R v Walton [2021] NSWDC 121

District Court New South Wales

Medium Neutral Citation: R v Walton [2021] NSWDC 121 Hearing dates: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 5 years 3 months with a non-parole period of 2 years, 10 months. Catchwords: CRIME – Supply prohibited drug >= commercial quantity – Take part supply prohibited drug > indictable & < commercial quantity SENTENCING — Relevant factors on sentence — late guilty plea- two different drugs- Form 1 matters- role in criminal group - parity- solid prospects for rehabilitation- Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Cases Cited: Afu v R [2017] NSWCCA 246 Attorney General's Application No. 1 (2002) 56 NSWLR 146 Green v The Queen (2011) 244CLR 462 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Lau v R [2010] NSWCCA 43 Markarian v The Queen (2005) 228 CLR 357 R v Ognenovski (2020) NSWDC 884 Category: Sentence Parties: Thomas James Walton (the offender) Director of Public Prosecutions Representation: Counsel: Mr B Clark (for the offender)

Solicitors: Kells Law (for the offender) Ms A Bird (for the Director of Public Prosecutions) File Number(s): 2019/00255550

SENTENCE - EX TEMPORE REVISED 1. Thomas Walton is for sentence today for two particularly serious offences. The first, is supply of a commercial quantity of cocaine, 527.75 grams: s 25(2) Drug (Misuse and Trafficking) Act 1985. The maximum penalty for that offence is 20 years imprisonment, and for an offence which taking into account only objective factors falls in the middle of the range, Parliament has said that there shall be a standard non‑parole period of ten years. The second offence is knowingly take part in the supply of a prohibited drug methylenedioxymethylamphetamine, MDMA: s 25(1) Drug (Misuse and Trafficking) Act 1985. The maximum penalty for this offence is 15 years. 2. Walton was born in 1988. He has not had a conviction recorded against him. He has a solid family. He had a good career and a trade. He has been in gaol since his arrest on 16 August 2019 and as a consequence of his drug dealing activity he will spend more time in gaol. 3. The risk of the heavy sentences fixed by Parliament is meant to deter members of the community from engaging in the supply of illicit drugs. Tragically for Walton, and tragically for many others, the warnings regularly expressed by myself and other judges were not heeded by him. 4. He entered a plea of guilty to the two charges when the matter came before the District Court. It is put on his behalf that there were protracted negotiations with the Director of Public Prosecutions prior to the matter coming to this Court, and that the difficulties in obtaining instructions and reviewing the brief with the client between solicitor and client delayed the matter so that an earlier plea could not be entered. I accept that this matter was not listed for trial or prepared for trial and I am prepared to accept that there is, and has been, an acceptance of responsibility. But Parliament, has made it clear that where a plea is entered in the District Court I can only reduce the otherwise appropriate sentence by 10% to reflect the utilitarian value of the plea of guilty: s 25D(2) Crimes (Sentencing Procedure) Act 1999. 5. The plea does have other value, which I will take into account and synthesise in my ultimate sentence. It shows an acceptance of responsibility, and that acceptance of responsibility bodes well for Mr Walton's prospects when he is released from gaol. 6. I am also asked to take into account, when I sentence for the commercial supply matter, five matters on a Form 1. Some are related to the matters for sentence. Both offences occurred within the context of his participation in a criminal group, and the proceeds matter also reflects the fact that he was involved in the supply of drugs. 7. There is a weapons matter, involving a TASER, which causes me some concern. There are other matters which would not ordinarily attract a gaol sentence. A nuanced approach is required when taking into account such matters. Further, I must be careful when I come to assess the objective seriousness of the matters for sentence not to double count, or double punish, for matters which are also on the Form 1. I am not imposing a separate penalty for the Form 1 offences but those matters do operate to increase the sentence that would otherwise be appropriate. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Markarian v The Queen (2005) 228 CLR 357; Attorney General's Application No. 1; (2002) 56 NSWLR 146 at [39] – [42]. I have already sentenced one co‑offender Ognenovski. After an early guilty plea he received a sentence of seven years, three months with a non‑parole period four years, three months. His remarks in uncorrected form are before me as MFI #3: see R v Ognenovski (2020) NSWDC 884. 8. Ognenovski was sentenced for more drugs, and so far as I am able to discern his role in the hierarchy was higher than Walton and Owen. He was also involved higher up in the syndicate and with others in separate criminal groups. 9. This sentence must be determined having regard to the circumstances of any co‑offender, their respective degrees of culpability. Like must be compared with like, however different personal and criminal histories can justify a real difference in the time each will serve in prison. This principle, known as parity, is a classic example of the need so far as possible to ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. I note that in like cases, particularly similar subjective circumstances that go to prospects for rehabilitation, that principle can also encompass the structure of a sentence and its non‑parole period: Lau v R [2010] NSWCCA 43. I note that the co‑offender Owen is for sentence by me in April 2021. 