R v Wilkinson

District Court of NSW|2019-03-29

INTRODUCTION

Melinda Wilkinson appears for sentence. She has pleaded guilty to one count that on 16 September 2017 at Penrith she did knowingly take part in the supply of a prohibited drug, namely 5.48 grams of 3,4‑methylenedioxyamphetamine known as MDA, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ('The Act').
The trafficable quantity for MDA is 0.75 grams and the indictable quantity is 1.25 grams. The statutory maximum penalty is 15 years. It is a guidepost for a sentencing judge to steer by but not aim for.
I have been asked to take into account one matter on a form 1 which is possession of 0.21 grams of ketamine contrary to s 10(1) of the Drug Misuse and Trafficking Act.

THE PLEA

The offender made admissions at the scene and she confirmed those admissions in her record of interview. To one extent it could be said that she has entered a plea at the earliest opportunity.
She was originally charged with knowingly concerned but that was not the indictment that was first put before this Court, and then there was a further indictment of knowingly concerned and a plea was entered.
The Crown submits that the extent of the plea should be somewhere between 5 and 10%. I allow a discount for the utility of 10%.

THE FACTS

At about 10.55am on Saturday 16 September 2017 the offender was walking towards the front ticketing gates at the entrance of the Defqon1 music Festival at the International Regatta Centre in Penrith. She was approached by a police dog which made an indication towards her.
She was stopped and cautioned before being asked, "Do you have anything that you shouldn't have?" where the offender replied, "I think so, up there." The offender was taken to a secure area and searched by Constable Gammagay and Senior Constable McDonald. The offender removed from her vagina a condom that contained a number of clear resealable bags including one clear resealable bag containing 0.60 grams of a crystalline substance, one clear resealable bag containing 0.61 grams of white powder and 3 x clear resealable bags containing 6.16 grams of green Ninja Turtle MDMA tablets - bag 1, ten tablets, bag 2, ten tablets, bag 3, eight tablets.
Subsequent analysis of the prohibited items found that the pills were 27 tablets of MDA. The three resealable bags weighed a total of 5.48 grams and that the white powder was 0.21 grams of ketamine.
In her record of interview, the offender told police that she had caught the bus with a group of around ten people at 6am on 16 September 2017 from Port Stephens to attend the music festival. She knew the powder and the MDA pills were prohibited drugs.
The crystalline substance belonged to her and she was carrying the powder and MDA pills in for her friend Jayden Palmer and Jayden gave her the pills in a big bunch and asked her to take the drugs into the festival on the bus on the way to Sydney and she agreed to do so.

OBJECTIVE SERIOUSNESS

The trafficable quantity for MDA is 0.75 grams. The indictable quantity is 1.25 grams. The offender had 5.48 grams. The Crown relies upon the deeming provision pursuant to s 29 of the Act.
Bag 1 contained ten tablets, bag 2 contained ten tablets and bag 3 contained eight tablets.
She told police that she received the pills from a friend, Jayden Palmer, who asked her to take the drugs into the festival and she agreed to do so. This occurred on the bus trip to the festival. She appeared to be the naïve mule but knowing full-well that the drugs concealed in her vagina were illegal. It was on the spur of the moment without any great planning that this offending came to be.
The dissemination and use of drugs at a music festival is an illegal and highly dangerous act. Deaths have resulted from this in the past.
There appears to be no financial gain on the part of the offender. I have taken into account the weight of the drugs, the packaging of the drugs and the role played by the offender in assessing the objective seriousness of the offence. Trafficking of drugs is objectively serious. If the offender had not been caught, 28 tablets would have found their way into the festival. Her conduct needs to be denounced.
I have formed the view that the objective seriousness is at the low end of the scale for trafficking simpliciter. She was not an addict and had not intended to profit from what she did. She was a naïve mule.

SUBJECTIVE CIRCUMSTANCES

The offender is 24 years of age. At the time of the offence she was 22. She successfully completed her HSC and furthered her education through completion of qualifications in Child Care and Certificate III in Veterinary Nursing. She is currently undertaking the Certificate IV in Veterinary Nursing.
She has been employed on a part-time basis at a retail food outlet since May 2018.
With the exception of one prior mid-range PCA conviction, she does not have a documented history of antisocial behaviour.
She has been receiving psychological counselling since 2012 for anxiety and depression. She felt that prior to the offending that she had low self‑esteem which impacted on her decision to be the mule and carry the drugs into the festival.
I have taken into account her young age at the time of the offending.
In her affidavit it is clear the offender has insight into her offending and has expressed remorse and contrition in relation to her actions.
She goes on to say that since the offences she has made different friends and does not associate any more with the people that were with her on the bus going to the music festival.
She also notes that having these charges and court proceedings looming over her head since September 2017 has taken a large toll on her mental health.
Bellew J in Sabra v R [2015] NSWCCA 38 said that a court can take into account the uncertain suspense in which a person may be left with the charges hanging over them and I do so take that into account.

