutic Community within the AMC. As French CJ said in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32], "[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantee of community protection and is clearly in the public interest".
57. I take into account the plea of guilty entered by Mr Wilkins. It was at the earliest opportunity because the indictment to which he pleaded guilty did not contain the offences which were charged in the Magistrates Court nor for which he was committed. He pleaded guilty within less than a month after the charges were preferred. See Cameron v The Queen (2002) 209 CLR 339 at 343; [11]-[13].
58. I take into account the matters set out in s 33(1) of the Crimes (Sentencing) Act so far as I know them. These matters are set out above.
59. In particular, I accept that, while the second offence is more serious and shows some disregard for the law, he is now remorseful. Indeed, the plea entered to the particular offences is evidence of that, considering what offences they are and the available proof of them. That remorse is also shown in the fact that Mr Wilkins makes no claim for the return of the moneys seized in the execution of the two search warrants.
60. Mr Wilkins has, since being granted bail, taken the opportunity that I then gave him and has performed well. Such rehabilitation is deserving of appropriate leniency. See R v Robertson (Unreported, Australian Capital Territory Supreme Court, Refshauge J, ACT SCC No 53A and 53B of 2012, 25 October 2013). This approach was approved in Rubino v The Queen [2015] ACTCA 22 at [33].
61. He has also re-arranged his life-style to maximise the durability of his rehabilitation. He has suffered the breakdown of his relationship, and the breakdown was not particularly amicable, without reverting to drug use.
62. He has obtained employment and is confident that, if that is put at risk because of these offences, he will pursue further employment.
63. These matters are important as reinforcing his abstinence and providing protections from relapse. It is important for the courts to have special regard to the balance between sentences that denounce crimes and impose just punishment and those which, by disrupting employment, pro-social relationships and ongoing counselling, put achieved rehabilitation at risk and, in addition, confine offenders to associations with other offenders who are unlikely to strengthen a rehabilitative resolve. Of course, sometimes the seriousness of the offence and the objective circumstances make that inevitable but the balance needs to be carefully evaluated and struck.
64. I was referred by the Crown to R v Kilicaslan and I have read it carefully, reminding myself of the circumstances of that case. There are some similarities, but also significant differences. It is certainly not "on all fours" with this case. I do note, however, that the rehabilitation achieved by Mr Kilicaslan meant that while I increased the head sentence of the term of imprisonment he was then serving, I did not increase the non-parole period. That re-inforces the approach I propose to take here.
65. I note that Mr Wilkins has been assessed as suitable for a community work condition to a Good Behaviour Order and to serve a term of imprisonment by periodic detention.
66. I have come to the view that a term of imprisonment must be imposed; indeed, both counsel agreed on that outcome. The only question then is how it should be served. For that, I take into account all the matters to which I have referred.
67. As there are two sentences to be imposed, I must take care in ensuring that the sentences have a proper relationship with each other. I have also considered whether the sentences should be partly or wholly concurrent.
68. I then reviewed the length of the total term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of both the offences committed, but not more than that, and to ensure that the total sentence is not excessive. Where necessary to achieve this, I have adjusted the cumulation and the concurrence of the individual sentences.
1. I convict you of possessing methylamphetamine for the purpose of sale or supply to another person on 9 December 2013.
2. I sentence you to 12 months imprisonment to commence on 8 March 2015, to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
3. I convict you of possessing methylamphetamine for the purpose of sale or supply to another person on 10 October 2014.
4. I sentence you to 16 months imprisonment to commence on 8 May 2015, that is to be cumulative as to 6 months on the first sentence I have imposed. Had you not pleaded guilty, I would have sentenced you to 2 years imprisonment.
5. I suspend the sentence today for a period of 2 years.
6. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with the following conditions:
(a) a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you decides is appropriate and that you obey all reasonable directions of the person supervising you; and
(b) a community service condition that you perform 150 hours of community service work within 15 months.
I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge
R
Wilkins [2015] ACTSC 145
(2002) 209 CLR 339
(2011) 243 CLR 506
(2011) 244 CLR 120
(2012) 257 FLR 31
(2011) 258 FLR 355