R v Wiltshire

FACTS

12. The facts are agreed, and I have had regard to all of them. In summary, they are as follows. At the time of the offending, the offender was living in a room at the Elizabeth Motor Inn, Adamstown. In December 2023, police commenced a strike force aimed at the supply of drugs in the Hunter region. A primary target was co offender, Joshua Lonsdale, but through observations of Lonsdale, police identified this offender.

13. The sequence 24 offence relates to half a litre of gamma butyrolactone, also known as GBL, and on 24 January 2024, police intercepted a phone call between Lonsdale and a person with the surname Hyatt. Hyatt asked if Lonsdale could obtain half a litre of "G", which is common name for GBL. Shortly after, Lonsdale called the offender, and they later exchanged text messages where Lonsdale told the offender he had someone who wanted "half a litre". The offender responded, "Them ones underneath are half litre at the back of the safe". The offender told Lonsdale that he wanted $350 for the half litre and added, "That way, you can put a bit on it if you want", which was obviously an indication to Lonsdale that he might want to add an amount of money for his own profit. The offender also told Lonsdale to, "Just grab one of them at the back and just take 350 off the number, or whatever". The facts note that the relationship between the offender and Lonsdale soured in February 2024 and they did not work together after this point.

14. On 28 March 2024, police executed a search warrant at the offender's motel room. They found that the offender had set up his own CCTV surveillance, which was operated by a mobile router. Inside the room, the police found the following items on a desk which was set up as a workspace: scales, plastic bags, elastic bands, some tick lists, an item described as an "On Balance" tray frequently seen on pictures on the offender's mobile, and a small storage cabinet with a grey tray containing various prohibited substances, which are set up in a photograph which is embedded in the Statement of Facts.

15. The sequence 10 offence relates to an amount of $1,995 cash, which was found on the table near to various items of prohibited drugs. During the search, police also found two mobile phones. Both phones had the Facebook Messenger application on them where the offender was using the profile "Nu Skool Logistics". The offender used this profile to supply various prohibited drugs. Within the picture gallery of one of the phones were various photographs of drugs, both large and small amounts, shown on scales and plates, as well as "tick lists" of money owed to the offender. The statement of facts at paras 12 to 17 refer to "general evidence contained on the two mobile phones of supply", and refers to communications in March 2024 in which the offender communicated with four different customers where he participated in actual supplies of prohibited drugs after agreeing on prices.

16. During the police search, there was located also a clear resealable bag containing 5.88 grams of MDMA, which was brown in colour; this is the subject of the sequence 2 supply MDMA offence.

17. The facts relating to the sequence 4 supply methylamphetamine offence are as follows. This offence is made up of an amount of 20.31 grams of methylamphetamine that was found in containers at the motel room, as well as a number of actual supplies of methylamphetamine which the offender carried out with various customers between 14 and 27 March 2024.

18. These actual supplies involved the offender meeting with customers in various public locations around the greater Newcastle area. The facts set out seven such supplies, which involved quantities of between 3.5 grams and 14 grams, which the offender would negotiate prior to the supply. It appears from the facts that the offender was selling 3.5 grams of methylamphetamine for around $600, and 14 grams of methylamphetamine for around $1,850. The facts also indicate that these actual supplies were preceded by the offender using his Nu Skool Logistics profile to "advertise" to some of his clients his product. The total of these actual supplies, together with the 20.31 grams found in the motel room, comes to 69.31 grams, which is the subject of sequence 4.

19. The sequence 7 offence, which is to be dealt with on a Form 1, relates to the offender's possession of 35 tablets weighing a total of 175 grams which contained diazepam and were found inside the offender's motel room. The sequence 6 offence relates to a total of 144.1 grams of GHB, which is gamma hydroxybutyrate, which was found in six containers concealed inside a clock that was found by police in the motel room. The sequence 9 offence involved the deemed supply of 66.3 grams of cannabis leaf, also found by police in the motel room inside three plastic containers with a total weight of 66.3 grams. Each container was labelled with a name describing the strain or variety of the particular cannabis leaf inside.

OBJECTIVE SERIOUSNESS

20. Turning to objective seriousness of the various offences. Objectively, each of the offences clearly are potentially serious, having regard to the maximum penalties. The Courts have said for many years that offences of drug supply must be treated very seriously, given the damage that drugs cause to individuals and to the community generally. It is for this reason that general deterrence must ordinarily be given significant weight. However, in assessing the objective seriousness of the offences, I must make a determination as to what role the offender played in the offences, in other words what he did. The quantities of drug are highly relevant, but they are not determinative in that exercise.

