District Court New South Wales Medium Neutral Citation: The Queen v Woodley [2020] NSWDC 664 Hearing dates: 15 September 2020; 27 August 2020; 14 August 2020; 5 August 2020; 3 August 2020 Date of orders: 15 September 2020 Decision date: 15 September 2020 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Full time custodial sentence. Decision at [82] – [87] Catchwords: CRIME – sentencing – supplying a prohibited drug on an ongoing basis Legislation Cited: Crimes(Sentencing Procedure) Act 1999 NSW ss 3A, 5 Drug Misuse and Trafficking Act 1985 NSW s 25A Cases Cited: Bugmy v The Queen [2013] HCA 27 Dang v R [2013] NSWCCA 246 Regina v Parente [2017] NSWCCA 284 Robertson v The Queen [2017] NSWCCA 205 Texts Cited: None Category: Sentence Parties: Regina (ODPP) Russell John Woodley (Offender) Representation: Counsel: J O'Sullivan (Offender) Solicitors: S Allan (ODPP) B Quinn (Offender) File Number(s): 2019/277570 Publication restriction: None Judgment 1. Russell John Woodley, hereafter referred to as 'the Offender' appears before the Court today for sentence, having pleaded guilty to the charges set out on the Crown Sentence Summary, marked Exhibit A. Those charges were 3 charges of supplying a prohibited drug on an ongoing basis, being sequences 37, 38 and 39 of the relevant charge number. Attaching to sequence 37, by way of Form 1 documents, are additional sequences 6 and 13, 16 and 23. Attaching to sequence 39, by way of a Form 1 document, are sequences 32, 33, 41 and 42. 2. In relation to the matter charged, the offence carries a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units. The relevant provision of the Drug Misuse and Trafficking Act 1985 is s 25A. I observe here that the maximum penalty previously indicated provides a guidepost as to the seriousness with which the parliament and the community consider offences of this nature. It is a more serious form of drug supply than the other charge as it represents supply on an ongoing basis. 3. The offending took place between 31 May 2019 and 5 September 2019. I should note that the Offender was born on 15 November 1973, making him 46 years of age. Prior to being incarcerated, he was the primary carer for his father, and I will return to that shortly. 4. The Offender was arrested on 5 September 2019 and charged on the same day. He was committed for sentence from Wyong Local Court on 21 April 2020. He pleaded guilty at an early stage, which will be reflected in the discount on sentence. 5. The calculation of time spent in custody referable to these charges is complicated by reason of another matter. That is, on 8 October 2019 after being arrested in respect of these matters, an ICO, which he was serving for supplying prohibited drug, and two counts of possessing prohibited drug, was revoked. He was then ordered to serve a fixed term of 6 months 1 week, 6 days, which expired 17 March 2020. 6. From 17 March 2020 to today the Offender has been in custody in relation to these matters alone. The fact that the Offender was on conditional liberty in relation to those aforementioned matters at the time of the offending is also a statutory aggravating factor. 7. The matters on the Form 1 are to be taken into account in relation to the charges to which they attach. By signing the certificates to the Form 1 documents I confirm that I have taken those charges into account. In sentencing for the principal charges, the charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence and the second is the community's entitlement to extract retribution for serious offences. The agreed facts form part of exhibit A. 8. In March 2019 police conducted Strike Force Lamprey, which targeted the supply of prohibited drugs including methylamphetamine, cocaine and cannabis, by several identified persons on the Central Coast. Known members of motorcycle gangs were directly involved in the ongoing supply of methylamphetamine, and other drugs, to various other dealers, who would then on-supply these drugs to their own customer base. 9. The Offender was identified as a major street supplier of methylamphetamine in The Entrance area. The Offender was also identified as supplying cannabis. He is the brother of a Bandidos secretary. Throughout the period of the offending conduct the Offender sourced amounts of methylamphetamine from the persons referred to in the agreed facts. In total, the Offender sourced 25.5 grams of methylamphetamine from a 'Mr Greer' on 12 separate occasions. 10. 151.27 grams was also sourced from a 'Mr Wutherspoon' on 32 separate occasions, and 59.5 grams from a 'Mr Allsop' on 8 separate occasions. The total amount which was sourced by the Offender during the relevant period was 236 grams. 