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Parties: The Queen (Crown) David Williams (Offender) Representation: Counsel M Dyason (Crown) M Kukulies-Smith (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender)

File Number(s): SCC 213 of 2021 SCC 214 of 2021

MCWILLIAM AJ:

1. On 10 September 2021, the offender, Mr David Williams, pleaded guilty to the following charges:

(a) CAN 2020/14192 (Charge 1): trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code), which carries a maximum penalty of 10 years’ imprisonment, a fine of $160,000, or both; and

(b) CAN 2020/14193 (Charge 2): dealing with proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT) (Crimes Act). This offence carries a maximum penalty of two years’ imprisonment, a fine of $32,000, or both.

The Facts

2. The following factual findings are drawn from a statement of agreed facts that was before the Court. They are set out in some detail to assist in understanding the circumstances of the offences, if the need arises to consider the above offences in the future.

3. On 7 December 2020, police obtained search warrants on suspicion of offences relating to the distribution of methylamphetamine and dealing in proceeds of crime, for the following:

(a) Mr David Mark Williams, born 23 October 1983 (the offender);

(b) A white Ford Raptor bearing ACT registration YOX92Y registered to the offender (the white Ford Raptor); (c) Unit 5 of 3 Pennington Crescent, Calwell ACT;

(d) 95 Lewis Luxton Avenue, Gordon ACT;

(e) 80 Outtrim Avenue, Calwell ACT;

(f) Unit 5 of 31 Goldstein Crescent, Chisholm ACT; and

(g) Unit 19 of 35 Tralee Street, Hume ACT.

4. At about 10:32am on 8 December 2020, police located the white Ford Raptor travelling on Outtrim Avenue, Calwell ACT, where it pulled into the driveway of 80 Outtrim Avenue. Police approached the driver, who was identified as the offender.

5. At about 10:58am, police conducted a Record of Interview (ROI) with the offender in relation to the search warrant for his person and the white Ford Raptor. During the ROI, the offender stated the vehicle was his, and the keys to his other vehicles were in his bag, which was sitting in the front seat of the vehicle. Police commenced a search of the vehicle and located the bag, as well as the following:

(a) $134,275 cash;

(b) 800.5 grams of white crystalline substance, for which a presumptive test returned a positive result for methylamphetamine;

(c) Numerous documents and identification items in the offender’s name.

6. The ROI with the offender resumed and the offender stated he had previously used amphetamines, and that they looked like the white crystalline substance. He declined to answer any further questions in relation to the items.

7. Police executed a further warrant on 80 Outtrim Avenue, and located a Seadoo jetski bearing registration number AJD620N (the jetski) and a trailer bearing ACT registration number T9438F, registered to the offender.

8. Police subsequently seized the cash, jetski and white Ford Raptor as they believed they were proceeds of crime, along with the bag containing the 800.5 grams of methylamphetamine.

9. At about 3:09pm, the offender was placed under arrest for possession of a trafficable quantity of controlled drugs and dealing in proceeds of crime.

10. At about 3:22pm, police executed the search warrant at 95 Lewis Luxton Avenue, Gordon ACT. During the execution of the warrant, police located and seized the following items:

(a) Financial documents in relation to the offender’s employment records indicating he earned $65,000 for the 2018-2019 financial year; and

(b) One digital external hard drive located in a safe.

11. Police also executed the search warrant on unit 19 of 35 Tralee Street, Hume ACT, during which the following was located:

(a) A semi-automatic rifle (the prohibited weapon);

(b) Three motorcycles; (c) One heavily modified Holden Special Vehicle (HSV) GTS Commodore; and

(d) Other property exceeding $500,000 in value belonging to the offender, all believed to be the proceeds of crime.

12. The offender was conveyed to ACT watch house where he participated in a forensic procedure in accordance with the Crimes (Forensic Procedures) Act 2000 (ACT). Police located a further $1800 cash in his wallet. This was subsequently seized as suspected proceeds of crime.

13. At 5:51pm, the offender declined a further offer to participate in an ROI in relation to the matter.

Objective seriousness

14. The approach when assessing the objective seriousness of the offence is well-established. It involves application of the following:

(a) The task is objective and is undertaken without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

(b) The maximum penalties for each offence provide a yardstick against which to assess objective seriousness: Markarian v R [2005] HCA 25; 228 CLR 357 at [31].