PROSPECTS OF REHABILITATION

In the sentence assessment report dated 22 March 2019, the offender shows insight and has expressed remorse and contrition for her actions. This has been confirmed in her evidence by her affidavit of today's date.
She cited the serious consequences that can result from illicit substance use at festivals and also articulated her relief that her actions did not contribute to such an event.
She has been assessed at a low risk of reoffending.
King CJ in Yardley v Betts (1979) 1 A Crim R 329 at 333 said: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is, to that extent, impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection the community is, to that extent, enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crimes, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."
I have read the report of Jeanette Pheiffer and note that the offender is undergoing treatment in relation to anxiety and depression. I have also read the exhibits that have been tendered on her behalf and included in that are a number of character references which show that the offender is of good character up until the time of the commission of this offence and that the offender has expressed remorse and contrition.
I have formed the view that she has excellent prospects of rehabilitation and will not be before the courts again. I have taken into account that she was on a good behaviour bond for a drive midrange PCA at the time of the offending and acknowledge that this an aggravating feature.

SENTENCE

Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court: R v Moon [2000] NSWCCA 534, Howie J at [81].
In Parente v R [2017] NSWCCA 284, the Full Bench of the Court of Criminal Appeal held that the Clark principle that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances is incompatible with the judicial sentencing discretion and should no longer be applied. See [101] and [108]; [110].
The Crimes (Sentencing Procedure) Act 1999 was amended on 24 September 2018. The purpose of the amendments was to improve the availability and nature of community-based sentencing options to protect community safety by reducing offending and to get a greater number of appropriate offenders on community-based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs.
Community safety, or put another way, community protection, occurs by the successful rehabilitation of offenders. In my view, the s 5 threshold has not been crossed and I note the Crown made that submission in their written submissions.
Save for the midrange PCA, she is a first-time young offender who naively agreed to take drugs into a music festival for another. She has excellent prospects of rehabilitation. She is in work and enhancing her qualifications. She has insight into her offending and has expressed contrition and remorse.
I intend to extend to her a degree of leniency with the knowledge that she will not be before a court on a criminal matter again.
The facts of this case are not dissimilar to those before the Court of Criminal Appeal in R v Mauger [2012] NSWCCA 51. That was a Crown appeal which included a ground of manifest inadequacy. The respondent pleaded guilty to supplying 5.13 grams of 20 tablets of MDMA. The amount of MDMA was four times the indictable quantity.
The respondent had attended a music festival. He was detected by a police dog and arrested. He had paid $800 for the MDMA and told police that he had not discussed the subject of whether or not he would be paid for the tablets to supply to his friends.
The sentencing judge (English DCJ) dismissed the charge without recording a conviction pursuant to s 10 of the Act.
The Court of Criminal Appeal dismissed the appeal. In the Court's view, the sentence was not manifestly inadequate.
Conditional release orders 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 CRL 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50].
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.
I have taken into account the purposes of sentencing as set out in s 3A of the Act. The need for denunciation and general deterrence are important considerations but they can be adequately contemplated by both the terms and duration of a conditional release order.
The offender will be subject to a judicially sanctioned requirement to be of good behaviour for a period of two years. There are onerous consequences that apply if she fails to observe that requirement. "It is wrong, in my view, to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate or even a particularly lenient sentence": R v Mauger at [37].
There is no strong need in this case for special deterrence. "In terms of the relative criminological and social consequences for the respondent on the one hand and society on the other hand, the recording of a conviction for the offence in this particular case is of little or no practical or theoretical consequence for the good order of the community but is by way of contrast potentially of great importance to the respondent": R v Mauger at [39].
I agree entirely with what the Court of Criminal Appeal said. The prospect of a conviction for drug trafficking for a young offender for the rest of their life is of great importance but does not affect the good order of the community in practice or theory.

ORDERS 1. The offender is to enter into a conditional release order without conviction for two years. 2. The offender must not commit any offence. 3. The offender must appear before the Court if called upon. 4. The offender is to abstain from consuming illicit drugs.

In relation to the breach of the s 10 for the drive midrange PCA, the file should be marked that no further action shall be taken in regard to the breach.

Amendments 04 July 2019 - layout error in quotation 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: 04 July 2019

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