11. The Offender on-sold the methylamphetamine in order to make a profit, and telephone intercept material indicates the Offender supplied the drug on no less than 453 occasions during this period. The estimated street value of the 236 grams was just under $120,000. During the period of the offending conduct, the Offender resided between his home on Manning Street at The Entrance, and at the home of his de facto, Lisa, in a caravan at Two Shores Caravan Park at North Entrance. The Offender regularly attended to meet his customers at various locations throughout The Entrance and at different licensed premises. He frequently supplied at the U-turn bay outside the caravan park at North Entrance. 12. The following facts relate to sequence 37, being ongoing supply, during the period 31 May 2019 through to 29 June 2019. Over the course of the, investigation police lawfully intercepted telephone conversations and text messages between the Offender and his extensive customer base. During the period just referred to, the Offender supplied various sized amounts of methylamphetamine on 195 occasions. 13. Based on the telephone intercept material, the Offender supplied not less than 133.37 grams during this period. Further conversations show that the Offender received payment for a number of those transactions. It is stated in the Agreed Facts that the Offender acknowledged that he supplied methylamphetamine during this period for a financial or material reward. I pause here to note that his sale of methylamphetamine was also to support his own drug habit, disclosed by him in the course of his sworn evidence. 14. In para 10 of the Agreed Facts some of the supplies which the Offender made during that period are particularised. I do not intend to read onto the record the matters set out therein. 15. The following facts relate to the Form 1 matters to be taken into account in relation to sequence 37. They are sequences 6, 13, 16 and 23. Between 7 June 2019 and 19 June 2019 the Offender supplied cannabis on the following occasions: 1. 7 June 2019, on two occasions; 2. 9 June 2019; and 3. 19 June 2019, to the persons referred to in para 11 of the Agreed Facts and for the amount of money exchanged in response for the cannabis referred to. 1. The following facts relate to sequence, 38 being Count 2 on the Crown's sentence summary. From 30 June 2019 to 29 July 2019 the Offender supplied various sized amounts of methylamphetamine on 215 occasions. Based on telephone intercept material, he supplied not less than 131.42 grams. He received payment for a number of those transactions and he acknowledges that he supplied the drug during this period for financial reward. Two examples of the supplies are contained in para 13 of the Agreed Facts. 2. The following facts relating to sequences 32 and 33, are matters to be taken into account when sentencing the Offender in relation to sequence 39. 3. On 30 July 2019, at about 12.30pm, police observed the Offender driving along Wilfred Barrett Drive, North Entrance. The vehicle was stopped. He was searched, nothing was located. In the passenger side foot well however there was a small amount of cannabis in foil. In the roofing part of the vehicle there was also 2.75 grams of methylamphetamine. He was arrested and cautioned. He participated in an ERISP, in which he made no admissions. Neither his DNA nor fingerprints were located on the items just referred to. He was released. After that incident there were a number of conversations between the Offender and others which were intercepted. 4. At 1.10pm the Offender rang David Greer and told him that he had thrown an '8-ball' (3.5 grams of methylamphetamine) into the bush prior to being searched by police. The Offender also told Jason Lake that he retrieved the ball and supplied 0.5 grams of that to Lake on 31 July 2019. On that date, at 11.49am, the Offender organised to obtain an '8-ball' and $50 worth of cannabis from Greer and meet for the transaction. 5. While on route, police conducted a vehicle stop of Greer as he drove along the Central Coast Highway, The Entrance North. Police located 3.5 grams of methylamphetamine, and Greer was arrested and charged. 6. In further telephone conversations the Offender and others discussed Greer's whereabouts. The Offender spoke with his brother, Laurence, who asked, "What's he got on him?" The Offender replied, "A 'B', he hasn't turned up, I haven't heard from him". Shortly thereafter the Offender learned that Greer had been arrested. The Offender told his client, Katherine Harris, "He was bringing me a fucking ball and got pulled over, cops everywhere, they'd been running red-hot, they got me yesterday." 