10. There are agreed facts before the Court. They relate to the nature of the criminal group matter on the Form 1 and the specifics of the supply of cocaine which involved ten transactions that were rolled up into the 527 grams. The defence accept it is appropriate that process should be followed: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217 11. The MDMA was in both tablet and rock form. The MDMA, and other drugs, and the TASER - the matters on the Form 1 - were found on arrest. It is accepted by the Director of Public Prosecutions that Walton was not aware of the quantity of the MDMA, for which he has, by his guilty plea, accepted responsibility. 12. So far as the criminal group is concerned, the matter on the Form, it had one aim; to make money for the sale of drugs. 13. The role of the offender remains relevant to my assessment of the objective seriousness of the offence for sentence and its location in the notional range of sentence. It is clear that this offender and Owen were both inexpert drug dealers. It is clear they were being, to an extent, used by Ognenovski to store the product on site, including of course the MDMA. But Walton's role was integral and he ran his part of the business with Owen. 14. The principles regarding harsh deterrent punishment apply to anyone who engages at any level in drug supply networks. So far as the MDMA are concerned Walton was assisting Ognenovski to avoid detection. Those drugs were not disseminated, but that was only because he was caught with them. It was his intention that they be disseminated. 15. As is common with all offences both matters for sentence were committed without regard to public safety, and were part of organised criminal activity, but that is a matter also on the Form 1. 16. The cocaine was disseminated into the community. It involved dealing in the drug to a substantial degree. It involved direct supply to users and others who it appears may have been selling further down the line. It involved a relatively large quantity of the drug. 17. It is axiomatic that rolled up quantities involve a series of criminal acts, so care must be taken not to double count that factor which is also found in s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The number of occasions, here ten occasions, remains a relevant consideration. 18. The supplies occurred between May and August 2019. The offender's role was to receive drugs from Ognenovski, package them and supply them to others. Walton was above others in the chain but below Ognenovski in any hierarchy - as he did not source the drugs. 19. There are substantial agreed facts which set out things that were said and recorded on listening devices. I won't recount them but I have read them and re-read them. 20. All the material before me indicates it was expected that his debts to Ognenovski, which Mr Clark submits I should find on balance were drug debts, should be gone by June. But Walton was still on "tic," it appears for $14,000 in July. Whether the debt was a cocaine debt or some other debt is not really of particular relevance. Drug use in such situations cannot and does not mitigate the offence of supply in situations as this. It is also recorded in the agreed facts that the offender was interested in "seeing some money," but it appears that he saw very little profit in cash terms. 21. The offences for sentence call for a substantial term of imprisonment. 22. I will treat Walton as a first offender. He has two minor matters but no convictions were recorded against him. There are also two minor gaol discipline matters, but I put them to one side given the positive comments by many Corrective Services Officers about his hard work in custody. These are noted in the Sentence Assessment Report. 23. In the Sentence Assessment Report, Exhibit B, he told the officer who prepared the report about his drug use, and that he wanted money to fund his drug use. There is evidence in the report supported by a mound of evidence before me and the presence of friends and family in court, of a supportive family. The material from them verifies the fact that he was employed and he remains employable. 24. There are statements showing acceptance of responsibility and regret for the harm caused by the sale of illicit drugs, and also regret for all the harm that he has caused his family. An appropriate level of remorse was found by the Corrections officer who prepared the report. The Sentence Assessment Report indicates that he has shown insight and has engaged in Remand Addiction courses and taken advantage of other programs and opportunities available to him in custody. The officer who prepared the report is confident that on release he will not require a supervision plan. 25. The offender wrote a letter to me. Judges are entitled to be sceptical of such letters; particularly when not supported by sworn evidence. But in his letter Walton did not seek to canvas any of the objective circumstances of the offence that put him in custody. What he sets out is consistent with all the material before me - that he is greatly embarrassed and ashamed and disappointed in himself for bringing shame on his family and friends and his partner. He describes his behaviour as "reckless" and that looking back on it he accepts it was inevitable he would be arrested and gaoled. 