(c) The sentencing court assesses where the facts of the particular offence and offender lie on the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

(d) The after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].

Charge 1: the trafficking offence

15. With regard to the trafficking offence, the maximum penalty of 10 years’ imprisonment indicates the relatively high seriousness of the offence: R v Hoang [2015] ACTSC 138 at [34] (R v Hoang), applying Muldrock. Relevant factors were discussed by the Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41] and R v Zdravkovic [2015] ACTSC 393 at [24], endorsed on appeal in Zdravkovic v The Queen [2016] ACTCA 53 (Zdravkovic) at [39]-[42]. Without repeating the authorities from which the factors are drawn, they include the following:

(a) The role of the accused is an important consideration; those whose level in the operation is at a higher level of the hierarchy being more culpable. (b) While the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects. (c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter.

16. In relation to the first of those factors, in Zdravkovic at [40] the Court of Appeal stated that it may be more accurate to say that an offender’s role is to be determined by examining what is known about the offender’s conduct.

17. Considering each of those matters in the context of the present offending, the facts above indicate that the offender’s role was more significant than that of a street level dealer. There was no evidence to indicate anyone else was involved in the offending and the quantity of cash in his possession, along with the quantity of drugs found, support such a finding. As in R v Negah [2019] ACTSC 243 at [20] (R v Negah), the significant value of the drugs in the offender’s possession supports a finding that he was a member of the trafficking operation in whom trust was placed and operated above what has been described as ‘street level’. Without placing the offender in any specific level on a hierarchy, I find that his level of culpability was significant.

18. The amount of drug possessed, is not of chief importance (see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [67]-[70]), but is nonetheless relevant to the objective seriousness: R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at [34]. The offender possessed 790.134 grams of methylamphetamine, out of 800.5 grams of white crystalline substance. This is in the mid-point of the range between the deemed trafficable quantity and the commercial trafficable quantity (see Schedule 1 of the Criminal Code Regulation 2005 (ACT)). It equates to approximately 7901 street level deals with a median street value of $493,812.50, and if sold in bulk would have returned approximately $79,000. While it is not appropriate to adopt an arithmetic approach to sentencing based upon a spectrum between the trafficable quantity and commercial quantity, it can inform the use of maximum penalties for the offences in respect of such quantities in determining the appropriate range of sentence: R v French [2020] ACTSC 133 at [18] (R v French). The high value of the product is relevant to the harm from the effects of distribution, which in this case would likely have been far-reaching, including as submitted by the Crown the latent harm to the community in trafficking such a quantity of methylamphetamine.

19. Given the amounts involved, the inescapable inference is that the offence had profit motives. The trafficking offence was said to be motivated predominantly by the offender’s need to supplement his legitimate income to fund his drug dependency. I do not doubt that contributed to the offending, but the quantities are far more than what would solely be conduct to sustain a drug habit, although I also note the Crown’s submission that the objective seriousness of trafficking offences is not mitigated to any significant degree merely because the offence was self-induced by abuse of drugs: R v Dang [2005] NSWCCA 430 per Howie J at [32].

Charge 2: dealing with the proceeds of crime

20. In R v Cole [2019] ACTSC 228 (Cole), Murrell CJ considered factors relevant to the commission of a money laundering offence pursuant to s 114B of the Crimes Act, which includes an additional mental element (and heavier penalty) not present in an offence under s 114C. However, some of the factors relevant to assessing the objective seriousness of conduct for offences under ss 114B and 114C clearly overlap.

21. I consider the following matters to be relevant here: (a) The purpose and nature of the dealing (for example, short-term possession as opposed to extensive use or expenditure of property or monies over a long period).

(b) The nature of the proceeds of crime (for example, whether the property was derived or realised directly or indirectly from the commission of an offence and the seriousness of that offence).

(c) The value of the proceeds of crime (noting the ACT differs from other jurisdictions by not referencing penalties to value).

(d) The context and circumstances of the dealing (for example, whether it resulted from a transitory event as opposed to a more permanent practice).

22. In the present matter:

(a) The offender dealt with the proceeds of crime by possessing the cash, jetski, vehicles and other property exceeding $500,000 in value;

(b) The money was derived from the commission of a serious offence, namely, drug trafficking; and

(c) There was a total of $136,075 in cash, in addition to several vehicles, a jetski, and other property valued at $500,000, which is a significant amount.