7. The following facts relate to sequence 39. Following the police stopping the Offender's vehicle on 30 July 2019, the Offender continued to supply methylamphetamine. From 30 July 2019 to 6 August 2019 the Offender supplied various sized amounts of the drug on 42 occasions. Based on the telephone intercept material, he supplied not less than 21.8 grams of methylamphetamine during that period. He received payment for a number of those transactions. He has admitted that the transactions were, at least in part, for financial gain. 8. After the police stopped his vehicle on 30 July 2019 the Offender continued to supply methylamphetamine. Telephone conversations indicate that he supplied drugs on a number of occasions, at least six occasions, to persons in street level deals that day. 9. Following the release of Greer from custody on 30 July 2019 the Offender purchased methylamphetamine twice: 1.75 grams at 3.30pm, and 3.5 grams at 7.55pm. 10. The following facts relate to sequences 40 and 41 both on the Form 1. 11. On Thursday, 5 September 2019, investigators executed a search warrant at the Manning Street address. He was not home. The police forced entry. The Offender and his father arrived home a short time later. The Offender was placed under arrest. He showed police 4.14 grams of methylamphetamine and approximately 3 grams of cannabis. The Offender claimed possession of both items stating that they were for personal use. He said the cannabis cost him $50 and the methylamphetamine $600. The Offender was taken to Wyong Police Station and entered custody. He declined to be interviewed at that time. 12. Also forming part of Exhibit A is the Offender's criminal history. I do not intend to read it onto the record, but there are a number of charges in relation to supply and possess prohibited drugs. His prior criminal record cannot be taken into account when determining the objective seriousness of the offending. A prior record does not have the effect of aggravating the offence, but it may either deprive the Offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and protection to the community. 13. In my view, in this case the Offender's criminal record disentitles him to a finding of good character and any leniency which may flow from that finding. 14. In terms of aggravating factors, I find that the offending was aggravating by the fact that the Offender was on conditional liberty at the time, being the intensive corrections order previously referred to. 15. In terms of mitigating factors, I will return to the question of remorse in a moment. 16. In relation to prospects of rehabilitation, and the risk of reoffending, the evidence does not permit a positive favourable finding and my findings in that regard are therefore guarded. 17. The Offender gave evidence in the course of the sentencing hearing. He told the Court that, prior to being arrested, he was the carer for his father, and had been for about 16 years. Upon release he intends to live with his father at his father's new address in Toukley. He gave some indication of his background when it came to drug use, which is largely consistent with what was recorded by Dr Bench in his report, Exhibit 1. 18. I note that the Offender commenced the use of cannabis at the age of 12, alcohol at the age of 13, amphetamines at the age of 15, LSD at the age of 15, cocaine at the age of 16, and heroin at the age of 24. At the time of the subject offending, he was using between 2 to 3 grams of ice per day, as well as cannabis. 19. In answer to a question from counsel for the Offender, he stated that he was funding his addiction by selling the drugs to support his habit. He said that the use of drugs was the first thing he did when he woke in the morning and the last thing he did before he went to sleep at night. Frankly, with the amount of drugs he was taking, it is surprising he was able to sleep at all. He told the Court, in answer to a question from Mr O'Sullivan of counsel, that he continued to the supply of drugs to support his habit. 20. In terms of his childhood in his evidence he referred to being touched by an aunty and he said that he was pushed back and forth between his parents, and again further information is provided as to his childhood in the report by Dr Bench, Exhibit 1. Nevertheless, in evidence he said that he was sexually abused by an aunt when he was 4 or 5 years of age and his aunt was 18 or 19. 21. He also said in his evidence that he moved residence constantly and changed schools accordingly. He agreed with the proposition put to him by Mr O'Sullivan that drug usage has wrecked his life, and he also acknowledged that supplying drugs to other people has the real potential of wrecking their lives. 22. In view of that evidence, and in light of the plea of guilt, I find that the Offender is remorseful. He has acknowledged his responsibility for the offending, as well as the effects that his offending has had upon the community. 23. Being in prison has brought a significant benefit to the Offender, in that during the time that he has been in custody, he has been free of all drugs, and he stated in his evidence that, "I'll never touch another drug in my life again now that I don't have that on my back, you know". He also told the Court that in custody he did the EQUIPS addiction program. 