26. He confirms what is reflected in the other material before me that he has been using his time in custody to prove to the Court, to prove to Corrective Services, but more importantly to prove to his family, that on release he will resume his place as a law abiding member of the community and work hard to assist others. He purports to be a changed man. 27. I will give him an opportunity to prove himself, but obviously if he fails there will only be one outcome, he will be returned to custody. 28. There are a number of references before me. Some ask for things that I cannot give, but otherwise they reflect a uniform view that the offender has reflected on what brought him to custody and demonstrated the resolve to return to normal community life. His parents speak of a man who is different than the boy they knew; who has grown up in custody. Other friends speak of his honesty and trustworthiness and his remorse. 29. His partner professionally is well equipped to help him stay true to his promises. Walton has much to work for on release. 30. Mr Clark, his counsel, spoke to submissions prepared by Walton's solicitor, Mr Schmidt. Ms Bird for the Director of Public Prosecutions provided both oral and written submissions. Both set out the applicable principle, and their oral and written submissions have informed this judgment. As I indicated in discussion with counsel there are some aspects of Mr Schmidt's written submissions that I cannot accept. I cannot take into account asserted extra curial punishment, and I am not unaware of the relevant principles relating to a finding of special circumstances. 31. Where the written submissions differ when it comes to the role overall of this offender, I could not and will not categorise his role as minimal. He played a vital, integral part in the distribution network under Ognenovski. He knew what he was doing. He expected drugs and money, not just to repay any debts, but to provide money for himself. He willingly engaged in this role. He did not bring any particular skills to his role as a drug dealer, but frankly none was required. His drug use may explain why he did what he did, but it does not mitigate his offending or go to any objective circumstance. 32. It is clear however that whatever the problems were that led him to drug supply, his growing maturity and the insight gained in custody leave me with reasonable confidence that he will not again engage in the lifestyle that led him to gaol. 33. Synthesising all those matters: Walton has solid prospects for the future and he has very strong prosocial support. That support will continue. As Mr Clark submits, too long a period in custody can break prosocial ties and lead to associations being resumed with prior criminal associates or those met in gaol. This fact is so ubiquitous in this Court it is the subject of the next sentence I will have to deal with today. 34. No supervision is required, but Walton will need help in adjusting to normal community life. His progress towards rehabilitation will need to be monitored. He has demonstrated excellent progress towards rehabilitation in custody, significantly more than many of the cases that regularly come before me. He has tried to do his best while he is in custody to prove himself to Corrective Services, to the Court and to his family. The longer he spends in custody the greater the chance that all that effort would be put to aside. And here is the paradox of this matter; the longer he spends in custody, the worse his situation will be. 35. In a sense I agree, but I cannot accept, his friend's remark that he should be released today - harsher punishment will not lead to greater protection for the community so far as he is concerned. But mitigating factors can go only so far in a sentencing exercise. A judge has to take into account all the purposes of sentencing. 36. I have to return to the seriousness of what was done, in particular by the commercial supply of the two drugs. I have to take into account the matters on the Form 1. There are two matters for sentence and there must be some accumulation between them. 37. While every offence and every offender require individualised treatments, courts must take guidance from a number of sources, not just the subjective material put before me. The maximum penalty prescribed is one guide. There is a need, while it is by no means prescriptive, to give some weight to the standard non-parole period. The decisions of other courts and consistency in sentencing require consideration, particularly those designed to give guidance to sentencing judges. And, the purposes of sentencing, which here importantly include the deterrence of others from committing similar crimes. So far as the deterrence of this offender I am quite sure that purpose has been met by the time spent in custody. There must also be proper recognition by the severity of the sentence of the harm done to the community by the trade in illicit drugs. 38. There will be convictions for the two matters. I note that Count 1, the commercial supply takes into account the Form 1. There will be an aggregate sentence. Each indicative sentence reflects all of the matters that I have taken into account, but I have also reduced each by 10% pursuant to s 25D Crimes (Sentencing Procedure) Act 1999 to reflect the utilitarian value of the plea of guilty. I have rounded down; sentences should not be expressed in days or hours as appears to be required by the strict wording of s 25D. I have taken into account all of the principles I have set out above.