(d) The extent of the proceeds and the purpose, even if one only considers the purpose of trafficking to fund the offender’s long-standing drug habit, indicates that the conduct was not isolated, but was ongoing.

Subjective circumstances

23. A Pre-Sentence Report (PSR), the contents of which I accept, was provided to the Court on 9 December 2021. It has been incorporated into much of what follows.

24. The offender, now 38 years old, was born in Queanbeyan, NSW. He reported an unremarkable joint upbringing by separated parents, which was free of abuse or trauma aside from the suicide of his mother’s partner when the offender was 10 years old.

25. Several protective factors are available to support the offender’s rehabilitation, including but not limited to full-time employment, secure accommodation and stable mental health. He has a stable family network in the ACT, indicating a positive, close relationship with both his parents and sister, as well as a long-term partner with whom he lives and has a three-year-old son. Materials tendered during proceedings further indicate he has a teenage stepdaughter. The son remains in the custody of the offender and his partner, despite ongoing interactions with Child and Youth Protection Services (CYPS). Based on character references tendered during proceedings, the offender appears to be well-respected both personally and professionally, and has significant pro-social influences who are willing to support him in his recovery.

26. After being released from the Andrew Machonochie Centre (AMC) in December 2020, the offender resided temporarily with his mother for approximately seven months, before moving to an ACT Government property leased in the name of his partner, where he currently lives along with her, their child and stepdaughter. CYPS staff had concerns in relation to this living situation based on previous involvement and history with their service, although the offender’s partner has advised she does not currently consider sharing a home with him to place her or her child at any risk, and affirmed her consent for the offender to remain at this residence with them.

27. In terms of schooling, the offender has reported completing Year 10, as well as an extensive employment history of over 10 years scaffolding in the construction industry, which he advised is his sole source of income. He reported an outstanding loan of $23,000 for a vehicle, but advised he is managing repayments appropriately. He also alerted the Drug and Alcohol Sentencing List (DASL) team to outstanding court fines, but the amounts are immaterial in terms of influencing the sentencing task before the court.

28. He has an extensive criminal history dating back to 2006 in both New South Wales (NSW) and the ACT, comprised mainly of driving and drug possession offences. He has demonstrated a pattern of non-compliance with court orders and conditions, having breached his Bail Order in May 2021 when he was charged with failing to stop a motor vehicle for police and driving with a prescribed drug in oral fluid in breach of a bail condition. Most recently, he has appeared before Elkaim J for an admitted breach bail on 24 March 2022, although this was in relation to a supervision condition rather than use of illegal drugs. The offender has not previously served a full-time custodial sentence. He has engaged positively and proactively with the reporting service in the interview and assessment process for the PSR.

29. The offender reports no current physical or mental health concerns, and indicates he had never experienced any significant mental health issues.

30. A significant factor in the offender’s offending is his substance abuse, and he reported an historical drinking problem on top of ongoing illicit substance use, commencing with regular cannabis use from age 16, and regular methylamphetamine use approximately six years ago. This has culminated in usage of up to an “8 ball” per day. Based on the DASL Suitability Assessment Report (the report) dated 14 February 2022, his illicit drug use appears to have been precipitated and perpetuated by ease of access in the course of his offending, although he has had periods of going “cold turkey”, meaning total abstention from drugs.

31. The offender’s demonstration of remorse (s 33(1)(w) of the Sentencing Act) has been taken into account. The offender attributes the offences to “getting mixed up in the wrong crowd” and his own poor choice of trafficking drugs to support his own illicit substance addiction. He has expressed regret and understands the criminality of his behaviour. However, he reportedly has failed to display insight into how his substance abuse has influenced his criminal behaviour throughout his life. In a personal letter to the Court, he expressed extreme remorse both for the offence and his use of methylamphetamine, and noted having “cut many people out of my life that in the end were just bad [influences] that only cared about leading me in the wrong direction for [their] own personal gains.”

32. Given his protective factors and the role of substance abuse in his offending, the offender has been assessed as suitable for a medium level of intervention by ACT Corrective Services by way of Good Behaviour Order, as well as a Community Service Work Condition pursuant to s 90 of the Crimes (Sentencing) Act 2005 (ACT). Plea of guilty and time in custody

33. The offender pleaded guilty (s 33(1)(j) of the Sentencing Act) to the two primary offences on 10 September 2021 in the ACT Magistrates Court, which was the eighth mention before that court.