24. In cross-examination he confirmed that the use of drugs commenced at an early age. He was asked questions about the number of supplies that he performed during the relevant period charged. He also agreed that at the time of the offending he was also using cocaine, and occasionally MDMA. He agreed with the proposition that he had told Dr Bench that his current period without drugs is the longest that he has abstained since the age of 13. 25. It was necessary, by reason of the fact that the Offender did not have a copy of the Agreed Facts or the report by Dr Bench, to adjourn the sentence hearing part-heard. On 3 August 2020 and 5 August 2020 on that occasion further evidence-in-chief was given. He was asked some additional questions about the history provided to Dr Bench which he adopted. 26. My impression of the Offender in the course of giving evidence was that he was telling the truth. It is encouraging that he has decided to abstain from taking drugs, and I hope that continues when he is eventually released from prison. 27. Also before the Court was a Sentencing Assessment Report dated 30 July 2020, marked Exhibit B. It was confirmed in that report that the Offender was selling drugs as he was paying off a drug debt. He also confirmed that he was consuming 2 grams of ice per day. 28. The Offender expressed remorse to the author for his offending, predominantly in the context of letting his father down. As stated, I have observed this in the context of his evidence here, his acknowledgment of the harm done by his offending is more expansive. He was assessed as being at a medium risk of reoffending. In my view, if the Offender manages to stay off drugs, which would be in his best interest, then plainly his risk of reoffending similarly diminishes. 29. Dr Bench took a history of the Offender's upbringing. His parents moved repeatedly. He as a result moved houses regularly and schools regularly. He was ultimately expelled from school due to drug use. Initially, he commenced work as a supplier for a pharmaceutical company, although since 2006 he has been providing care to his father who suffered a stroke. At the time of his arrest he was in receipt of a carer's pension. The Offender has 2 children, a 13 year old son and an 8 year old daughter, with whom he has, regrettably, no contact. 30. At the time of his arrest he was in a relationship with Lisa, and had been for 7 or 8 years. I note that Lisa has also been charged with offences relating to drug supply. In fact, I take this opportunity to note that, following a request by the Court, the parties prepared a parity table, MFI 1, which sets out the details of charges laid against other persons referred to in the Agreed Facts. It is agreed between the parties, and accepted by the Court, that parity does not arise in these circumstances. 31. Returning to the report of Dr Bench. The Offender's past medical history is generally unremarkable, save for a head injury, from which he seems to have recovered. I have already made observations about his drug use, which are referred to in the report of Dr Bench and in the evidence of the Offender. 32. In the context of considering his past psychiatric history Dr Bench referred to anxiety, as well as being sexually abused as a child. Notwithstanding that abuse, it was the view of Dr Bench that the Offender did not meet the diagnosis for Post-Traumatic Stress Disorder. 33. There was also consideration given by Dr Bench to a diagnosis of a psychotic disorder, there being symptoms of that condition which were ultimately insufficient to meet the diagnostic criteria. Dr Bench noted a background history of anxiety and depression, and diagnosed a Cluster B personality disorder with antisocial and borderline traits. He also referred to a number of drug use disorders. 34. The report by Dr Bench, although detailed, does not readily permit an assessment as to whether he has diagnosed a major depressive disorder or anxiety. It is certainly referred to in a number of places. It would appear that Dr Bench formed the opinion that the diagnosis of Cluster B personality disorder best encapsulated the symptoms suffered by the Offender, and the conditions from which he may suffer. 35. In considering the cause of offending Dr Bench stated: It is evident the most significant factor contributing to his engaging in these offences is clearly his prodigious substance dependence. 1. Nevertheless, it is plain from the report of Dr Bench that he was of the opinion that the Offender suffered from a psychiatric disorder, as well as the addiction. 2. Submissions were handed up on behalf of the Offender, and were marked Exhibit 3. It was acknowledged by Mr O'Sullivan of counsel that conditional liberty is an aggravating factor. I have already made that finding. He invited the Court to have regard to the considerations given by the High Court in the matter of Bugmy to deprivation of upbringing. 