21. Relevant to the objective seriousness of all offences is the fact that the offender was clearly carrying on a form of business which involved supplying various illegal drugs. It involved some level of organisation, given the material that was found by police, and given that the offender had a CCTV system set up. However, and as conceded by the Crown, it was not an overly sophisticated operation.

22. Secondly, the business being carried on was clearly aimed at profit. Having said this, however, I also accept that a large part of the offender's motivation in committing the offences and being in possession of the various drugs was to sustain his own drug habit, and I do not suggest that any financial rewards that he acquired were significant. Nonetheless, he clearly had a large degree of autonomy and was effectively the principal in this "business". This is apparent from the agreed facts which show that the offender sent out the text messages advertising some of his available "product", and that it was he who negotiated over prices and quantities.

23. Turning then to the objective seriousness of the individual offences. Sequence 2 relates to the deemed supply of 5.88 grams of MDMA that was found in the motel room. As I have said, it is a deemed supply rather than an actual supply, although there is no doubt that the offender had the drug in his possession with the intention of supplying it to someone. There is, as the Crown submitted, also the fact that, as noted in the Statement of Facts, the offender did engage in actual supply of MDMA on 4 March 2024. This does not add to the objective seriousness of the sequence 2 offence, but it goes to show that the deemed supply offence was not an isolated aberration. The quantity of drug at 5.88 grams was about four times the indictable quantity, but far below the commercial quantity. I accept the Crown's submission that this offence sits towards the lower range of objective seriousness.

24. The sequence 4 offence involved the supply of 69 grams of methylamphetamine, 20 grams of which relates to the quantity found in the motel room, and the remainder being the subject of actual supplies over a two week period. The quantity of drug was almost 14 times the indictable quantity, and around a quarter of the commercial quantity. Again, this was not an isolated supply because the Statement of Facts refers to conversations taken from the offender's phone, which suggest prior dealings with at least one of his customers. This does not increase the objective seriousness of the sequence 4 offence, but it shows that the offending was not a mere aberration. I accept the Crown's submission that it falls below the mid range of objective seriousness.

25. In sentencing for this sequence 4 offence, I will take into account the sequence 7 offence, which is on the Form 1 document, which is the admitted offence of possessing a quantity of diazepam. Form 1 matters do not increase the objective seriousness of an offence, however the Court is entitled to take them into account by giving greater weight to two elements that are always material in the sentencing process, firstly the need for personal deterrence, which the commission of other offences will frequently indicate ought to be given greater weight, and secondly, the community's entitlement to extract retribution for serious offences. This is not, however, an automatic process, and the weight to be given to a Form 1 matter is a matter essentially for the determination of an individual judge on the facts of the case. In this case, I think this Form 1 matter should operate to increase the sentence for the sequence 4 offence, but only to a very limited degree, given the low level of seriousness of the Form 1 offence.

26. Sequence 6 relates to the deemed supply of 144 grams of GHB that was hidden inside a clock. The quantity represents more than double the indictable quantity, but well below the commercial quantity of 1 kilogram. It is another offence that falls below the mid-range.

27. Sequence 9 relates to the 66 grams of cannabis found in the offender's motel room. This offence involves another deemed supply; the quantity represents double the small quantity, but was far less than the indictable quantity of 1 kilogram. I consider it an offence that is towards the lower range of objective seriousness.

28. Sequence 24 is an offence that relates to the supply via the offender to Lonsdale of 500 mls of GBL for the purposes of Lonsdale supplying to someone else. As the Crown submitted, the quantity supplied was ten times the indictable quantity and half the commercial quantity. It is apparent that at the time of this actual supply Lonsdale and the offender were working together, to some extent, and there was a level of trust and cooperation between them, given that Lonsdale was trusted to access the offender's safe where the GBL was located. This transaction also confirms the autonomy and role of the offender in that it was he that named the price for the GBL. It is an offence, in my view, that is slightly below the mid-range.

29. Sequence 10 relates to the $1,995 cash found in the premises, which is reasonably suspected of being proceeds of crime. It is important to note that this is a s 193C(2) offence involving "reasonable suspicion", and not a more serious offence involving actual knowledge and proof that the money was in fact proceeds of crime. The amount of money is towards the bottom of the value of suspected proceeds of crime that can fall within the section, given that it applies to amounts of up to $100,000. In my view, it is an offence that sits within the low range of objective seriousness.

SUBJECTIVE MATTERS

30. I turn then to subjective matters relating to the offender himself. He is now aged 42. His criminal history commenced from around 2004 and consists of drug related offences almost exclusively. Most recently, he was sentenced by his Honour Ellis DCJ of this Court on 20 June 2023 in relation to various drug supply offences to a term of three years six months, and a non parole period of one year nine months. The offences now before the Court were committed not long after he was released on parole.