34. The applicable discount for a guilty plea is a question of discretion (see Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]), with utilitarian value as the primary consideration: Monfries v R [2014] ACTCA 46; R v Toumo’ua [2017] ACTCA 9; 265 A Crim R 499. The guilty plea at a relatively early stage has saved court time and costs, and further indicates a willingness to facilitate the administration of justice.

35. In my view, the appropriate discount under s 35 of the Sentencing Act for each plea of guilty is 25%.

36. The offender has spent a total of nine days in custody, eight of which were in relation to these offences, which would be reflected in any custodial sentence imposed. In light of the conclusion that I have reached below, it is perhaps helpful to record that although it is a factor recognised in the imposition of the sentence, this cannot be recognised as part of a Drug and Alcohol Treatment Order (DATO) under s 12A, which refers to the need to “fully suspend” any sentence of imprisonment: see R v McCallum [2020] ACTSC 15 at [81]; R v Parker [2020] ACTSC 38 at [25] – [33]; and R v Crawford (No 1) [2020] ACTSC 245 at [109] – [111].

Current Sentencing Practice

37. Current sentencing practice is a relevant consideration for sentencing under Sentencing Act s 33(1)(za), though comparative sentences operate primarily as a “yardstick against which to examine a proposed sentence” rather than confining the court to any strict numerical boundaries: Hili v The Queen; Jones v The Queen [2010] HCA 45 at [53]-[54]. Both parties have provided the Court with comparable cases which have been taken into account in this way.

38. In respect of the trafficking offence, the ACT Sentencing Database lists imprisonment as the most frequently-imposed penalty, with the majority of sentences falling between six and 30 months. The court was directed to R v Negah, where Loukas- Karlsson J helpfully canvassed a number of custodial sentences for comparable trafficking offences at [47]-[52], albeit most of the authorities referred to pre-dated the introduction of the Drug and Alcohol Sentencing List in this Court. In light of her Honour’s detailed summary, it is unnecessary to repeat the authorities here. I would add to those cited R v Negah itself and R v Hoang [2020] ACTSC 262 (Hoang), R v French; and R v French [2021] ACTSC 205.

39. In R v Negah, the offender was 27, with a history of substance abuse, gambling addiction and ongoing mental health concerns, showing limited insight into the harmful effect of his drug use. He pleaded guilty to trafficking 983.8 grams of methylamphetamine, and received a sentence of four years’ imprisonment. Absent much evidence of the offender’s role beyond the significant value and quantity of the drugs, he was found at [16]-[20] to be “a courier in whom trust was placed” within the trafficking enterprise.

40. In Hoang [2020] ACTSC 262, a 47-year-old offender with a prior sentence for a similar offence pleaded guilty to trafficking in 29.551 grams of “high purity” heroin, and received a sentence of 21 months’ imprisonment. The offence was considered to be an isolated incident, and he was found at [33] to be “a connected middleman” operating at a slightly higher level than a street level dealer.

41. In R v French [2021] ACTSC 205, a 52-year-old offender with a history of substance abuse pleaded guilty to trafficking 184 grams of methylamphetamine, and received a sentence of two years’ imprisonment. The offender was characterised at [15] as a “mid-level dealer”, with the trafficking enterprise directed principally to supporting his drug habit.

42. In R v French, a 39-year-old offender with previous convictions of the same nature pleaded guilty to trafficking 1.2 kilograms of heroin and 1.9 kilograms of methylamphetamine, and received a sentence of two years and five months’ imprisonment in respect of both offences. The offender was considered at [20] to be at the upper end of the hierarchy of a profit-driven trafficking enterprise, with “an element of sophistication” in his involvement in storing and guarding the drugs.

Synthesising the above considerations

43. The Crown submitted that, pursuant to s 10(2) of the Sentencing Act, a sentence of full-time imprisonment is the only appropriate penalty for the drug trafficking offence, given the overwhelmingly negative impact of drug dealing on the Australian community: Lawrence v The Queen [2007] ACTCA 10 at [6], cited in R v Hoang. Given the primacy of general deterrence considerations in drug-related crimes, I accept that only a full-time custodial sentence is warranted in the circumstances of this offender’s case.