3. Whilst it is plain that the Offender's lifestyle as a child was far from ideal, and indeed challenging, the evidence does not rise to the level of Bugmy in my view. It does, however, provide some context within which to understand the early onset of drug use which continued throughout the Offender's life. It might be said that the Offender commenced using drugs at an age where rational choice was not readily available to him, perhaps affected by the environment of his childhood, involving the disruptive effects of moving and the like. 4. In the course of addresses I asked Mr O'Sullivan what he made of the report by Dr Bench, or rather what he asked the Court to make of the report by Dr Bench. At p 15 of the transcript I summarised what I understood as being submitted. That is that there were 3 uses to which the report may be put. 5. One is to found a Bugmy type submission based on his upbringing and childhood, et cetera. 6. The second is to say that, in the process of synthesising all the information, it would include the diagnostic matters referred to by Dr Bench, and would reduce the seriousness of the Offender's conduct, that is his moral culpability. 7. Thirdly, it would support a finding of special circumstances. 8. In relation to those 3 matters, whilst I decline to find Bugmy in those terms, I do find that he had a challenging childhood which was exacerbated by drug use. I have also taken into account his childhood and upbringing. I have engaged in an instinctive synthesis, considering the objective seriousness of the offending and the subjective circumstances of the Offender, in order to determine a sentence that best reflects both of those considerations. I also intend to find special circumstances. 9. I now return again to the written submissions on behalf of the Offender. Counsel referred the Court to the decision of the CCA in the matter of Parente, and in particular to the general principles commencing at para 107 of that judgment. The Court in that judgment suggested that in matters such as this, being matters involving drug supply, the Court should give consideration to a number of factors, including the usual purposes for sentencing set out in s 3A of the Crimes(Sentencing Procedure)Act, and in particular the need for deterrence in relation to offending of this type. 10. Secondly, the Court should regard to the maximum sentence as a guidepost. 11. Thirdly, the principle enunciated by Simpson J in the matter of Robertson where her Honour stated that drug dealing to a substantial degree will ordinarily result in an imposition of a sentence of imprisonment, and finally, in the context of determining the s 5 threshold question. In relation to that matter, it was conceded on behalf of the Offender that the s 5 threshold was crossed. Accordingly, I make that finding. 12. In terms of the objective seriousness of the offending, there is no need in this particular case to distinguish between the separate counts, as they generally involve the same degree of offending. I note that in relation to sequence 1 there were 195 supplies over the course of the month, totalling 133.37 grams. On my rough calculations that accords with about 6.5 supplies per day with about 0.7 grams per supply. 13. In relation to Count 2, similarly, the amounts supplied over the period referred to comes to about 7 supplies per day, of about 0.6 grams per supply. 14. In relation to Count 3, over the shorter period, the supply amounts to about 6 transactions per day, of about 0.5 grams of drugs per supply. 15. It was submitted on behalf of the Offender that the objective seriousness of the offending fell just below the midrange. The Crown adopted that submission. I make that finding, having regard to: 1. the number of suppliers; 2. the quantity of the drug supplied; and 3. the absence of any evidence as to the sophistication of the operation engaged in by the Offender. 1. I find the planning and organisation was such that it did not rise above the level which one would ordinarily expect for offending of this type, so as to aggravate the offending. 2. The Court was also assisted by submissions on behalf of the Crown. They began by setting out a number of general principles in relation to ongoing supply. I have read those submissions, and I do not intend to recite them now, save to observe that ongoing supply is a serious criminal offence which calls for stern punishment. 