31. The psychological report of Jason Borkowski states that the offender was born in Newcastle and raised by his parents in the Lake Macquarie area. He also has a younger sister. He described his parents and his childhood in very positive terms. He was not exposed to domestic violence, neglect or drug or alcohol abuse, and he remains very close with his parents. He described a "good family life growing up". He lived with his family until he was 18 or 19. The offender first bought his own home, which was in Newcastle, when he was only 22, and he later worked overseas for some time before returning to Australia and living in Queensland where he bought another house. He later lost both homes, however, seemingly due to his drug problems.

32. In recent years, when he has not been in custody, he has relied either on living with his parents or in temporary accommodation. The offender reported two notable relationships, and he has an 11 year old daughter from one of them with whom he maintains a reasonably close relationship. The offender performed reasonably well at school, was not subject to bullying, and obtained his HSC. After this, he completed studies to become an electrician and worked in this role in Australia for about ten years before moving to Spain, where he worked on a super yacht. He returned to Australia in his early thirties and obtained work with a mining company until he established his own business. However, by this time he had developed a serious drug problem, and his income was largely spent on drugs, with the business failing as a result.

33. He told the psychologist that he usually engages himself in work when he is in custody and hoped to return to his electrical trade upon release. He claimed to have an employment opportunity with a friend who used to be one of his apprentices. In terms of his mental health, the offender told the psychologist that this began to decline when he was in his early thirties by reason of his drug abuse, and that he started experiencing auditory hallucinations and persecutory delusions. His main drug of choice in his adult life has been “ice”. He told the psychologist that in the past he has been diagnosed with drug induced psychosis, schizoaffective disorder and schizophrenia. He has a history of admission to mental health facilities on numerous occasions.

34. The offender has attempted drug rehabilitation in the past, including an eight month stint when he was around 35 years old, and said that while he was abstinent for this period, he relapsed some time later. He said that when he was last in full time custody he was given Buvidal, and that this helped. However, it seems that he again relapsed upon release when this drug was no longer available to him.

35. In relation to his offending, he told the psychologist that he would experience command hallucinations which told him to keep selling drugs, and claimed to have had the belief that in doing so he would earn "imaginary points" which would keep him alive. He told the psychologist that he had relapsed almost immediately after he was released from his last period in gaol, and thought that in order to use drugs he had to sell them. He claimed that after starting back on drugs, he stopped taking his prescribed medication, and that his psychoses "ramped up" with more prominent hallucinations. He told the psychologist also that he developed the belief that if he did not continue to sell drugs he would be killed.

36. While the offender appeared to have negative views about his own chances of remaining drug free in the future, he claimed that he wants to avoid drugs, and cited the importance of his relationship with his daughter as the major motivator. Diagnostically, the psychologist says that the offender's presentation is consistent with severe substance use disorder, as well as symptoms of schizophrenia, which appear to have developed from long term drug abuse. The psychologist offers the opinion that the offences before the Court were a combined manifestation of the offender's substance dependence and his schizophrenia, which together compromised his capacity for rational judgment and decision making. The offender took responsibility for his actions and expressed what the psychologist considered to be genuine remorse. He also expressed a willingness to engage in treatment.

37. The offender's father gave evidence in the sentence hearing. He and his wife remain very supportive of their son, despite his history. Mr Wiltshire Senior said that the offender has a very good and close relationship with his daughter, who has been told that her father is away getting help for his mental health. Mr Wiltshire Senior said that he maintains regular contact with the offender, and that in his view, the offender knows he has mental health issues and a serious drug problem, and wants to address these issues. He says that on his observations the offender's mental state is much improved, and he is more the man that he used to be.

38. The psychologist, Mr Borkowski, says in relation to the offences before the Court that the offender's actions "were a combined manifestation of his substance dependence and his diagnosed schizophrenia, which together compromised his capacity for rational judgment and decision making, leading to the behaviours that are the subject of matters currently before the Court". In circumstances where this evidence has not been challenged by the Crown, I generally accept it, and I accept that this reduces the offender's moral culpability to some degree. I place little weight, however, on the offender's claim, not supported by evidence on oath, that he was experiencing command hallucinations telling him to keep selling drugs or he would be killed. The more likely explanation for the offender's immediate relapse after being released on parole is contained in his statement to the psychologist that "as soon as I took drugs, I knew I had to sell them to be able to use them".

39. However, I have found that the offender's moral culpability is reduced to some degree, and I accept that this reduces the significance of general deterrence to some degree. But, as was said in DPP (Cth) v De La Rosa [2010] NSWCCA 194, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. In my view, the offender continues to represent a material risk of similar offending in the future, and I consider that personal deterrence and protection of the community are of significant importance in this sentencing exercise. I have taken into account that the offender's mental health issues have and will continue to make his time in custody more difficult. I again cite the De La Rosa decision.