Structure and nature of the Sentence

44. Given the interrelatedness of the trafficking and proceeds of crime offences, I accept the submissions on behalf of the offender that a substantial measure of concurrency is appropriate for the sentences, to avoid double punishment for the commission of offences with common elements: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]. Drugs cannot be trafficked without money, and any money associated with drugs (and goods purchased therewith) is by nature proceeds of crime.

45. On 15 December 2021, I adjourned the proceedings to allow the offender to undergo an eligibility assessment for a DATO, and subsequently adjourned proceedings on 31 January 2022 for a suitability assessment. The offender was assessed as eligible and suitable for a DATO pursuant to the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) s 12A.

46. Counsel for the offender submits that a disposition by way of a DATO is the appropriate outcome, given the role of the offender’s drug use in the offending, and the prosocial supports available to him. I have accepted that in the circumstances of this offender, that is the appropriate outcome. The offender is clearly struggling to avoid relapse and the criminal behaviour that follows it.

47. The sentence I will impose for the offender is within the appropriate range: Sentencing Act s 12A(1)(b). I am also satisfied that, given his stable living situation and strong connections to his work, partner, son and stepdaughter, the offender will continue to reside in Canberra for at least the next 24 months: Sentencing Act s 12A(2)(a)(iii).

48. I am further satisfied that the offender is dependent on illicit drugs, namely methylamphetamine, and that this dependence substantially contributed to his commission of the trafficking offence, and by extension the dealing with proceeds of crime offence: Sentencing Act ss 12A(2)(a)(i) and (ii).

49. The DASL Suitability Assessment Report recommends the offender as being suitable for a DATO, citing his good compliance throughout the assessment period, and a “clear motivation to attend to all obligations” under such an order.

50. The information meticulously collected and provided to the court by the DASL team, counsel and the offender himself illustrates an obvious vicious cycle of trafficking and dependence, which he not only recognises, but is currently motivated to break. Noting a previous, lapsed attempt to overcome his substance abuse issues unassisted, the fact that he has never engaged in any formal drug and alcohol treatment provides a strong impetus to prioritise intervention over institutionalisation, and afford the offender an opportunity to eschew past criminality.

51. I have not identified any indicia of unsuitability for a DATO as set out in Table 46K of the Sentencing Act.

52. Without taking formal steps to address the addiction, the offender is likely to be engaging with the prison system for the rest of his life. The successful rehabilitation of this offender is fundamental to reducing his risk of re-offending and that is how I consider ultimately the community would be best protected. Noting the offender is suitable for a DATO, I consider it appropriate to make one.

Conclusion and Orders

53. Accordingly, I make the following orders:

54. Mr David Williams is convicted of trafficking in a controlled drug other than cannabis (CAN 2020/14192) and is sentenced to three years’ imprisonment (reduced from four years to reflect his guilty plea) to commence on 31 March 2022 and end on 30 March 2025.

55. Mr David Williams is convicted of dealing with proceeds of crime (CAN 2020/14193) and is sentenced to four and a half months’ imprisonment, recorded as four months and 16 days (reduced from 6 months to reflect his guilty plea), to commence on 15 December 2024 and end on 30 April 2025.

56. That is an overall sentence of 37 months’ imprisonment, commencing on 31 March 2022 and expiring on 30 April 2025.

Drug and Alcohol Treatment Order

54. I make the following further orders:

55. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Mr David Williams for two years, beginning on 8 April 2022 and ending on 7 April 2024, in respect of the offence of trafficking in a controlled drug, for which he has been convicted and for which he has been sentenced to a total period of three years’ imprisonment. 2. The order is extended to the offence of dealing with the proceeds of crime, which is an associated offence of the primary offence.

56. The convictions and sentences for the primary offence and associated offence are incorporated into the order in the custodial part of the order.

57. The custodial part of the Order be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 8 April 2022, until 30 April 2025.

58. Pursuant to s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mr Williams is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, namely 8 April 2024 until the end of the total sentence, namely 30 April 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment.

59. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT), and the additional conditions in s 80Z(2)(f)-(g) are hereby imposed;

b) Mr Williams is directed to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he/she resides, with whom he/she associates and his/her attendance from time to time; and

c) Mr Williams is directed to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

7. Mr Williams is directed to appear in Court or by electronic means as directed on Thursday 14 April 2022 at 11:30am.

8. Mr Williams is directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.

9. I direct that written notice of the order, together with a copy of the order, is to be given to the offender. I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam.

Associate:

Date: 8 April 2022