3. One matter which does require consideration and determination is the commencement date of any sentence to be imposed. Commencing at para 38 of the Crown's submissions, information as to presentence custody is referred to. 4. In the course of addresses, submissions as to this matter were made on behalf of the Offender. It was submitted, by Mr O'Sullivan, that a commencement date prior to today ought to be adopted by the Court. Plainly given that the Offender has been in custody solely referable to these charges since 17 March 2020 the latest day for commencement ought to be that date. In addition, in my opinion, there ought to be some further backdating so as to accommodate the principle of totality, bearing in mind that the Offender was serving a period in custody between 5 September 2019 and 17 March 2020, owing to the revocation of the ICO caused by this offending. 5. It was submitted on behalf of the Offender that the commencement date ought to be 5 December 2019, being about 3 months after the commencement date for the sentence imposed by the revocation of the ICO. I accept that submission, and intend to commence the sentence from 5 December 2019. 6. In considering the appropriate sentence of course the Court must have regard to s 3A of the Crimes(Sentencing Procedure)Act, being the purposes for which a Court may impose a sentence upon an offender. The first is to ensure adequate punishment. The second is deterrence both of the offender and others, as I have already observed, that looms large in case of drug supply. 7. The next, which is aligned to the latter, is to protect the community from the offender. The fourth, and not irrelevant here, is to promote the rehabilitation of the offender, while accountability, denunciation and recognition of harm done to victims are the other purposes for sentencing set out in s 3A. 8. In considering the Offender's subjective case, I have already made observations about the submission made concerning Bugmy, and whilst I am prepared to conclude that the Offender had a challenging upbringing and was troubled by drugs from an early age, the question is what effect that has upon sentence. In my view, the fact that the Offender formed an addiction to drugs at an early age is a relevant consideration. Unlike other cases, where an adult chooses to use drugs and thereafter offends, a child who becomes addicted to drugs does not make that choice in a rational context. That calls for some consideration, especially in cases where an offender suffers also from a psychiatric condition. 9. I note the observations of Basten J in the matter of Dang, where his Honour stated at para 25: The law recognises the inappropriateness of convicting a person unable to distinguish right from wrong and indeed a person who is unable adequately to understand the process of a plea in trial. Further even where the criminal law has run its course the law recognises the relevance of mental illness in diminishing culpability for the purpose of assessing an appropriate sentence but the distinction between mental illness and mental health is not a bright line, nor is the assessment of moral culpability based on a freedom of choice transparent. 1. His Honour continued at para 30: The circumstances of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice. 1. In my view, the Offender's moral culpability is reduced, both by his early addiction to illicit drugs and also as a result of the psychiatric conditions referred to by Dr Bench. 2. Having found that the s 5 threshold has been crossed, all that remains is to sentence the Offender. Plainly, an Intensive Corrections would not be appropriate, and is not contended for by Mr O'Sullivan, counsel for the Offender. 3. I intend to impose an aggregate sentence in relation to the charges. First I must provide indicative sentences in respect of the 3 counts. 4. In relation to Count 1, with a Form 1 attaching, I provide an indicative sentence after discount of 25% of 3 years. 5. In relation to Count 2, I provide an indicative sentence after a discount of 25% of 2 years. 6. In relation to Count 3, I provide an indicative sentence, with the Form 1 attaching, and after discount of 25% for the guilty plea, of 3 years. 7. Mr Woodley, you are convicted of the charges on the Crown sentence summary, being sequence 37, supply prohibited drug on an ongoing basis. 8. You are also convicted of sequence 38 being the same charge. 9. You are further convicted of sequence 39, and again being the same charge. 10. In respect of those 3 charges, I impose an aggregate sentence consisting of a non-parole period of 3 years, commencing 5 December 2019, and a head sentence of 6 years. You will be eligible for parole on 4 December 2022. 11. I note that the following charges are withdrawn and dismissed, being sequences: 1. 1-5; 2. 7-12; 3. 14-15; 4. 17-22; 5. 24-28; and 6. 34-36. 1. The final direction I will make is that the report by Dr Bench of 29 May 2020 accompany the Offender's warrant of commitment. ********** NOTE: A. These remarks on sentence were revised without access to the Court File. I certify that the previous 87 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. Associate James Bailey 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: 03 November 2020