REMORSE, RISK AND REHABILITATION

40. The offender has expressed remorse to his parents and to the psychologist, although, given his long history of drug offending, it seems to me that this is less likely to be remorse for again involving himself in drugs, and more likely feelings of regret for what his actions have brought upon himself and his family. In terms of prospects and future risk, it is positive that there is no evidence of drug use during this current period in custody. There is also the fact that there is a large gap in the offender's criminal history between 2004 and 2020, but clearly, the offender's criminal history, and especially his involvement in drug offences in recent years, does not present a positive picture in terms of his future prospects. As Ellis DCJ noted when he sentenced the offender two years ago, the offender's prospects are closely linked to his capacity to remain abstinent from illicit drugs.

41. While the offender's long-suffering father says that the medication that the offender is now on has demonstrated a significant improvement in the offender, the real test will be once he is released into the community. Regrettably, the offender failed that test last time, and the time before that when he was placed on an ICO by the Local Court in 2020. I accept, however, that the offender is genuine in his wishes to remain drug and offence free. I accept that he is motivated, especially by reason of the love of his daughter, and I accept also that it is positive that he has the generous support of his parents. However, these same positive factors existed two years ago when he was before Ellis DCJ. The real test for the offender will be, as I have said, once he has the freedom of movement that will allow him to go back to his old ways. His history is such that his prospects of rehabilitation are at best guarded, and he will remain a material risk of reoffending in a similar way.

DETERMINATION

42. Turning to my ultimate determination. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999; I will not recite them. I note that they are all relevant, subject to what I have said about the importance of general deterrence being reduced to some degree.

43. I am satisfied that each of the offences are such that only a term of imprisonment is appropriate.

44. I have made some adjustment by reason of a finding of special circumstances in relation to the ratio between head sentence and non parole period. It will, however, not be as generous as the 50% ratio that his Honour, Ellis DCJ, applied two years go. I make the finding of special circumstances based on the fact that the offender has shown some positive signs of remaining off drugs in custody, and the importance of there being a reasonable period of time subject to supervision on parole.

45. I intend to impose an aggregate sentence. I have had regard to principles of totality, given that there are a number of offences for sentence. In my view, there needs to be a degree of notional accumulation, given the multiple offences and the different illegal substances to which those offences relate. I balance this, however, against the fact that all of the offences were committed in the context of a single ongoing enterprise. I balance that also against the importance of not imposing a sentence which might be seen to crush any prospects of rehabilitation.

BACKDATING

46. I have given consideration to the question of backdating. The offender was arrested on 28 March 2024 and has been in custody since then.

47. However, these offences are not the sole reason for that custody because his parole was revoked by the State Parole Authority as from the date of his arrest, and his balance of parole does not expire until 27 August 2025. It appears that the main, but not sole, reason for revocation of his parole was that he had been charged with the offences now before this Court. In these circumstances, I have a discretion to exercise as to the extent, if any, that the sentence I impose should be backdated. Although the offender suggests that a full backdate to 28 March 2024 would be appropriate, it seems to me that this would be to ignore the fact that after his release to parole the offender's liberty was conditional on his being of good behaviour, which he clearly was not.

48. On the other hand, given that his parole was revoked largely because of these fresh offences, there would be a form of double punishment if I was not to order at least some backdating. The appropriate compromise is to backdate the sentence by about half of the period between today and the offender's arrest. On my calculations, the offender has, so far, spent about 469 days in custody. I intend, therefore, to backdate the sentence by 235 days so as to commence on 17 November 2024.

49. Because I am imposing an aggregate sentence, I must set out the indicative sentences that I would otherwise have imposed. These do not represent the ultimate sentence; I will make the ultimate sentence clear in a few moments.

50. The indicative sentences after the application of the 25% discount are as follows:

51. For sequence 2, 12 months' imprisonment;

52. For sequence 4, including and taking into account the Form 1 matter, two years' imprisonment;

53. For sequence 6, 15 months' imprisonment;

54. For sequence 9, nine months' imprisonment;

55. For sequence 24, 16 months' imprisonment; and

56. For sequence 10, seven months' imprisonment.

57. I impose an aggregate sentence of four years' imprisonment.

58. I impose a non parole period of two years six months. Those will date from 17 November 2024. The head sentence will expire on 16 November 2028; the non parole period on 16 May 2027.

59. Ms Crown, Mr McDuff, anything that needs to be raised?

60. MCDUFF: I might have just missed it, but what was the indicative for sequence 10, your Honour?

61. HIS HONOUR: Seven months.

62. MCDUFF: Thank you. Nothing to raise.

63. THOMSON: Nothing to raise, your Honour.

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